NYSBA Task Force Memorandum

Staff Memorandum
HOUSE OF DELEGATES
Agenda Item # 11
REQUESTED ACTION: Approval of the report and recommendations of the Task Force
on Nursing Homes and Long-Term Care.
The Task Force on Nursing Homes and Long-Term Care was appointed in 2020 to review
the long-term care sector’s pandemic experience. The Task Force reviewed the statutory
and regulatory framework under which nursing homes and other long-term care facilities
operate and examine the effects of COVID-19 on these facilities and their residents. In
the course of its work, the Task Force consulted with a number of individuals and
organizations with expertise in the effects of the pandemic and assigned members to
three subcommittees: Nursing Homes, Other Long-Term Care Settings, and Govern-
ment/Regulatory Structure.
As a result of its study, the Task Force is making recommendations in the following areas:
· Protecting public health.
· Preparing for emergencies.
· Providing clear guidance.
· Preventing the spread of communicable diseases.
· Collecting and disseminating information.
· Allocating resources.
Comments on this report were received from the Committee on Disability Rights, Elder
Law & Special Needs Section and House member Steven Richman.
The report will be presented at the June 12 meeting by Task Force co-chairs Hermes
Fernandez and Sandra Rivera.
Report and Recommendations
of the Task Force on Nursing
Homes and Long-Term Care
June 2021
The views expressed in this report are solely those of the Task Force and do not represent those
of the New York State Bar Association unless and until adopted by the House of Delegates.
New York State Bar Association
Task Force on COVID-19 in New York
Nursing Homes and Long-Term Care

Members of the Task Force on
Nursing Homes and Long-Term Care
Hermes Fernandez, Esq. Sandra D. Rivera, Esq.

Co-Chair Co-Chair
John Dalli, Esq.
John Henry Tator Dow, III, Esq.
William S. Friedlander, Esq.
Simeon Goldman, Esq.
David Ian Kronenberg, Esq.
Richard C. Lewis, Esq.
Mary Beth Quaranta Morrissey, Esq., Ph.D.
Lori E. Petrone, Esq.

Violet E. Samuels, Esq., R.N.
Joanne Seminara, Esq.
Francis J. Serbaroli, Esq.
Sheila E. Shea, Esq.
Jeffrey J. Sherrin, Esq.
Thomas K. Small, Esq.
Executive Committee Liaison
Mark J. Moretti, Esq.
Advisor to the Task Force
Dr. Elin A. Gursky, ScD, MSc, IDHA
Research Assistant to the Task Force
Craig W. Anderson, Esq.
NYSBA Staff Liaison
Thomas J. Richards, Esq.

TABLE OF CONTENTS
Page
Acknowledgements ......................................................................................................... 4
Introduction ..................................................................................................................... 4
A. Task Force Appointment and Mission .................................................................. 7
B. Descent Into the Pandemic .................................................................................. 9
1. Recognition of COVID-19 ................................................................................ 9
2. Early Spread of COVID-19 ............................................................................ 10
3. The Virus Continues to Spread ..................................................................... 14
4. The Need for Sufficient Hospital Capacity. .................................................... 17
C. The Pandemic Comes to Nursing Homes .......................................................... 19
a. The March 25th Directive .......................................................................... 21
b. The Attorney General Report ................................................................... 22
II. The Role of Government in Responding to a Pandemic .......................................... 24
III. Responsibilities of Government in Responding to a Pandemic ................................ 25

A. Protecting the Public Health. .............................................................................. 25
B. Preparing for Emergencies. ................................................................................ 26
C. Responding to Emergencies............................................................................... 27
D. Preventing the Spread of Communicable Disease. ............................................ 29
E. Collecting and Disseminating Information. ......................................................... 30
F. Allocating Scarce Resources. ............................................................................. 31
IV. A State and Nation Unprepared ............................................................................... 32
V. The Impact on Nursing Homes and their Residents................................................. 36

A. The Regulatory Structure for Nursing Homes in New York ................................ 39
1. The Federal-State Regulatory Structure ....................................................... 39
2. The Nursing Home Inspection Process ......................................................... 40
3. The CMS Five-Star Rating System ............................................................... 41
B. Pre-Existing Issues in Nursing Homes ............................................................... 43
1. Infection Control ............................................................................................ 43
2. Staffing .......................................................................................................... 44
3. Ownership and Other Facility Characteristics ............................................... 50
i
C. The New York Nursing Home Experience During the Pandemic ........................ 52
1. The Impact of the March 25th Directive ......................................................... 64
VI. Impact of COVID-19 in Other Long-Term Care Settings .......................................... 69

A. Adult Care Facilities............................................................................................ 69
1. Regulatory Structure ..................................................................................... 69
2. The Coronavirus Pandemic and the Experience of Adult Care Facilities ...... 71
B. Home Care ......................................................................................................... 79
a. Special Considerations for Palliative Care ............................................... 83
C. Office for Mental Health Operated and Licensed Facilities ................................. 84
a. Oversight ................................................................................................. 89
2. The Coronavirus Pandemic ........................................................................... 90
D. Office for People with Developmental Disabilities............................................... 96
2. The Impact of the Coronavirus Pandemic ................................................... 101
VII. Conclusion ........................................................................................................ 107
VIII. Recommendations............................................................................................ 111

A. Protect Public Health ........................................................................................ 112
1. Rethink the Delivery of Long Term Care ..................................................... 112
2. Meaningful Agency Enforcement ................................................................ 114
a. Review Regulatory Standards ............................................................... 114
b. Survey Process ...................................................................................... 115
c. Address Under-Performers .................................................................... 115
B. Prepare for Emergencies .................................................................................. 116
1. Support for Staffing ..................................................................................... 116
2. Visitation and Home Visits........................................................................... 117
C. Clear Guidance................................................................................................. 118
D. Prevent the Spread of Communicable Diseases .............................................. 118
1. Empowered Infection Control Officers ......................................................... 118
2. COVID-19 Nursing Homes and Wards ........................................................ 119
E. Collect and Disseminate Information ................................................................ 119
ii
F. Allocate Resources........................................................................................... 119
G. LONG TERM CARE NEEDS AS A PRIORITY ................................................. 120
H. REMOVE POLITICS FROM THE EQUATION ................................................. 121
iii
Acknowledgements
The Task Force extends its thanks to the individuals who helped the Task Force
complete its work and prepare this Report. We want to thank Elin Gursky, Sc.D., M.Sc.,
IDHA, who functioned as a Task Force member, and provided valuable advice on the
epidemiology of the virus and issues the Task Force should consider.
Craig Anderson, now with Reed, Smith, and formerly with Bond, Schoeneck &
King, PLLC, volunteered to assist the Task Force at its inception, and provided valuable
assistance in compiling the applicable law and regulations.
Caitlin Anderson and Catherine Graziose, associates with Bond, Schoeneck &
King, graciously provided assistance with the hundreds of footnotes in this Report.
We must also thank Forest Melcher, a student at Pace Law School, for her
assistance in compiling source material and footnotes. Our thanks also go to Krystal
Macharie, a student at Albany Law School, and Michael R. Jorolemon, DO, FF/EMT-P,
FACEP, FAAEM, FAEMS, who is also a student at the Syracuse University College of
Law, for the work they did in compiling the facility-specific information found in Appendix
IV regarding nursing homes.
Finally, we want to thank Thomas Richards, NYSBA’s Deputy General Counsel,
for all the support he provided in multiple ways to the Task Force.
Introduction
The COVID-19 pandemic – a public health crisis unmatched in a hundred years –
has been a devastating ordeal. As of this writing, more than 569,000 Americans have
died, including more than 40,000 New Yorkers. The virus has been particularly
devastating to older individuals. Nursing home residents, an older and more vulnerable
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population, including older people of color and those living with disabilities, have been
disproportionately impacted by the pandemic. As members of the New York State Bar
Association and the larger legal community, we are committed to ensuring that laws and
policies adequately protect vulnerable populations and guarantee equitable access to
high quality care.
The challenge of unraveling the complex picture presented by the
intersectionality of age, race, ethnicity, neighborhood, income inequality, disability,
chronic illness, and place of residence in the long-term care system as affected by the
pandemic is a daunting one. Nursing homes, as well as other long-term care settings,
have emerged as sites of suffering, isolation and loss of loved ones. The Task Force
has been asked to examine what has happened during the pandemic to those receiving
long term care. Further, the Task Force examines whether the adverse events suffered
by those receiving long-term care in New York systems could have been avoided. The
Report focuses first on those in New York’s nursing homes. There, the level of death
from COVID-19 has been greatest. The Report also examines what has occurred in
other long-term care settings: namely, adult care facilities, facilities and residences
operated or certified by the State Office for Developmental Disabilities, facilities and
residences licensed by the Office of Mental Health, and in-home care.
Pre-existing structures account at least in part for the catastrophic nature of the
pandemic we have experienced over the last year. A range of issues that the Task
Force have identified as critical and integral components of the pandemic experience
and outcomes are addressed in this Report. The issues span structural, governmental,
and provider level systems. Allocation of resource decisions at all levels impacted the
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provision of care, particularly in allocations to the hospital systems before allocations
were made to nursing facilities and then to other levels of long-term care. Pre-existing
resource allocations to infection control, staffing and training at the provider level all
affected the pandemic’s impact upon long-term care recipients. Although considerable
evidence documenting the pandemic’s impacts across multiple domains is available,
including certain systems data and data analyses, the evidence available for review is
by no means complete. The Report is written as the numbers of individuals becoming ill
continues to rise and fall, throughout the State, nation and the world. The virus
continues to mutate. The advent and distribution of effective vaccines is cause for great
optimism. Thankfully, vaccines seem to have curbed further virus outbreaks in the
State’s nursing homes, though vaccination reluctance among staff is a cause for
concern. The virus continues as a threat, and may even threaten the vaccinated. But
for the successful vaccine development, nursing home and other long-term care
residents would still be at grave risk.
The history of the virus is still being created, and it is far from being fully written.
Further in-depth studies will need to be conducted to glean insights into the multiple and
variegated dimensions of COVID-19.
Although the Task Force was unable to resolve all questions, or perhaps even
most questions, the Task Force has been able to identify certain linkages, and does
make certain recommendations based upon existing evidence, including systems
reforms. We can say with certainty that major policy changes will be necessary to
address the needs of those affected by the present pandemic and minimize the
consequences of future emergent diseases.
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A. Task Force Appointment and Mission
The Long-Term Care Task Force of the New York State Bar Association was
appointed by current President Scott Karson in July 2020. The mission of the Task
Force is to systematically review the long-term care sector pandemic experience. In
particular, the Task Force undertook a review of the statutory and regulatory framework
under which nursing homes and other long-term care providers operate in New York
State; examined the effects of the COVID-19 crisis on institutional and community-
based providers and the individuals they serve; and now makes recommendations for
change including to applicable statutes, policies, and regulations where needed.
The Task Force commenced its work in August 2021 and conducted biweekly
meetings over seven months. The Task Force heard from representatives of a number
of organizations who were involved in or with expertise in the impact of the pandemic in
different long-term care settings.
They were:
Richard Mollot, Long Term Care Community Coalition
Bryan O’Malley, Consumer Directed Personal Assistance Association of

New York State
James Clyne, LeadingAge NY
Stephen Hanse, NYS Health Facilities Association
Christina Towne, Sivan Rosenthal, NYS Nurses Association
Claudette Royal, NYS Nursing Home Ombudsman
Ruth Heller, Todd Hobbler, Service Employees International Union (SEIU)

Local 1199
J.R. Drexelius, Developmental Disabilities Alliance of Western New York
Bill Hammond, Empire Center for Public Policy
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Task Force member Sheila Shea also made a presentation to the Task Force on
the systems operated and governed by the Office of Mental Health and Office for
People with Developmental Disabilities.
After hearing from most of the experts, Task Force members were assigned to
one of three committees to prepare the Report:
• Examination of Nursing Homes – to review what occurred in nursing homes.
• Examination of Other Long-Term Care Settings – to review what occurred in
other long-term care settings such as community-based care, and care in facilities
overseen by the Office for Mental Health and the Office for People with Developmental
Disabilities.
• Government/Regulatory Structure – to review the role of government and the
current laws, regulations and guidance, including guidance developed in response to
COVID-19, related to nursing homes and other long-term care settings.
This Report is based on the period from the onset of the pandemic through the
end of April 2021. As such, the Task Force recognizes that it is attempting to review
and provide recommendations while the pandemic is still ongoing. The charge ahead is
to better manage the remainder of the pandemic and emerge from the COVID-19 crisis
better prepared for future public health emergencies and disasters – both those
foreseen and unforeseen.
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B. Descent Into the Pandemic 1
1. Recognition of COVID-19 2
The novel coronavirus, what we now commonly refer to as COVID-19, is a new
disease. COVID-19 is itself an acronym for Coronavirus disease 2019, meaning that
this form of coronavirus was discovered in 2019. COVID-19 is caused by the severe
acute respiratory syndrome coronavirus-2 (“SARS CoV-2”). The disease first appeared
in Wuhan, China in late 2019. 3 On the third of January, 2020, the BBC ran a story
about a mystery virus in Wuhan that had infected 44 people. 4 The Chinese government
made little public comment. 5 Nevertheless, the Taiwanese government, alarmed by
what it was observing in Wuhan, sent an email to the International Health Regulations
(“IHR”) focal point under the World Health Organization (“WHO”), informing WHO of its
understanding of the disease and also requesting further information from the WHO. 6
Taiwan activated enhanced border control measures that day. On January 11th, China
announced its first death. 7
2 Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. TIMES (Mar. 17, 2021),
https://www.nytimes.com/article/coronavirus-timeline.html.
3 The first identifiable case of what is now known as COVID-19 appeared in Wuhan, China on November
17, 2019. Susie Neilson & Aylin Woodward, A Comprehensive Timeline of the Coronavirus Pandemic at
1 Year, From China’s First Case to the Present, BUS. INSIDER, (Dec. 24, 2020),
https://www.businessinsider.com/coronavirus-pandemic-timeline-history-major-events-2020-3.
4 China Pneumonia Outbreak: Mystery Virus Probed in Wuhan, BBC (Jan. 3, 2020),
https://www.bbc.com/news/world-asia-china-50984025.
5 On December 31, 2019, Chinese health officials informed the World Health Organization of a cluster of
forty-one pneumonia patients in Wuhan. Archived: WHO Timeline - COVID-19, WORLD HEALTH ORG,
(Apr. 27, 2020), https://www.who.int/news/item/27-04-2020-who-timeline---covid-19.
6 The Facts Regarding Taiwan’s Email to Alert WHO to Possible Danger of COVID-19, TAIWAN CTR FOR
DISEASE CONTROL, (Apr. 11, 2020), https://www.cdc.gov.tw/En/Bulletin/Detail/PAD-lbwDHeN_bLa-

viBOuw?typeid=158.
7 See Derrick Bryson, supra note 2.
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On January 23rd, China shut down Wuhan. 8 People were not allowed in or out
of the city. At the same time, we watched in amazement as a hospital city was built
seemingly overnight, with rows of long white buildings covering a large open area in
Wuhan.
In the United States, the Centers for Disease Control (“CDC”) issued its first
advisory regarding the virus on January 16th. 9 On January 21st, the first case reported
in the United States – in Washington State – was announced. The WHO announced a
Public Health Emergency of global concern on January 30th. 10 On January 31st,
President Donald Trump announced a partial ban on travel to and from China. 11.
2. Early Spread of COVID-19
By the end of January, the virus had been identified in four countries on three
continents, China, Thailand, Italy, and North America – in Washington State. Clearly,
the virus was spreading. The focus, though, remained on China.
On February 4th, the CDC announced that it had developed a test to identify
individuals who were positive for COVID-19. 12 Notably, South Korea announced it had
developed a test for COVID-19 the same day. 13 Testing was crucial to the plans to
keep COVID-19 in check. The plan at its core was very simple. Individuals showing
8 Id.
9 Id. The CDC was issuing statements at this time that the risk to the public was low. “For the general
public, no additional precautions are recommended at this time . . . .” CDC Confirms Person-to-Person
Spread of New Coronavirus in the United States CTRS. FOR DISEASE CONTROL (Jan. 30, 2020),
https://www.cdc.gov/media/releases/2020/p0130-coronavirus-spread.html.
10 See World Health Organization, supra note 5.
11 Geoff Whitmore, When Did President Trump Ban Travel from China? And Can You Travel To China
Now?, FORBES (Oct. 19, 2020), https://forbes.com/sites/geoffwhitmore/2020/10/19/when-did-president-

trump-ban-travel-from-china-and-can-you-travel-to-china-now/?sh=627f29f97484.
12 Shipping of CDC 2019 Novel Coronavirus Diagnostic Test Kits Begins, CTRS. FOR DISEASE CONTROL
(Feb. 6, 2020), https://cdc.gov/media/releases/2020/p0206-coronavirus-diagnostic-test-kits.html

[hereinafter “CDC”].
13 Victor Cha, A Timeline of South Korea’s Response to Covid-19, CTR. FOR STRATEGIC AND INT’L STUDIES
(Mar. 26, 2020), https://www.csis.org/analysis/timeline-south-koreas-response-covid-19.
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symptoms of COVID-19 would be tested. Those testing positive would be isolated until
they were no longer symptomatic, which was regarded as being no longer contagious.
The intent was to stay ahead of the disease to manage the disease.
The plan collapsed within a week. On February 8th, the CDC announced
problems with the test it had developed. On February 11th, the CDC shut down testing.
At that time, CDC did not authorize any other entity to develop alternative tests. CDC
believed keeping centralized control of the testing process was crucial to managing the
response to COVID-19. 14
Further signs appeared that the State and the nation were not well prepared for
COVID-19. On February 6th, in a letter to health care executives, NYS Health
Commissioner Howard Zucker warned of expected shortages of Personal Protective
Equipment (“PPE”). 15 That warning was a strong indication that the State’s public
health authorities were expecting difficulties in meeting the challenge of COVID-19. The
WHO issued its own warning the next day of expected worldwide PPE shortages. 16
The warning bells began to ring louder. On February 24th, Italy locked down
eleven towns. 17 What had been seen as an authoritarian response to a public health
problem in China was now being used in the liberal West. Italy, left with no other
effective measure, had revived the medieval measure of quarantine.
14 Shawn Boburg et al., Inside the Coronavirus Testing Failure: Alarm and Dismay Among the Scientists
Who Sought to Help, WASH. POST (Apr. 3, 2020),
https://www.washingtonpost.com/investigations/2020/04/03/coronavirus-cdc-test-kits-public-health-labs/.
15 N.Y. ST. DEP’T OF HEALTH, DEAR ADMINISTRATOR LETTER 20-3 (Feb. 6, 2020),
https://coronavirus.health.ny.gov/system/files/documents/2020/03/2020-02-06_ppe_shortage_dal.pdf.
16 Lisa Schnirring, WHO Warns of PPE Shortage; nCoV Pace Slows Slightly in China, CTR. FOR
INFECTIOUS DISEASE RES AND POL’Y (Feb. 7, 2020), https://www.cidrap.umn.edu/news-

perspective/2020/02/who-warns-ppe-shortage-ncov-pace-slows-slightly-china.
17 Angela Giuffrida, Italians Struggle with ‘Surreal’ Lockdown as Coronavirus Cases Rise, THE GUARDIAN
(Feb. 24, 2020), https://www.theguardian.com/world/2020/feb/24/italians-struggle-with-surreal-lockdown-

as-coronavirus-cases-rise.
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Almost at the same time, a COVID-19 outbreak began in a nursing home in King
County, Washington. The first COVID-positive resident was identified there on
February 27th. By March 9th, there had been 129 cases and 23 people had died in that
one nursing home. 18
The first confirmed case in New York was announced on March 1st. 19 On
March 2nd, Governor Cuomo very confidently stated that New York was ready to meet
the pandemic, that New York had faced epidemics successfully before and would do so
again. 20 “This isn’t our first rodeo. We are fully coordinated, and we are fully mobilized,
and we are fully prepared to deal with the situation as it develops.” 21 The Governor
went on to say: “Excuse our arrogance as New Yorkers – I speak for the mayor also on
this one – we think we have the best health care system on the planet right here in
New York. So, when you’re saying, what happened in other countries versus what
happened here, we don’t even think it’s going to be as bad as it was in other
countries.”22 The Governor was not alone in his confidence. That same day, alongside
the Governor, New York City Mayor DeBlasio said, “The facts are reassuring. We have
18 Temet M. McMichael et al., COVID-19 in a Long-Term Care Facility- King County, Washington,
February 27–March 9, 2020, CDC (Mar. 18, 2020),
https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e1.htm.
19 Joseph Goldstein & Jesse McKinley, Coronavirus in N.Y.: Manhattan Woman is First Confirmed Case
in State, N.Y. TIMES (Mar. 5, 2020), https://www.nytimes.com/2020/03/01/nyregion/new-york-coronvirus-

confirmed.html.
20 Press Release, N.Y. ST. OFF. OF THE GOVERNOR, At Novel Coronavirus Briefing, Governor Cuomo
Announces State is Partnering with Hospitals to Expand Novel Coronavirus Testing Capacity in New
York, (Mar. 2. 2020), https://www.governor.ny.gov/news/novel-coronavirus-briefing-governor-cuomo-
announces-state-partnering-hospitals-expand-novel.
21 Id. See also Ella Torres, A Timeline of Cuomo’s and Trump’s Responses to Coronavirus Outbreaks,
ABC NEWS (April 3, 2020), https://abcnews.go.com/US/timeline-cuomos-trumps-responses-coronavirus-

outbreak/story?id=69914641.
22 J. David Goodman, How Delays and Unheeded Warning Hindered New York’s Virus Fight, N.Y. TIMES
(Apr. 8, 2020), https://www.nytimes.com/2020/04/08/nyregion/new-york-coronavirus-response-

delays.html; see also Watch a Timeline of Disease Expert Dr. Anthony Fauci’s Comments on
Coronavirus, CNBC (Mar. 26, 2020), https://www.cnbc.com/video/2020/03/26/watch-a-timeline-of-
disease-expert-dr-anthony-faucis-comments-on-coronavirus.html.
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a lot of information now, information that is actually showing us things that should give
us more reason to stay calm and go about our lives.” 23 The Mayor added this on
March 5th: “We’ll tell you the minute we think you should change your behavior.” 24
Despite that confident statement, on that same March 2nd, Governor Andrew
Cuomo asked for and was granted emergency powers by the Legislature to meet the
expected epidemic. 25 Seemingly, the Governor knew that the threat was grave, was
bracing for an onslaught, and had convinced the Legislature that New York was facing
an unprecedented risk.
The warning signs continued to mount. By March 6th, there were confirmed
COVID-19 cases in twelve states. 26 Secretary of State Mike Pompeo said the United
States was “behind the curve.” 27 Colleges and universities were closing their study
abroad programs, bringing their students home. 28 The nation of Italy quarantined on
March 9th.
23 Chris White, De Blasio, NYC Officials Downplayed COVID-19 Threat After Trump Restricted Travel to
China. Here Are 5 Examples, DAILY CALLER (Mar. 29, 2020), https://dailycaller.com/2020/03/29/de-blasio-
coronavirus-trump-response/.
24 See supra, note 23.
25 Press Release, N.Y. ST. OFF. OF THE GOVERNOR, During Coronavirus Briefing, Governor Cuomo Signs
$40 Million Emergency Management Authorization for Coronavirus Response, (Mar. 3, 2020),
https://www.governor.ny.gov/news/during-coronavirus-briefing-governor-cuomo-signs-40-million-
emergency-management-authorization; Chapter 23 of the Laws of 2020.
26 Will Feuer et al., NBA, NHL Owners Oppose Playing Games Without Fans, NY Coronavirus Cases
Quadruple in 48 Hours, CNBC (Mar. 6, 2020), https://www.cnbc.com/2020/03/06/coronavirus-latest-

updates-outbreak.html.
27 Id.
28 Melissa Korn, Colleges Shutter Study-Abroad Programs Amid Coronavirus Fears, WALL ST. J. (Feb. 27,
2020), https://www.wsj.com/articles/colleges-shutter-study-abroad-programs-amid-coronavirus-fears-
11582821434.
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3. The Virus Continues to Spread
On March 7th, the Governor first invoked his emergency powers. 29 On the 14th,
New York had its first death. 30 Four days before New York’s first death, on March 10th,
the Governor declared the “New Rochelle Containment Zone”, and identified a New
Rochelle resident, a lawyer with a Manhattan practice, as “Patient Zero”. 31 By March
25th, there had been 234 positive cases in New Rochelle. 32
To meet the crisis in New Rochelle, a mobile drive-through testing site was
established. The mobile testing site was initially expected to test up to 200 people a
day, rising to 500. According to the Governor: “The single most important thing we can
do to combat and contain the novel coronavirus is test for it, and while the federal
government was caught flatfooted in the midst of this crisis, New York has stepped up
to fill in the gaps and ramp up testing capacity . . . As we run our own test and test
more people, the number of people that we find with the virus is going to keep going up,
but New Yorkers should continue to remain calm and remember that the more positive
tests we find, the more we can limit the virus and reduce its spread.”33
29 N.Y. Exec. Order 202 (Mar. 7, 2020), https://www.governor.ny.gov/news/no-202-declaring-disaster-

emergency-state-new-york.
30 Melanie Grayce West & Jimmy Vielkind, New York State Has First Coronavirus Deaths, WALL ST. J.
(Mar. 14, 2020), https://www.wsj.com/articles/new-york-state-has-first-coronavirus-death-11584198758.

31 Press Release, N.Y. ST. OFF. OF THE GOVERNOR, Governor Cuomo Accepts Recommendation of State
Health Commissioner for New Emergency Measures to Contain Novel Coronavirus Cluster in New
Rochelle (Mar. 10, 2020), https://www.governor.ny.gov/news/governor-cuomo-accepts-recommendation-
state-health-commissioner-new-emergency-measures-contain.
32 Zak Failla, COVID-19: New Rochelle Containment Zone Ends, DAILY VOICE (Mar. 26, 2020),
https://dailyvoice.com/new-york/newrochelle/news/covid-19-new-rochelle-containment-zone-
ends/785602.
33 Press Release, N.Y. ST. OFF. OF THE GOVERNOR, Governor Cuomo Opens the State’s First Drive-
Through COVID-19 Mobile Testing Center in New Rochelle (Mar. 13, 2020),
https://www.governor.ny.gov/news/governor-cuomo-opens-states-first-drive-through-covid-19-mobile-
testing-center-new-rochelle-0. New York had also secured approval from the Food and Drug
Administration to develop and implement its own COVID-19 test. M. Hill, New York Gets Green Light to
Test for COVID-19 Virus, ASSOCIATED PRESS (Feb. 29, 2020),
https://apnews.com/article/2eacb3ac17c9bdd10f2a314515a2a3c1.
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Events continued to accelerate. The NBA shut down and other sports quickly
followed. 34 Offices and schools began to close. Closings became a flash point
between Governor Cuomo and Mayor DeBlasio, with the Mayor moving to shut down
New York City and its schools, only to be delayed by the Governor. 35 Looking back,
that delay had consequences. In northern California, where a COVID-19 outbreak was
also occurring, the San Francisco Bay area shut down on March 16th. 36 The Governor,
perhaps to build public acceptance, perhaps for other reasons, closed New York over
three days, with the full shutdown taking effect on March 22nd. 37 San Francisco fared
better than New York City in the first surge. 38
The hope that testing could control the virus was soon dashed. The number of
identified positive cases exploded. According to the New York Forward, a web site
maintained by the New York State government, on March 8, 2020, the first date the site
reports, out of 307 individuals tested, 28 tested positive, a positivity rate of 9.1%. By
March 14th, the date of New York’s first death, the number of individuals tested was up
to 1,293; 131 were positive. The numbers continued to climb to a one-day positivity
34 Scott Cacciola & Sopan Deb, N.B.A. Suspends Season After Player Tests Positive for Coronavirus,
N.Y. TIMES (Mar. 11, 2020), https://www.nytimes.com/2020/03/11/sports/basketball/nba-season-
suspended-coronavirus.html; see also NCAA Cancels Men’s and Women’s Basketball Championships
Due to Coronavirus Concerns, N.Y. TIMES (Mar. 17, 2020),
https://www.nytimes.com/2020/03/11/sports/basketball/nba-season-suspended-coronavirus.html.
35 Bernadette Hogan & Julia Marsh, Cuomo, de Blasio Clash Over Possible Shelter-in-Place System for
NYC, N.Y. POST (Mar. 17, 2020), https://nypost.com/2020/03/17/cuomo-de-blasio-clash-over-possible-

shelter-in-place-system-for-nyc/; see also Luis Ferre-Sadurni, New York Schools, Restaurants and Bars
Are Shut Down Over Coronavirus, N.Y. TIMES (Mar. 16, 2020),
https://www.nytimes.com/2020/03/15/nyregion/coronavirus-nyc-shutdown.html.
36 Erin Allday, Bay Area Orders ‘Shelter in Place,’ Only Essential Businesses Open in 6 Counties, S.F.
CHRON. (Mar. 19, 2020), https://www.sfchronicle.com/local-politics/article/Bay-Area-must-shelter-in-place-

Only-15135014.php.
37 N.Y. Exec. Order 202.8 (Mar. 20, 2020).
38 Joe Sexton & Joaquin Sapien, Two Costs. One Virus. How New York Suffered Nearly 10 Times the
Number of Deaths as California, PROPUBLICA (May 16, 2020), https://www.propublica.org/article/two-

coasts-one-virus-how-new-york-suffered-nearly-10-times-the-number-of-deaths-as-california.
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peak of 48.6% on April 2nd, and a seven-day rolling average peak of 48.2% on April 4th.
In raw numbers, 10,841 New Yorkers tested positive on April 3rd, a number that would
not be surpassed until December 11th, during New York’s second surge, when 11,129
New Yorkers tested positive, but the positivity rate was only 4.6%. 39 In little more than a
month, New York went from one case to 10,841 new cases in a single day. New York
was in a health care emergency unknown in living memory.
Hospitalizations tracked those numbers. There were six people hospitalized in
New York for COVID-19 on March 14th. 40 Only twelve days later, 6,481 COVID-19
patients were in the State’s hospitals, a mind-boggling increase; 41 1,583 of those
patients were in intensive care units. By April 13th, hospitalizations had almost tripled,
peaking at 18,825, and patients in ICU beds had more than tripled to 5,225. Notably,
and showing how the epidemic was centered in the New York metropolitan area, 16,292
of the hospitalizations on April 13th were in New York City and Long Island, 86.5% of the
State’s total. By contrast, during New York State’s second surge, which occurred in
December and January, 2020–21, hospitalizations peaked at the far lower number of
8,888 on January 15, 2021, and those hospitalizations were spread throughout the
State, with 5,051 in New York City and Long Island, 56.8% of the total. 42
39 New York Forward, Percentage Positive Results by Region Dashboard (Apr. 26, 2021),
https://forward.ny.gov/percentage-positive-results-region-dashboard.
40Tracking Coronavirus in New York: Latest Map and Case Count, N.Y. TIMES,
https://www.nytimes.com/interactive/2021/us/new-york-covid-cases.html (last visited Apr. 27, 2021).

41 The data reported by the New York Times states the hospitalization number as 926 for that date,
significantly below the number reported on NY Forward. The Times also reports peak hospitalization at
14,126, lower, but proportionately much closer to the peak number of 18,825 reported on NY Forward.
The Times does state that “Hospitalization numbers early in the pandemic are undercounts due to
incomplete reporting by hospitals to the federal government.” Id.
42 Deaths, too, had begun their meteoric rise. From the first death reported on March 14th, the daily death
count had risen to 117 on March 25th. The number of daily deaths reported reached its tragic peak on
April 14th. The New York Times reports the peak number as 1,003. Id. The Governor reported the peak
as 799 on April 8th. https://www.wamc.org/post/coronavirus-daily-death-toll-ny-increases. Either number
is a staggering loss of life.
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4. The Need for Sufficient Hospital Capacity.
As COVID-19 exploded in New York in March of last year, the almost singular
health care focus of Governor Andrew Cuomo, and, therefore, of the State government,
was on assuring that there would be sufficient hospital capacity to meet the expected
surge of patients in need of hospital care for COVID-19. To that end, the Governor
ordered that hospitals in the State cease all elective procedures 43 The Jacob Javits
Convention Center, a 1,800,000 square foot facility, was converted to a field hospital
with a bed capacity of 2,000. 44 The Governor began his repeated calls to bring the U.S.
Navy Hospital ship, the USNS Comfort, to New York. The Comfort arrived to much
fanfare and relief on March 30th. 45 The calls began for retired and out-of-state
physicians, nurses, and other health care professionals to come to New York and make
themselves available to meet this centennial emergency. 46 Patients, including COVID-
19 patients, were transferred to hospitals with capacity, sometimes at great distance.
Because of the anticipated need for large numbers of hospital beds, the
Governor, in his first Executive Order issued under his emergency powers, authorized
hospitals to “rapidly discharge” patients47. An especially important event in terms of the
State’s health care capacity occurred on March 23rd. On that date, Governor Cuomo
43 N.Y. Exec. Order 202.10 (Mar. 23, 2020).

44 C. Todd Lopez, Corps of Engineers Converts NYC’s Javits Center Into Hospital, U.S. DEP’T OF DEFENSE
(Apr. 1, 2020), https://www.defense.gov/Explore/News/Article/Article/2133514/corps-of-engineers-
converts-nycs-javits-center-into-
hospital/#:~:text=The%20New%20York%20District%20of,non%2DCOVID%2D19%20patients.
45 Erin Durkin, USNS Comfort Arrives in New York City, POLITICO (Mar.30, 2020),
https://www.politico.com/states/new-york/albany/story/2020/03/30/usns-comfort-arrives-in-new-york-city-
1269589.
46 Press Release, N.Y. ST. OFF. OF THE GOVERNOR, During Coronavirus Briefing, Governor Cuomo
Announces New Mass Gatherings Regulations (Mar. 12, 2020),

https://www.governor.ny.gov/news/during-novel-coronavirus-briefing-governor-cuomo-announces-new-
mass-gatherings-regulations.
47 N.Y. Exec. Order 202 (Mar. 7, 2020).
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issued an Executive Order requiring that all hospitals cancel elective surgeries to free
up hospital beds, 48 and urged that hospitals go beyond the order and increase their
capacity by 100%. Health officials said that day that New York had 53,000 hospital
beds with an anticipated need due to COVID-19 of 113,000. Officials also stated that
New York had 3,000 ICU beds with an anticipated need due to COVID-19 of 18,000. 49
Two days later, on March 25th, the Department of Health issued the now
infamous Advisory to nursing homes. The Advisory was explicitly issued out of concern
for hospital capacity. It said so in its second sentence. “There is an urgent need to
expand hospital capacity in New York State to be able to meet the demand for patients
with COVID-19 requiring acute care.”50 The Advisory went on to state the expectations
for nursing homes.
During this global health emergency, all NHs must comply

with the expedited receipt of residents returning from
hospitals to NHs. Residents are deemed appropriate for
return to a NH upon a determination by the hospital
physician or designee that the resident is medically stable for
return. Hospital discharge planners must confirm to the NH,
by telephone, that the resident is medically stable for
discharge. Comprehensive discharge instructions must be
provided by the hospital prior to the transport of a resident to
the NH. No resident shall be denied re-admission or
admission to the NH solely based on a confirmed or
suspected diagnosis of COVID-19. NHs are prohibited from
requiring a hospitalized resident who is determined medically
48 N.Y.Exec. Order 202.10 (Mar. 23, 2020).

49 Bill Chappell, Cuomo Orders All Hospitals to Add Beds as New York Confirms 20,000 Coronavirus
Cases, NPR (Mar. 23, 2020), https://www.npr.org/sections/coronavirus-live-
updates/2020/03/23/820150795/cuomo-orders-all-hospitals-to-add-beds-as-new-york-confirms-20-000-
coronavirus-
c#:~:text=New%20York%20currently%20has%2053%2C000%20hospital%20beds%3B%20it,Equipment
%20%26%20Supplies%20at%20Javits%20Center%20Temporary%20Hospital.
50 N.Y. ST. DEP’T OF HEALTH, DEAR ADMINISTRATOR LETTER (Mar. 25, 2020),
https://skillednursingnews.com/wp-
content/uploads/sites/4/2020/03/DOH_COVID19__NHAdmissionsReadmissions__032520_15851666844
75_0.pdf.
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stable to be tested for COVID-19 prior to admission or
readmission.
As always, standard precautions must be maintained, and

environmental cleaning made a priority, during this public
health emergency. Critical personal protective equipment
(PPE) needs should be immediately communicated to your
local Office of Emergency Management, with the appropriate
information provided at the time of request.
Thankfully, New York never did exceed its pre-COVID-19 Statewide hospital
capacity, although many individual hospitals saw their capacity exceeded. New York’s
pre-COVID-19 statewide ICU capacity was exceeded by over sixty percent. 51
C. The Pandemic Comes to Nursing Homes
Less than two weeks before the issuance of the March 25th directive, the State
Department of Health had closed nursing homes to visitors. 52 This was to prevent the
introduction of COVID-19 into the facilities.
Although the Governor would later describe the March 25th directive as in
accordance with CDC guidance, there appears to be significant difference between
then-current CDC guidance and the March 25th directive. The CDC guidance
emphasized that a nursing home should admit residents with COVID-19 only if able to
follow CDC guidance for transmission-based precautions. If the nursing home could not
do so, “it must wait until these precautions are discontinued” 53 before admitting
51 The on-line publication Gothamist has published comprehensive and useful data, which it updates,
about the course of the pandemic in New York, especially New York City from the start of the outbreak in
March 2020 until the present. The data is broken down in a number of ways, including by race, poverty,
gender, and zip code. J. Dobkin, C. Diaz, Z. Gottehrer, Coronavirus Statistics, Tracking the Epidemic in
New York, GOTHAMIST, https://gothamist.com/news/coronavirus-statistics-tracking-epidemic-new-york
(last visited May 6, 2021).
52 N.Y. Exec. Order 202.1 (Mar. 12, 2020).
53 Guidance for Infection Control Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes,
CTRS. FOR MEDICARE & MEDICAID SERVS. (Mar. 13, 2020), https://www.cms.gov/files/document/3-13-2020-
nursing-home-guidance-covid-19.pdf.
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residents with COVID-19. The Centers for Medicare and Medicaid Services (“CMS”)
had also issued infection control guidance, including a self-assessment checklist that
long-term care facilities could use to determine their compliance with these crucial
infection control actions. 54
There were several directives or mandates imposed upon nursing homes during
the course of the pandemic, some of which have been previously mentioned. Some
had greater impacts than others.
The Executive Order closing nursing homes to visitors was obviously intended to
check the spread of the virus. Whatever that order’s efficacy in controlling the
introduction of the virus, the order had certain, unavoidable negative consequences.
Visitors benefit nursing home residents in a number of ways. There are the emotional
benefits of continued connection to friends and family. Visitors also provide care
support, supplementing the efforts of staff, and sometimes identifying care
shortcomings. There is at least anecdotal evidence that the loss of visitation has had a
negative impact on the well-being of many nursing home residents. The complete bar
on visitation has been removed through a number of orders, but open visitation has not
yet been fully restored. 55
While the March 25th Department of Health directive remained in place, and
seemingly in response to criticism of that directive, the Department issued an order
requiring that nursing home employees be tested for the virus twice weekly. 56 A
54 Prioritization of Survey Activities, CTRS. FOR MEDICARE & MEDICAID SERVS. (Mar. 20, 2020),
https://www.cms.gov/files/document/qso-20-20-allpdf.pdf-0 .
55 N.Y. ST. DEP’T OF HEALTH, DEAR ADMINISTRATOR LETTER (Mar. 25, 2021),
https://coronavirus.health.ny.gov/system/files/documents/2021/03/updated_nursing_home_visitation_guid
ance.pdf.
56 N.Y. Exec. Order 202.30 (May 10, 2020). See also N.Y. ST. DEP’T OF HEALTH, Executive Order 202.30-
Nursing Home and Adult Care Facility Staff Testing Requirement FAQ (June 24, 2020),
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subsequent order reduced the testing frequency to weekly. 57 Because the receipt of
testing results often took as many as ten days, these testing orders were of dubious
usefulness. They did, however, greatly increase nursing home costs.
As the March 25th directive began to receive public attention, the Department
also ordered that nursing homes secure and maintain a sixty day supply of PPE. 58
When the Department issued this order, PPE was in short supply and expensive. No
one would argue with the need for nursing homes to maintain adequate levels of PPE,
but this was an order to stockpile PPE at the moment of highest cost and least supply.
The order did nothing for patient care at the time, but did increase nursing home costs.
a. The March 25th Directive
The order that has received the most attention is the now infamous March 25th
Advisory to New York’s nursing homes calling for the admission of COVID-19 positive
residents. This Advisory was controversial from the start. The consequences of the
Advisory have been far reaching, and unexpected, including investigation of the
Governor himself. Remarkably, the Advisory was so controversial that the State
Department of Health issued a report that was in effect a direct rebuttal to the criticism.
The Department did so in July 2020, with a report entitled, “Factors Associated with
Nursing Home Infections and Fatalities in New York State During the COVID-19 Global
https://coronavirus.health.ny.gov/system/files/documents/2020/06/nursinghome_stafftestingrequirementfa
q_0624.pdf.
57 Press Release, N.Y. ST. DEP’T OF HEALTH, Statement from New York State Health Commissioner
Dr. Howard Zucker on Successful Nursing Home Testing Program (June 10, 2020),
https://www.health.ny.gov/press/releases/2020/2020-06-10_nursing_home_testing_program.htm .
58 Codified at 10 N.Y.C.R.R. § 405.19. The Department issued this regulation after the Commissioner had
testified before the State Legislature that nursing homes had had sufficient supplies of PPE. 10
N.Y.C.R.R. § 405.191; see also Bernadette Hogan, Health Department Mandates PPE Supply for Nursing
Homes Ahead of ‘Second Wave’, N.Y. POST (Aug. 21, 2020), https://nypost.com/2020/08/21/ny-health-
department-mandates-ppe-supply-for-nursing-homes/.
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Health Crisis.” 59 The report concluded that nursing homes had admitted “approximately
6,326 COVID-positive residents” between March 25, 2020 and the May 8th withdrawal of
the advisory, but that the March 25 directive “could not be the driver of nursing home
infections or fatalities.”60 The report took the position that the admission of COVID-
positive residents did not introduce COVID-19 into nursing homes or contribute to
nursing home infections and subsequent fatalities. 61
On August 3 and August 10, 2020, the Legislature held joint hearings on the
issue of COVID-19 in nursing homes. In his appearance before the Legislature on
August 3rd, the Commissioner of Health declared that the advisory should not have
been read as prohibiting the denial of admission to COVID-19 positive residents, but
that nursing homes always had the right to deny admission to individuals for whom they
could not provide adequate care. Notably, despite concerns raised while the advisory
was in effect, the Department had not issued any such clarification.
b. The Attorney General Report
On January 28, 2021, the Office of the Attorney General (“OAG”) released a
report entitled Nursing Home Response to the COVID-19 Pandemic. 62 The report
directly challenged the Department of Health’s conclusions regarding the number of
deaths that had occurred in the State’s nursing homes. The Attorney General’s report
59 Press Release, N.Y. ST. DEP’T OF HEALTH, Factors Associated with Nursing Home Infections and
Fatalities in New York State During the Covid-19 Global Health Crisis (Feb. 11, 2021),
https://www.health.ny.gov/press/releases/2020/docs/nh_factors_report.pdf.
60 Id.
61 Id.
62 See Press Release, N.Y. ATT’Y GEN., Attorney General James Releases Report on Nursing Homes’
Response to COVID-19, (Jan. 28, 2021), https://ag.ny.gov/press-release/2021/attorney-general-james-

releases-report-nursing-homes-response-covid-19. [hereinafter Press Release]; see also Nursing Home
Response to COVID-19 Pandemic, N.Y. ATT’Y GEN. (Jan. 30, 2021),
https://ag.ny.gov/sites/default/files/2021-nursinghomesreport.pdf [hereinafter Attorney General Report].
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concluded that the Department of Health had been undercounting nursing home deaths
and estimated that the full toll was 50% higher than what the Department had reported.
The Attorney General’s report also found that New York’s “guidance requiring the
admission of COVID-19 patients into nursing homes may have put residents at
increased risk of harm in some facilities and may have obscured the data available to
assess that risk.” 63
Immediately following the release of the OAG report, Health Commissioner
Zucker released a statement with revised COVID-19 mortality data. 64 According to the
Health Commissioner’s statement, from March 1, 2020 to January 19, 2021, there were:
(i) 9,786 confirmed fatalities associated with skilled nursing facility residents, including
5,957 fatalities within nursing facilities, and 3,829 within hospitals: and (ii) 2,957
additional “presumed” COVID nursing home fatalities, that is, fatalities that occurred
when testing was scarce and lack confirmed evidence the deceased had COVID.
The Department of Health further revised the numbers following a Freedom of
Information (“FOIL”) request and litigation with the Empire Center for Public Policy. On
February 8, 2021, the Department of Health posted updated facility-level death counts
in nursing homes, assisted living residences and other adult-care facilities, including
5,596 deaths that had occurred in hospitals. 65 The update pushed the known COVID-
19 toll in long-term care facilities to almost 15,000. On February 10, 2021, the
Department of Health released the dates and locations of more than 14,000 deaths
63 Id.
64 Press Release, N.Y. ST. DEP’T OF HEALTH, Statement from New York State Health Commissioner Dr.
Howard Zucker (Jan. 28, 2021), https://www.governor.ny.gov/news/statement-new-york-state-health-
commissioner-dr-howard-zucker-1.
65 Press Release, EMPIRE CTR. FOR PUB. POL., Cuomo Administration Releases FOIL-Requested Nursing
Home Data (Feb. 10, 2021), https://www.empirecenter.org/publications/cuomo-administration-releases-

foil-requested-nursing-homes-data/.
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involving residents of nursing homes and assisted living facilities, including 4,775
residents who died outside of the facilities from confirmed cases of COVID-19. Omitted
from the data were: 671 residents who died outside the facilities with presumed cases
of COVID-19, and approximately 1,000 deaths in adult-care facilities that were not
categorized as “assisted living.” 66
II. The Role of Government in Responding to a Pandemic
In preparing for and responding to an emergency, various levels of government
have extensive authority, to take action to protect the health, safety and welfare of the
population. Some of the responsibilities are discussed below and include:
• protecting the public health;
• preparing for emergencies;
• responding to emergencies;
• preventing the spread of communicable disease;
• collecting and disseminating information; and
• allocating scarce resources.
In New York, State government, in conjunction with New York City and county
governments, has taken on responsibilities to check the spread of contagious diseases.
In response to the COVID-19 epidemic, the State government has taken on the
responsibility to protect individuals from exposure, to provide access to testing,
diagnosis, treatment and, as available, immunization. The effective discharge of
government’s role involves balancing a wide variety of competing considerations,
66Press Release, EMPIRE CTR. FOR PUB. POL., Update on DOH compliance with the Empire Center’s
nursing home FOIL request (Feb. 17, 2021), https://www.empirecenter.org/publications/update-on-doh-
compliance/.
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objectives and constituencies, as well as coordination among numerous government
agencies at the federal, state and local level.
III. Responsibilities of Government in Responding to a Pandemic
A. Protecting the Public Health.
At the federal, state and local levels, government plays an essential role –
before, during and after an emergency – in protecting the health and safety of the
public.
Through its superior spending power, the federal government has substantial
resources to respond in the event of an emergency. Individual states, hold the police
power, which gives them broad authority over public health matters within their
borders. 67.
Under the New York State Constitution, “[t]he protection and promotion of the
health of the inhabitants of the state are matters of public concern and provision therefor
shall be made by the state and by such of its subdivisions and in such manner, and by
such means as the legislature shall from time to time determine.” 68 The New York State
Department of Health has broad authority under the Public Health Law to protect and
promote public health. 69 New York is one of 26 states with a decentralized public health
system: At the local level, 57 county health departments and the New York City
Department of Health and Mental Health have the major responsibility for provision of
public health services. 70 The NYC Health Department, one of the largest and oldest
67 See Santiago Legarre, The Historical Background of the Police Power, 9 U. PA. J. CONST. L. 745
(2007), https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1250&context=jcl.
68 N.Y. Const., Art. 17, § 3.
69 N.Y. Pub. Health Law §§ 201, 206, 225.
70 Press Release, N.Y. ST. DEP’T OF HEALTH, Strengthening New York’s Public Health System for the 21st
Century, https://www.health.ny.gov/press/reports/century/phc_nyssystem.htm (last visited Apr. 28, 2021).
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public health agencies in the world, has a mission to protect and promote the health and
mental health of a population of more than eight million in the five boroughs. 71 The
protection of public health depends on an effective collaboration between and among
the federal, state and local governments.
B. Preparing for Emergencies.
Before a crisis develops, various statutes impose responsibilities on various
levels of government to anticipate potential disasters, to prepare plans to prevent
disasters and, when disasters occur, to minimize their effects, and for guiding the public
in taking actions to prevent and mitigate disasters. Disaster preparedness can also
include preparing for emergencies.
At the federal level, the Department of Homeland Security has general
operational responsibility for U.S. federal disaster response, 72 and the Department of
Health and Human Services (“HHS”) has medical responsibility for federal
preparedness and disaster response efforts. 73 There are at least fourteen federal
departments and agencies responsible for the administration of dozens of programs
related to disaster preparedness, response, and recovery.
Within the Department of Homeland Security, the Federal Emergency
Management Agency (“FEMA”) is responsible for coordinating responses to disasters
that occur in the U.S. and overwhelm the resources of local or state authorities. 74 To
71 See About the NYC Department of Health and Mental Hygiene, NYC HEALTH,
https://www1.nyc.gov/site/doh/about/about-doh.page.
72 Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 68 § 5121 et seq.; See also Disaster
Authorities, FEMA, https://www.fema.gov/disasters/authorities#.

73 The Office of the Assistant Secretary for Preparedness and Response, the Centers for Disease Control
and Prevention and National Institutes of Health are within HHS. See https://www.phe.gov/about/aspr.
74 6 U.S.C. § 313 (creates FEMA to “reduce the loss of life and property and protect the Nation from all
hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading and
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trigger FEMA assistance, the governor of the state in which the disaster occurs must
declare a state of emergency and request from the President that FEMA and the federal
government respond to the disaster.
In New York, the Executive Law establishes a Disaster Preparedness
Commission, consisting of 29 State agencies and the American Red Cross. 75 The
statute requires the Disaster Preparedness Commission to prepare a State
comprehensive emergency management plan; 76 to direct and coordinate State disaster
operations in a State disaster emergency; to assist in the coordination of federal
recovery efforts; and to provide for periodic briefings, drills and exercises. 77 For nursing
homes and assisted living facilities, the statute specifically requires the Commission to
establish standards for disaster preparedness 78 and to assist these facilities in
establishing a disaster preparedness plan addressing the maintenance of food, water
and medication supplies; access to a generator, and the establishment of an evacuation
plan for residents and disaster staffing plans. 79
C. Responding to Emergencies.
When an emergency develops, various levels of government have responsibility
for responding, controlling and mitigating its impact on the population.
In the event of an emergency that severely challenges state or local response
capabilities, the federal government has broad authority to provide surge capacity to
support state and local efforts to control and mitigate the emergency. A Presidential
supporting the Nation in a risk-based, comprehensive emergency management system of preparedness,

protection, response, recovery, and mitigation”).
75 N.Y. Exec. Law Art. 2-B (State and Local Natural and Man-made Disaster Preparedness).
76 N.Y. Exec. Law Art. 22.
77 N.Y. Exec. Law § 21; see NYS Comprehensive Emergency Management Plan.
78 N.Y. Exec. Law § 23-B(1).
79 N.Y. Exec. Law § 23-B(2).
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declaration of a major disaster or emergency (a Stafford Act declaration), 80 a
declaration from the Secretary of HHS of an Incident of National Significance, or a
request from another federal department or agency may trigger the federal response. 81
Federal public health and medical assistance can consist of medical materiel,
personnel, and technical assistance. 82 In addition, the federal government has authority
to waive or to temporarily modify normal operating requirements of federal programs
during a major emergency or disaster.
In New York, the Executive Law authorizes the governor to issue an executive
order declaring a disaster emergency upon finding that a disaster has occurred or may
be imminent for which local governments are unable to respond adequately. 83 When
the disaster is beyond the capabilities of the State and affected jurisdictions, the
governor has authority to request federal assistance and may make available sufficient
funds to provide the required state share of grants made under any federal program for
meeting disaster related expenses including those available to individuals and
families. 84 The Executive Law also permits the governor to suspend laws as he deems
necessary for the duration of the emergency. 85 As discussed above, the Legislature
expanded that authority in March of last year to permit the Governor for the duration of
80 Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, a
presidential disaster declaration or an emergency declaration triggers federal financial and physical
assistance through the Federal Emergency Management Agency (FEMA). Additionally, the National
Emergencies Act, 50 U.S.C. § 1601-1651, provides a framework for declaring national emergencies and
for the exercise of emergency powers and authorities.
81 See generally Congressional Primer on Responding to and Recovering from Major Disasters and
Emergencies, CONG. RES. SERV. (June 3, 2020), https://fas.org/sgp/crs/homesec/R41981.pdf.

82 Section 319 of the Public Health Service Act, 42 U.S.C. § 247d, allows the HHS Secretary, after
consultation with public health officials, to take action to respond, including making grants, entering into
contracts and conducting and supporting investigations into the cause, treatment, or prevention of a
disease or disorder and establishes the Public Health Emergency Fund).
83 N.Y. Exec. Law § 28(1).
84 N.Y. Exec. Law § 28(4).
85 N,Y, Exec. Law § 29-a.
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the emergency to declare rules by Executive Order. 86 That further authority has now
been repealed, but the Governor can continue for the duration of emergency to extend
the Executive Orders previously issued, subject to legislative invalidation. 87
These federal and state emergency response systems are interdependent, and
each relies heavily on the active participation of the other for effective implementation.
D. Preventing the Spread of Communicable Disease.
The states have primary responsibility under their police powers for protecting
the public’s health by taking action to control and prevent the spread of communicable
disease. Under the Public Health Law, the NYS Department of Health is responsible for
supervising the reporting and control of disease; producing, standardizing and
distributing diagnostic, prophylactic and therapeutic products; conducting laboratory
examinations for the diagnosis and control of disease; promoting education in the
prevention and control of disease; advising local units of government and their public
health officials in the performance of their official duties, and regulating the financial
assistance granted by the State in connection with all public health activities, among
many other public health-related activities. 88 Authority under the Public Health Law
includes, in certain instances, quarantine 89 and mandatory treatment. 90 Federal law
authorizes the federal government to make regulations necessary to prevent
communicable diseases from foreign countries from entering into the states and from
one state to another. 91 This federal authority does not supersede state law and
86 Chapter 23 of the Laws of 2020.

87 Chapter 71 of the Laws of 2021 (Mar. 7, 2021).
88 N.Y. Pub. Health Law §§ 201, 206, 225.
89 10 N.Y.C.R.R. § 2.13.
90 N.Y. Pub. Health Law. § 2120(3).
91 42 U.S.C. § 264.
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regulations, “except to the extent that such a provision conflicts with an exercise of
Federal authority.” 92
Although an individual state has primary responsibility, a pandemic knows no
boundaries. Therefore, an effective response requires not only federal-state
coordination, but also interstate cooperation to minimize disruption and limit the spread
of disease. We have seen during the pandemic several instances of interstate
cooperation between New York and neighboring states, especially with New Jersey and
Connecticut. 93
E. Collecting and Disseminating Information.
One of the most important roles of government, before, during, and after an
emergency, is to collect information and use it effectively to guide policy decisions.
At the federal level, HHS sponsors a variety of public health and health care data
systems and activities. For example, the CDC coordinates case surveillance, that is,
information on individuals with the infection in a population, to provide information
needed for taking public health action to prevent cases and the spread of disease and
to control outbreaks. The CMS collects administrative data on the Medicare and
Medicaid programs and conducts healthcare provider surveys. Other federal agencies
also collect data that are important for public health purposes. 94
92 Id.
93 ‘Worst is Over,’ Cuomo Says as 7 States Ally to Reopen Economy, N.Y. TIMES (Apr. 13, 2020),
https://www.nytimes.com/2020/04/13/nyregion/coronavirus-new-york-update.html; New York Governor
Cuomo and Other Governors Coronavirus News Conference, C-SPAN (Apr. 13, 2020), https://www.c-
span.org/video/?471176-1/york-gov-cuomo-governors-announce-coordinated-reopening-effort.
94 On April 19, CMS announced that it would issue a rulemaking requiring nursing homes to report data,
through the CDC’s National Health Safety Network (NHSN) system, about residents or staff with
suspected or confirmed COVID-19, residents with severe respiratory infection resulting in hospitalization
or death, or three or more residents or staff with new onset respiratory symptoms within 72 hours of each
other. Upcoming Requirements for Notification of Confirmed COVID-19 (or COVID-19 Persons Under
Investigation) Among Residents and Staff in Nursing Homes, QSO-20-26-NH, CTRS. FOR MEDICARE &
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In New York, the Health Electronic Response Data System, HERDS, is a
statewide electronic web-based data collection system that allows healthcare providers
to relay resources or needs to the State Department of Health during emergencies and
to respond immediately to rapid request surveys in preparedness planning efforts. 95
F. Allocating Scarce Resources.
In fulfilling mutual responsibilities, federal and state governments must anticipate
and respond to supply chain disruptions, which may create shortages in crucial
supplies.
At the federal level, a federal emergency declaration enables the Secretary of
Health and Human Services to take appropriate actions, consistent with other
authorities, to control and mitigate the emergency. This may include supporting
investigations into the cause, treatment, or prevention of the emergency; accessing the
Public Health Emergency Fund and other funds to facilitate a response; and adjusting
the requirements to meet the needs of individuals who benefit from government-funded
insurance programs. Under the Defense Production Act 96 the President has authority to
expedite and expand the supply of materials and services from the U.S. industrial base
to promote the national defense. In New York, the declaration of an emergency
authorizes the governor to request federal assistance, as well as access State
governmental emergency funds.
MEDICAID SERVS. (Apr. 19, 2020), https://www.cms.gov/files/document/qso-20-26-nh.pdf. Prior to that

time, neither CMS nor CDC nor FEMA collected that information.
95 HERDS Quick Reference Card, WADSWORTH CTR.,
https://www.wadsworth.org/sites/default/files/WebDoc/HERDS_QuickReferenceCard%20%28002%29.pdf
.
96 50 U.S.C. §§ 4501–4568. The federal government also maintains the Strategic National Stockpile,
which contains medications and medical equipment available for distribution to states.
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IV. A State and Nation Unprepared
In this section of the Report, we will examine the multiple considerations that
weighed in the balance and the confluence of decisions that may have created the
perfect public health storm in this first quarter of the twenty first century.
a. Conceptual Framework: Syndemic Theory and Paradigmatic Example of

Nursing Homes
The nursing home pandemic crisis is a paradigmatic example of syndemic
theory 97 at work. The syndemic integrative conceptual framework helps us make sense
of patterns of disease interaction and disease concentration among clustered
epidemics, and their underlying social, political, and economic driving forces. 98 In the
current pandemic, the novel coronavirus has interacted with chronic illness and
comorbidities, especially in older adult populations. These patterns of interaction are
both shaped by, and shaping and exacerbating, pre-existing social inequities, including
structural racism. We add the critical importance of structural ageism and age
discrimination as pre-existing social inequities shaped by social, economic, and political
forces. 99 In addition, at least one research study has documented the relationship
between race and virus cases and deaths in nursing homes during the pandemic. 100
The cumulative disadvantage and struggle that accompany growing old at the
intersection of age, race, ethnicity, and gender calls attention to the social and
economic determinants of health, especially for those living at the margins of society.
97 Clarence C. Gravelee, Systemic Racism, Chronic Health Inequities, and COVID-19: A Syndemic in the
Making?, AM. J. HUM. BIOLOGY (Aug. 4, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7441277/.
98 Id.
99 Morrissey, Pandemic Threats to Older Women: Government’s Policy Failures, United Nations
Commission on Status of Women (Mar. 17, 2021).

100 Rebecca J. Gorges & R Tamara Konetzka, Factors Associated with Racial Differences in Deaths
Among Nursing Home Residents with COVID-19 Infection in the US, NIH (Feb. 1, 2021),
https://pubmed.ncbi.nlm.nih.gov/33566110/.
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Institutionalized older adults have been hit hard during the pandemic because of the
convergence of historical policy failures at both the federal and state levels. Available
study data on nursing home deaths during the pandemic reflect patterns of structural
ageism and racism in the formulation and implementation of health policy in the United
States101 and, more specifically, long-term care policy.
b. Convergence of Historical Policy Failures: Federal Policymaking
Any meaningful analysis of the vulnerability of the nursing home population to the
syndemic force of the pandemic would be incomplete without careful attention to the
history of long-term care policymaking in the United States. The most glaring void in
that history at the federal level has been the failure to enact a comprehensive long-term
care policy itself, including long-term care financing outside of the Medicaid program. 102
The last attempt to correct this gap, at least in piecemeal fashion, was as a part of the
Affordable Care Act, 103 but that provision was repealed in 2011 as policymakers had
not been successful in designing a funding plan to ensure its viability. 104
The failure to enact a comprehensive long-term care policy in the United States
must be contextualized in the larger picture of health policy failures at the federal level.
The highly fragmented U.S. health care delivery and financing systems undermine the
possibility of achieving meaningful access to long-term care services for older adults
and other vulnerable persons.
101 Woolhandler et al, 2021.

102 Joe Caldwell & Howard Bedlin, Beyond the CLASS Act: The Future of Long-Term Care Financing
Reform, 24 THE GERONTOLOGICAL SOC’Y OF AM. 55 (Mar. 16, 2014), https://heller.brandeis.edu/community-
living-policy/images/pdfpublications/2014marchbeyondtheclassact.pdf.
103 Letter from Kathleen Sebelius to The Honorable John A. Boehner (Oct. 14, 2011),
https://www.kff.org/wp-content/uploads/sites/2/2011/10/boehner-.pdf.
104 Id.
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Compounding the failures are other major federal policy gaps. While certain
steps had been taken at the federal level post-Katrina to strengthen preparedness,
including The National Response Framework (“NRF”); National Incident Management
System; and The Post-Katrina Emergency Management Reform Act (“PKEMRA”), 105
these frameworks did not go far enough in strengthening the public health
infrastructures needed to deal with a pandemic of the magnitude of COVID-19. This
has been all too evident, for example, in breakdowns in the supply chain.
Underinvestment in public health workforce education and training, as well as
appropriate education and training for other health care workers, has left the workforce
ill-equipped to respond to the public health crisis. Further, the direct care workforce,
largely comprising people from racial and ethnic minorities, has historically been
marginalized through both low wages and lack of appropriate training. 106
c. State Policymaking, Lack of Emergency Preparedness and Crisis Standards,

and Public Health Infrastructure Failures
The State’s reluctance to take timely preparatory steps, such as in failing to enact
crisis standards of care and adopt uniform triage guidelines for allocation of scarce
resources in crisis conditions, left State and local government scrambling as the virus
descended upon New York. The lack of these preparatory statutory and regulatory
structures contributed to the State’s default reliance on executive orders during the
pandemic.
105 Pets Evacuation and Transp. Standards Act, Pub. L. No. 109-308, 120 Stat. 1725 (2006); Pub. L. No.
109-295, tit. VI, 120 Stat. 1355, 1394 (2006);

106 New Public Health Policy Statements Adopted by APHA 2020, AM. PUB. HEALTH ASS’N (Oct. 25, 2020),
https://apha.org/News-and-Media/News-Releases/APHA-News-Releases/2020/2020-APHA-policy-
statement.
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The Medicaid funding level of the State’s nursing homes also placed stress on
the system before the arrival of the virus. Of the State’s nursing home residents, 67%
were Medicaid recipients in 2017. 107 Medicaid revenue accounted for just over 56% of
the State’s nursing home revenues in 2016. 108 Although there is some dispute as to the
adequacy of Medicaid reimbursement rates, nursing home representatives contend that
Medicaid reimbursement rates compensate less than two-thirds of the cost of care of
those residents. 109 That funding gap has contributed to a reduction in the number of
publicly operated and not-for-profit nursing homes in favor of for-profit homes. It has
also contributed to low wage rates and staffing levels. 110 In addition to staffing and wage
rates, such underfunding affects every level of service in a nursing home, including staff
training, infection control, the availability of system-wide palliative care, provision of
PPE, and other critical resources and supports. These resources are essential not only
to reduce risk of infection, but to assure humane care.
Compounding the State’s lack of attention to emergency preparedness and its
necessary legal pillars, New York has not developed a comprehensive plan for long
term care. There have been various efforts, such as the Delivery System Reform
Incentive Payment Program (“DSRIP”) 111, but more often than not, the State has been
107 Medicaid’s Role in Nursing Home Care, KAISER FAM. FOUND. (June 20, 2017),
https://www.kff.org/infographic/medicaids-role-in-nursing-home-care/.
108 Regional Payor Mix – Revenue, LEADINGAGE NY, https://www.leadingageny.org/linkservid/A68E4BB4-
FE50-B80C-9A9896DBFC7857B1/showMeta/0/.
109 Statements of James Clyne, Executive Director, LeadingAge NY and of Stephen Hanse, President, NY
Healthcare Facilities Association to this Task Force in their respective appearances

110 Halley Bondy, 39% of Covid-19 Deaths Have Occurred in Nursing Homes- Many Could Have Been
Prevented: Report, NBC NEWS (Dec. 8, 2020), https://www.nbcnews.com/know-your-value/feature/39-

covid-19-deaths-have-occurred-nursing-homes-many-could-ncna1250374.
111 As described by the State Department of Health, DSRIP is intended to fundamentally restructure the
health care delivery system. Delivery System Reform Incentive Payment (DSRIP) Program, N.Y. ST.
DEP’T OF HEALTH, https://www.health.ny.gov/health_care/medicaid/redesign/dsrip/ (last visited Apr. 28,
2021).
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reactive, with its seeming focus on how to control spending, or efforts at coordination
have been siloed. Despite the United States Supreme Court decision in Olmstead v.
L.C. 112 and calls for a shift to community care paradigms, and the use of non-
institutionalized settings with expanded social services and supports and integrated
palliative medical and social care, the State has been resistant. The number of nursing
home deaths suggests that the reliance on institutional care had consequences for the
pandemic.
V. The Impact on Nursing Homes and their Residents
Before going into what has occurred in the State’s nursing homes, it is useful to
understand what a nursing home is. Under the New York Public Health Law, a nursing
home is a residential setting providing skilled nursing care and services and residential
health-related care and services to residents who need skilled nursing or other
professional services but who do not require the services of a general hospital. 113 A
similar definition applies under federal law. A “skilled nursing facility” is an institution
primarily engaged in providing skilled nursing care and related services for residents
requiring medical or nursing care, or rehabilitation services for injured, disabled, or sick
persons (but not primarily for the care and treatment of mental diseases), which meets
112 Olmstead v. L.C., 527 U.S. 581 (1999).

113 N.Y. Pub. Health Law § 2801(2)–(4); 10 N.Y.C.R.R. §§ 415.1(b)(2), 415.2(k).
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statutory requirements relating to: (a) quality of life; 114 (b) resident rights; 115 and (c)
administration and other matters and which has a transfer agreement with one or more
hospitals. All nursing homes provide the basic services, and some also provide
specialized services, such as long-term ventilator care, specialized services for
neurobehavioral disorders or involving behavioral interventions, long-term inpatient
rehabilitation or extended care for brain injuries, and care for acquired immune
deficiency syndrome. 116
The legal definition of a nursing home is admittedly dense. Stepping back from
the statutory definitions, a nursing home can be most easily understood as a hospital
extender. Residents typically are in need of twenty-four-hour nursing care. Unlike
patients in hospitals, nursing home residents are medically stable. Residents fall into
two broad categories: long-term residents and patients receiving rehabilitation services.
Rehabilitation patients are typically recovering from an injury and expect to be
discharged when the recovery from their injury has been completed. Long-term
residents typically do not expect to be discharged. There is little likelihood of recovery
from their condition.
114 These include: (1) the delivery of care in a manner and an environment to promote the maintenance or
enhancement of each resident’s quality of life; (2) the “delivery of services to attain or maintain the
highest practicable physical, mental, and psychosocial well-being of each resident; (3) the conduct of a
comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity
meeting specified requirements; (4) the provision of services and activities; (5) the provision of nurse aide
training; (6) the provision of medical care under physician supervision; (7) to have at least one social
worker (in a facility with more than 120 beds); and (8) the posting of information on nurse staffing. Soc.
Security Act § 1819(b), 42 U.S.C. § 1395i-3(b).
115 These include, among others, the right to freedom of choice; freedom from restraints; privacy;
confidentiality; accommodation of needs; to voice grievances; to participate in resident and family groups;
to participate in other activities; to examine facility survey results; to refuse certain transfers; and other
rights established by the Secretary. Soc. Security Act § 1819(c), 42 U.S.C. § 1395i-3(c).
116 10 N.Y.C.R.R. §§ 415.36–415.41.
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According to the Kaiser Family Foundation, there were 89,775 residents in
New York’s nursing homes in 2019. CDC data compiled by the NHHS show that 85%
of nursing home residents are over the age of 65, and over 40% are over the age of
85. 117 Nursing home residents typically have numerous comorbidities.
The modern nursing home arose from the enactment of Medicare and Medicaid
in 1965 and related legislation of that period. 118 Prior to those enactments, nursing
homes were more in the nature of old age homes, rest homes, and boarding houses.
The Medicare Act did three things. First, it established a financing mechanism for the
building of nursing homes. Second, it ensconced nursing homes in a medical model,
authorizing Medicare payments for skilled nursing care following a period of
hospitalization for those over the age of 65. Third, it enacted Medicaid, health
insurance for the poor119. Medicaid provides payment for long-term care for qualified
Medicaid beneficiaries. Medicare and Medicaid fueled the development of the modern
nursing home industry.
Nursing homes do not have operating or emergency rooms, but resident units
look remarkably like hospital wards. The residential area of nursing homes are
centered on nursing stations, as is a hospital ward. Resident rooms, although they may
have personal touches, look much like hospital rooms. As in hospitals, rooms are
usually doubles, filled with two residents. Nursing home residents may eat in common
117 2004 NNHS Tables – Estimates - Demographics, CDC,
https://www.cdc.gov/nchs/data/nnhsd/Estimates/nnhs/Estimates_Demographics_Tables.pdf#Table05
(last visited Apr. 28, 2021).
118 See J. Hoyt, Senior Living History: 1960–1969 for a summary of events.
119 Public Law 89–97, 79 Stat. 286, Title XIX (1965)
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dining rooms, and they may enjoy common activities, but when they return to their
rooms, the experience is hospital-like.
In New York, nursing homes may be for-profit or not-for-profit entities. 120 New
York, though, prohibits publicly traded corporations from owning or operating nursing
homes. 121 When a not-for-profit nursing home is established, the New York Public
Health and Health Planning Council must approve the original members of the Board of
Directors. 122 For for-profit nursing homes, that same council must approve any
individual that owns ten percent or more of the nursing home entity. 123
A. The Regulatory Structure for Nursing Homes in New York
1. The Federal-State Regulatory Structure
The delivery of care and services in a nursing home is subject to pervasive
regulation at the state and federal level. The Department’s regulations at 10 N.Y.C.R.R.
Part 415 set out the New York nursing home operational requirements.
To qualify to receive payment under the Medicare or Medicaid program, a
nursing home must comply with the federal requirements of participation. The SSA
authorizes the Secretary of Health and Human Services (the Secretary) to promulgate
implementing regulations, and the Secretary has delegated that authority to the Centers
for Medicare and Medicaid Services (“CMS”). 124 The CMS nursing home regulations
are at 42 C.F.R. Part 483, Subpart B.
120 N.Y. Pub. Health Law § 2801-a.

121 N.Y. Pub. Health Law § 2801-a(4)(d),(e),(f).
122 N.Y. Pub. Health Law § 2801-a(1).
123 Id.
124 42 C.F.R. § 1819(h)(2).
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2. The Nursing Home Inspection Process
To oversee nursing home compliance, CMS contracts with state agencies – in
New York, the Department of Health – to conduct periodic surveys, i.e. inspections, to
determine whether nursing homes are in substantial compliance with federal
participation requirements. 125 Under federal law, the state agency must survey each
nursing home annually, with no more than 15 months elapsing between surveys, and
must survey them more often, if necessary, to ensure the correction of identified
deficiencies. 126 The state agency must also investigate all complaints. 127
CMS’s regulations differentiate among deficiencies, that is, violations of a
participation requirement, 128 according to three levels of scope – whether the
deficiencies are isolated, constitute a pattern, or are widespread – and four levels of
severity – from (i) relatively minor conditions presenting no actual harm with a potential
for minimal harm; to (ii) no actual harm with a potential for more than minimal harm but
not immediate jeopardy; to (iii) actual harm that is not immediate jeopardy; to (iv)
immediate jeopardy to resident health or safety. 129
CMS and the states have the authority to impose enforcement remedies against
a nursing home that is not in substantial compliance with federal participation
requirements. 130 CMS is authorized to impose a civil monetary penalty (“CMP”) for the
125 Soc. Security Act § 1864(a) (42 U.S.C. § 1395aa(a)); 42 C.F.R. §§ 488.10, 488.20, 488.10–488.28,
488.300–488.335.
126 Soc. Security Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.
127 Soc. Security Act § 1819(g)(4).
128 Soc. Security Act § 1819(b)–(d); 42 C.F.R. Part. 483, subpart B.
129 42 C.F.R. § 488.404.
130 42 C.F.R. § 1819(h)(2).
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number of days of noncompliance – a per-day CMP – or for each instance of
noncompliance – a per-instance CMP. 131
Under Section 12 of the Public Health Law, the Department has authority to
assess a civil penalty not to exceed $2,000 for every violation. The penalty may be
increased to an amount not to exceed $5,000 for a subsequent violation if the person
committed the same violation, with respect to the same or any other person or persons,
within 12 months of the initial violation for which a penalty was assessed pursuant to
paragraph (a) of this subdivision and if the violations were a serious threat to the health
and safety of an individual or individuals, or to an amount not to exceed $10,000 if the
violation directly results in serious physical harm to any patient or patients.
3. The CMS Five-Star Rating System
CMS maintains a website 132 which features a quality rating system that gives
each nursing home a rating of between one and five stars. The rating system is
intended to aid the public in choosing a nursing home. Nursing homes with five stars
are considered to have substantially above average quality and nursing homes with one
star are considered to have quality much below average. There is one overall five-star
rating for each nursing home, and a separate rating for each of the following three
categories:
• Health Inspections – The health inspection rating contains the three most
recent health inspections and investigations due to complaints. The results are
13142 C.F.R. § 488.430.

132Previously, the CMS website was known as the Nursing Home Compare. On December 1, 2020,
CMS retired its Nursing Home Compare website and replaced it with Care Compare, which can be
accessed at https://www.medicare.gov/care-compare/ (last visited Apr. 28, 2021).
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weighted, with the most recent survey findings receiving more weight than those from
prior years.
• Staffing – The staffing rating has information about the number of hours of
nursing staff care the facility provides on average to each resident each day. The
staffing rating is based on two measures: (1) Registered Nurse (RN) hours per resident
per day; and (2) total nurse staffing (including RN, licensed practical nurse (LPN), and
nurse aide) hours per resident per day. CMS adjusts reported staffing ratios to account
for resident condition using the Resource Utilization Group (RUG-III) case-mix system.
• Quality Measures – The quality measure rating has information on 15
different physical and clinical measures for short-stay 133 and long-stay nursing home
residents. 134 There are three short-stay measures: pressure ulcers; moderate to severe
pain; and delirium. There are seven long-stay measures: activities of daily living (ADL)
decline; mobility decline; catheter use; high-risk pressure ulcers; physical restraints;
urinary tract infections; and moderate to severe pain.
For the health inspections and quality measure domains, the top 10% of nursing
homes get five stars, the bottom 20% get one star, and the middle 70% receive two,
three or four stars, with equal proportions (23.33%) in each category. For the staffing
133 Long-stay resident quality measures show the average quality of care for certain care areas in a
nursing home for those who stayed in a nursing home for 101 days or more. Residents in a nursing home
for a long-stay are usually not healthy enough to leave a nursing home and are unable to live at home or
in a community setting. See Long-Stay Quality of Resident Care Measures, Quality of Resident Care,
CTRS. FOR MEDICARE & MEDICAID SERVS., https://data.cms.gov/provider-data/topics/nursing-homes/quality-
of-resident-care#long-stay-quality-of-resident-care-measures (last visited Apr. 28, 2021).
134 Short-stay resident quality measures show the average quality of resident care in a nursing home for
those who stayed in a nursing home for 100 days or less or are covered under the Medicare Part A skilled
nursing facility) benefit. These residents often are those who are recovering from surgery or being
discharged from a hospital stay and who receive care in a nursing home until they’re able to go back
home or to the community. See also Short-Stay Quality of Resident Care Measures, CTRS. FOR MEDICARE
& MEDICAID SERVS., https://data.cms.gov/provider-data/topics/nursing-homes/quality-of-resident-
care#short-stay-quality-of-resident-care-measures (last visited May 6, 2021).
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measures, the facility receives a five-star rating based on where the nursing home ranks
compared to the adjusted staffing hours for all freestanding nursing homes and where
the nursing home ranks compared to optimal staffing levels. To earn five stars on the
staffing rating, the nursing home must exceed the CMS staffing study thresholds for
both RN and total nursing hours per resident day.
B. Pre-Existing Issues in Nursing Homes
1. Infection Control
The pandemic shed light on pre-existing issues in nursing homes. The United
States Center for Medicare and Medicaid Services (CMS) has noted that infection is the
leading cause of morbidity and mortality in nursing homes. 135
Nursing homes must have an infection control program that includes a system for
preventing, identifying, reporting and controlling infections and communicable diseases
for all residents, staff, volunteers, visitors and other individuals providing services, and
precautions to prevent the spread of infections. There must be an annual review of the
plan. The Nursing Home Code also requires nursing homes to establish and maintain
an infection control program to investigate, control and take actions to prevent infections
at facilities, determine what procedures such as isolation and universal precautions
should be utilized and maintain a record of incidents and corrective actions related to
infections.10 N.Y.C.R.R. § 415.19. The regulations go on to require that the nursing
home assure that all equipment and supplies are cleaned and properly sterilized and
stored in a manner that will not violate the integrity of the sterilization. The regulation
further provides that the facility must prohibit persons known to have a communicable
Updates and Initiatives to Ensure Safety and Quality in Nursing Homes, CTRS. FOR MEDICARE &
135
MEDICAID SERVS. (Nov. 22, 2019), https://www.cms.gov/files/document/qso-20-03-nh.pdf.
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disease or infected skin lesions from direct contact with residents or their food. Finally,
the regulations provide standards for hand washing and linen handling and storage.
Further, 10 N.Y.C.R.R. § 81.1(c) defines patient neglect to include the failure to provide
sanitary clothing and surroundings. The infection control procedures in both the state
and federal regulations added COVID-19-specific standards in 2020 and both the New
York State Department of Health and the CDC provided additional guidance concerning
infection control after the outbreak of the pandemic.
2. Staffing
A license to operate a nursing home comes with a special obligation to the
residents who depend upon the facility to meet every basic human need. 136 Federal
and state requirements express expectations for the operation of a facility with respect
to performance and outcomes rather than by dictating structure and process. 137
Staffing is a structural measure that affects the processes and outcomes of care in
nursing facilities. 138
Federal law mandates that nursing homes have sufficient nursing staff with the
appropriate competencies and skill sets in order to assure residents safety and to attain
or maintain the highest practicable level of physical, mental, and psychosocial well-
136 Edward Livingston et al., Sourcing Personal Protective Equipment During the COVID-19 Pandemic,
323 J. AM. MED. ASS’N 1912 (2020), https://jamanetwork.com/journals/jama/fullarticle/2764031; see also

Jennifer Abbasi, “Abandoned” Nursing Homes Continue to Face Critical Supply and Staff Shortages as
COVID-19 Toll Has Mounted, 324 J. AM. MED. ASS’N 123 (2020),
https://jamanetwork.com/journals/jama/fullarticle/2767282 [hereinafter “Abandoned”]; Jordan Rau,
Nursing Homes Run Short Of COVID-19 Protective Gear As Federal Response Falters, NPR (June 11,
2020), https://www.npr.org/sections/health-shots/2020/06/11/875335588/nursing-homes-run-short-of-
covid-19-protective-gear-as-federal-response-falters.
137 Id.
138 Gooloo S. Wunderlich et al., Nursing Staff in Hospitals and Nursing Homes: Is It Adequate?, INST OF
MED. (US) COMMITTEE ON THE ADEQUACY OF NURSING STAFF IN HOSPITALS AND NURSING HOMES (1996),
https://pubmed.ncbi.nlm.nih.gov/25121200/.
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being of each resident. 139 This is determined by resident assessments and individual
plans of care with consideration of the number, acuity and diagnoses of the facility’s
resident population in accordance with the facility assessment. 140
Federal law also requires that the facility have sufficient numbers of Certified
Nursing Assistants (CNAs), 141 Licensed Vocational Nurse/Licensed Practical Nurses
(LVNs/LPNs), 142 and Registered Nurses (RNs) 143 on a 24-hour basis to provide nursing
care to all residents including a charge nurse on each shift, an RN for at least eight
consecutive hours a day, seven days a week, and a designated RN to serve as the
director of nursing on a full-time basis unless the facility has a CMS waiver. 144 The
director of nursing may serve as a charge nurse only when the facility has an average
daily occupancy of 60 or fewer residents. 145
Nursing homes are also required to post daily nurse staffing data on the total
number and type of staff and the actual hours worked by nursing staff by shift. 146 In
addition, facilities must ensure that nursing staff have the competency and skill sets to
care for residents. 147
139 42 C.F.R. § 483.70(e).

140 42 C.F.R. § 483.70(e).
141 CNAs provide assistance with activities of daily living, such as ambulation, transfers to/from bed,
feeding, hygiene, toileting, bathing, dressing, bed cleaning and adjustments, turning and positioning of
immobile patients, and other care and comfort
142 Primarily focus on medication administration, monitoring vital signs, and providing certain treatments
143 Primarily focus on acute care needs, complex treatments, compliance with medical orders,
communication with physicians and specialists, record-keeping, and complex health assessments.
144 State Operations Manual - 7014.1.1 Waiver of 7-Day Registered Nurse (RN) Requirement for Skilled
Nursing Facilities CTRS. FOR MEDICARE & MEDICAID SERVS., https://www.cms.gov/Regulations-and-

Guidance/Guidance/Transmittals/Downloads/R97SOMA.pdf (last visited Apr. 29, 2021).
145 42 C.F.R. § 483.35.
146 42 C.F.R. § 483.35.
147 Staffing Data Submission Payroll Based Journal (PBJ), CTRS. FOR MEDICARE & MEDICAID SERVS.,
https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-
Instruments/NursingHomeQualityInits/Staffing-Data-Submission-PBJ.html (last visited Apr. 28, 2021).
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Federal regulations require the following steps be taken into consideration when
a staffing model is determined for any nursing home: 148
(a) determine the collective resident acuity and care needs, 149
(b) determine the actual nurse staffing levels, 150
(c) identify appropriate nurse staffing levels to meet residents care needs, 151
(d) examine evidence regarding the adequacy of staffing 152, and
(e) identify gaps between the actual staffing and the appropriate nursing
staffing levels based on resident acuity. 153
Federal regulations require nursing homes to conduct a facility self-assessment
regarding the resources and qualified staff needed to meet patient care needs. This
assessment must consider “the number, acuity and diagnoses of the facility’s resident
population” and must be updated at least annually. 154 The facility assessment should
define the facility’s strategy and resource allocation decisions. 155 Although corporate
input may be included, the assessment must be conducted at the facility using many
sources of information such as the residents, families, councils, and representatives. 156
Facility assessment is meant to be a thorough process and surveyors may issue a
deficiency if the assessment is generic or designed to justify preexisting or budgeted
staffing levels and not based on resident acuity. 157
148 Id.
149 Id. (indicating that Resident care needs differ depending on the acuity level (or case mix) of the facility
residents. Higher acuity rates require higher staffing levels.)
150 Id.
151 Id.
152 Id.
153 Id.
154 42 C.F.R. § 483.70(e).
155 Id.
156 42 C.F.R. § 483.35.
157 Id.
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The regulation goes on to state that the collective resident acuity and care needs
are based on an aggregation of individual resident assessments and care needs and
are the basis for the resident’s plan of care. 158 Federal law further requires nursing
homes to conduct a comprehensive resident assessment of each individual resident on
admission, annually, and when a significant change in status occurs. 159 CMS
developed a standardized resident assessment instrument using the Minimum Data Set
(“MDS”) to document resident’s needs, strengths, goals, functional and health status,
life history, and preferences. 160 The MDS data are reported electronically by each
facility to CMS and are used by facilities to develop a comprehensive care plan that
determines appropriate resident services, needs, and preferences.
A majority of states have established their own minimum staffing requirements
for nursing homes. 161 For example, California requires all nursing homes to provide at
least 3.5 nursing hours per resident day, although some waivers are allowed. 162 The
New York State Legislature is actively considering legislation establishing minimum
staffing levels for New York nursing home, though the bill’s prospects are unknown as
of this writing. 163 .
Finding nursing staff has been challenging for administrators and directors of
nursing homes even with substantial recruitment efforts including providing H1B visas164
158 Id.
159 Id.
160 Id.
161 Appropriateness of Minimum Nurse Staffing Ratios, CTRS. FOR MEDICARE & MEDICAID SERVS. (Dec. 24,
2001), https://theconsumervoice.org/uploads/files/issues/CMS-Staffing-Study-Phase-II.pdf.
162 CAL. HEALTH & SAFETY §1276.5.
163 See S.6346/A.7119 (2021). The bills have now passed both houses and are awaiting gubernatorial
action.
164 The H1B visa is an employment-based, non-immigrant visa for temporary workers. For this visa, an
employer must offer a job in the US and apply for your H1B visa petition with the US Immigration
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for nurses trained overseas. Aside from recruitment abroad, nursing staffing agencies
and registries for supplemental staffing and overtime accrual were frequently used pre-
pandemic. 165
Studies of nursing homes have shown that there is a strong positive relationship
between the number of nursing home staff who provide direct care to residents daily
and the quality of care and quality of life of residents in the nursing home. 166 Poor
staffing is known to have a negative impact on the quality and outcome of care in that it
increases the likelihood of negligence, harm to residents and staff, poor infection control
compliance and errors. 167 “In nursing homes, quality and staffing are important factors,
and there already exists system-wide disparities in which facilities with lower resources
and higher concentrations of socio-economically disadvantaged residents have poorer
health outcomes”168 At least one study has found that long-term care facilities with
higher concentrations of disadvantaged residents, including Medicaid residents and
racial and ethnic minorities, lower nurse staffing levels (particularly RNs), and lower
scores on CMS five-star quality measures, had higher rates of confirmed COVID-19
Department. This approved petition is a work permit which allows the recipient to obtain a visa stamp and
work in the U.S. for that employer.
165 The outcomes of nursing home care include changes in health status and conditions attributable to the
care provided or not provided. Outcomes of long-term care are “most fairly expressed in terms of the
relationship between expected and actual outcomes.” For some nursing home residents, realistic
expectations for the outcomes of care may be maintained levels of health or slower-than-expected rates
of decline, rather than improved health (R.L. Kane, 1995, p. 1379). The currently used measures of
outcome include global measures such as mortality rates and rehospitalization rates (Lewis et al., 1985;
GAO, 1988a, b; Spector and Takada, 1991) Staffing and Quality of Care in Nursing Homes, in NURSING
STAFF IN HOSPITALS AND NURSING HOMES, IS IT ADEQUATE? (Gooloo S. Wunderlich, Frank Sloan, &
Carolyne K. Davis eds., Nat’l Acad. Press, 1996), https://www.ncbi.nlm.nih.gov/books/NBK232672/.
166 John F. Schnelle et al., Relationship of Nursing Home Staffing to Quality of Care, 39 HEALTH SERV.
RES. 225 (Apr. 2004), https://pubmed.ncbi.nlm.nih.gov/15032952/.

167 COVID-19 Toll in Nursing Homes Linked to Staffing Levels and Quality, UNIV. OF ROCHESTER MED.
CTR. (June 18, 2020), https://www.sciencedaily.com/releases/2020/06/200618073538.htm.

168 Yue Li, Ph.D., professor in the University of Rochester Medical Center (URMC), Department of Public
Health Sciences, Journal of the American Geriatrics Society. “These same institutional disparities are
now playing out during the coronavirus pandemic.” Id.
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cases and deaths. Higher nurse staffing ratios was strongly associated with fewer
cases and deaths 169.
Low or poor staffing is usually considered amongst the strongest causes of poor
quality in nursing homes. 170 Poor staffing can cause staff to build in shortcuts to alter
the amount of time needed to perform basic tasks, such as: not washing hands
sufficiently as they move from one patient to the next, 171 failing to don masks, gloves
and gowns when in the rooms of contagious patients in isolation, 172 partially dressing
residents to cover only the obvious body areas, 173 not offering basic hygiene to
residents, 174 engaging in improper disposal of items used for residents in isolation, 175
and failing to attend to the needs of the residents in isolation in a timely manner. 176 Low
169 Id.
170 Charlene Harrington, RN, PhD, professor emeritus of sociology and nursing at the UCSF School of
Nursing. Harrington also is director of the UCSF National Center for Personal Assistance Services.
Adding that,“Poor quality of care is endemic in many nursing homes, but we found that the most serious
problems occur in the largest for-profit chain.” See Charlene Harrington, supra note . “Of the 401
for-profit facilities, more than two-thirds have the lowest possible CMS Staffing rating of 1-Star or 2-Stars.
Similarly, of the 100 facilities in New York state with a CMS 1-Star overall rating, 82 are for-profit
facilities.” See Attorney General Report, supra note 62.
171 Jordan Rau, Coronavirus Stress Test: Many 5-Star Nursing Homes Have Infection-Control Lapses,
KHN (Mar. 4, 2020), https://khn.org/news/coronavirus-preparedness-infection-control-lapses-at-top-rated-

nursing-homes/.
172 Id., reporting that inspectors also watched another nursing home employee work in the room of a
patient with pneumonia without wearing a mask, gown and gloves as required by a sign outside the room.
They noted in their report that the facility had experienced two outbreaks of influenza that year, affecting
at least 17 residents and seven staff members.
173 Id. In April 2019, it was reported that during inspection at the Kirkland nursing home the inspectors
there observed a registered nurse treating a patient whose feet were touching the floor, even though one
heel had a pressure sore. The resident’s daughter also said she feared the heel was infected. “It was
unhygienic,” the daughter told inspectors. Id.
174 Id. Reporting that during an interview, Hunter, the Washington state Ombud, said that during her
recent visits to 14 nursing homes in three Northwestern states reporting that that aides were generally
good about using hand sanitizer but rarely washed residents’ hands. Not every resident room had a sink,
she said. “I haven’t seen one resident have their hands washed during lunchtime or dinnertime,” she said.
Id.
175 Id.
176 Id.
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or poor staffing can lead to errors. 177 Not every error is life threatening, but an error in
infection control could cause serious harm to a patient or staff member.
Long before the novel coronavirus, the nation’s nursing homes were struggling to
comply with basic infection prevention protocols. 178 According to a Kaiser Health News
analysis of federal records in the beginning of 2017, government health inspectors cited
more nursing homes for failing to ensure that all workers follow infection prevention and
control rules than for any other type of violation. 179
Since 2017, more than 9,300 nursing homes nationally have been cited for failing
to follow prevention and control rules. These violations were more common in facilities
that received low ratings for staffing levels from the Centers for Medicare & Medicaid
Services. Sixty-five percent (65%) of 1-star nursing homes have at least one infection.
3. Ownership and Other Facility Characteristics
Numerous studies have been done to determine whether there is a relationship
between cases and deaths in nursing home facilities and factors such as infection
control, staffing levels and shortages, community spread, and facility characteristics
including ownership, urban or non-urban location, racial/ethnic composition of
population, and Medicaid funding.
177 Id.
178 Id.
179 Jordan Rau, As Coronavirus Looms, Many Nursing Homes Fall Short On Infection Prevention, NPR
(Mar. 4, 2020), https://www.npr.org/sections/health-shots/2020/03/04/812162416/as-coronavirus-looms-

many-nursing-homes-fall-short-on-infection-prevention.
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A literature review of 30 published studies done by the Kaiser Family
Foundation 180 reported the following findings using cases, deaths, and severity of
outbreak, as well as other measures in long-term care facilities:
• Nursing homes with relatively high shares of Black or

Hispanic residents were more likely to report at least one
COVID-19 death than nursing homes with lower shares of
Black or Hispanic residents.
• Among nursing homes that had at least one case of

coronavirus, nursing homes with relatively high shares of
Black or Hispanic residents reported more severe case
outbreaks than nursing homes with low shares of Black or
Hispanic residents, as measured by confirmed or suspected
cases as a share of nursing home beds.
• National patterns of COVID-19 deaths and cases in

nursing homes with relatively high shares of Black or
Hispanic residents generally persist at the state level, based
on data from 21 states.
Other facility-level characteristics findings were also reported based upon a
literature review of 30 published studies: 181
• Long-term care facilities that are for-profit, have a

higher share of residents who are people of color, are
located in urban areas, and have more beds are more likely
to have COVID-19 cases and deaths.
• For-profit nursing facilities are at higher risk for

COVID-19 cases and deaths, while nursing facilities with
labor unions are less likely to have COVID-19 deaths.
• Long-term care facilities with higher shares of

residents who are people of color are more likely to
experience COVID-19 cases and/or deaths.
180 Priya Chidambaram et al., Racial and Ethnic Disparities in COVID-19 Cases and Deaths in Nursing
Homes, KAISER FAM. FOUND. (Oct. 27, 2020), https://www.kff.org/coronavirus-covid-19/issue-brief/racial-
and-ethnic-disparities-in-covid-19-cases-and-deaths-in-nursing-homes/.
181 Nancy Ochieng, Factors Associated With COVID-19 Cases and Deaths in Long-Term Care Facilities:
Findings from a Literature Review, KAISER FAM. FOUND. (Jan. 14, 2021), https://www.kff.org/coronavirus-
covid-19/issue-brief/factors-associated-with-covid-19-cases-and-deaths-in-long-term-care-facilities-
findings-from-a-literature-review/.
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• Urban location may be associated with cases in long-
term care facilities.
• Facilities with more beds and higher occupancy rates

are more likely to have COVID-19 cases and/or deaths.
• There is some association between the share of

residents covered by Medicaid as a primary payer and
COVID-19 burden.
While the KFF report is neither exhaustive nor definitive and additional research
will be necessary, the findings do give a preliminary picture of the issues and
relationships that merit further study and examination.
C. The New York Nursing Home Experience During the Pandemic
Nearly 40% of the COVID deaths in the United States have occurred in nursing
homes. As of March 3, 2021, it was reported that 13,625 residents of New York nursing
homes had succumbed to the virus. 182 No single explanation will account for the dire
and unjust outcomes, and no single actor bears responsibility for the tragedy we have
witnessed. In this section of the Report, we will examine the multiple considerations
that weighed in the balance and the confluence of decisions that may have created the
perfect public health storm.
Things went strikingly wrong. They went wrong for a variety of reasons. They
went wrong due to a failure to recognize the depth and scope of the problem early.
They went wrong because information was suppressed, in China and at the hands of
the President. They went wrong because too much faith was placed in the ability of the
health care system to check the epidemic. They went wrong because elements of the
public health structure had been weakened. They went wrong because early efforts to
See New York COVID-19 Fatality Data: Nursing Homes & Adult Care Facilities, LONG TERM CARE
182
CMTY. COAL. (Mar. 3, 2021), https://nursinghome411.org/ny-nursinghome-covid-data/.
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check the virus’ spread were ineffectual. They went wrong because testing failed. They
went wrong because warning signs, big, flashing warning signs, were missed. They
went wrong because the virus was not understood – especially that asymptomatic
spread was a feature of this virus, unlike other recent viruses. They went wrong
because there was not enough PPE. And, they went wrong because the virus arrived
so quickly in New York and with so much virulence that adjustments could not be made
in time to avoid catastrophic consequences.
This is not to overlook the performance of nursing homes. As discussed
throughout this Report, collectively, nursing homes were poorly prepared for the
onslaught. Already thin staffing became worse for nursing homes during the
coronavirus pandemic. 183 During the COVID-19 pandemic, nursing homes, at least
initially, were under pressure to maintain staff levels with limited access to PPE. 184
Nursing home caregivers were and are unable to social distance, as their job requires
close contact with residents. 185 During the initial surge, the shortage of PPE put staff at
increased risk of contracting the virus. Staff were lost for at least 14 days for
183 See Harrington et al., Nursing Home Staffing, supra note 170; see Ari Min & Hye Chong Hong, Effect
of Nurse Staffing on Rehospitalizations and Emergency Department Visits Among Short-Stay Nursing
Home Residents: A Cross-Sectional Study Using the US Nursing Home Compare Database, 40
GERIATRIC NURSING 160 (2019), https://pubmed.ncbi.nlm.nih.gov/30292528/ [hereinafter Effect of Nurse
Staffing]; see also Sophie Quinton, Staffing Nursing Homes Was Hard Before the Pandemic. Now It’s
Even Tougher, STATELINE (May 18, 2020), https://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2020/05/18/staffing-nursing-homes-was-hard-before-the-pandemic-now-its-even-
tougher [hereinafter Even Tougher].
184 See Edward Livingston et al., Sourcing Personal Protective Equipment During the COVID-19
Pandemic, 323 JAMA 1912 (2020); see also Abbasi, “Abandoned”, supra note 136; Jordan Rau, Nursing
Homes Run Short Of COVID-19 Protective Gear As Federal Response Falters, NPR (June 11, 2020),
https://www.npr.org/sections/health-shots/2020/06/11/875335588/nursing-homes-run-short-of-covid-19-
protective-gear-as-federal-response-falters.
185 Long-Term Care Nursing Homes Telehealth and Telemedicine Tool Kit, CTRS. FOR MEDICARE AND
MEDICAID SERVS. (2020).
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quarantine due to illness or exposure 186 Other factors exacerbated staff pressures,
including meeting the COVID protocols and isolating residents who were suspected of
having the virus.
The ban on visitors also reduced the availability of informal care provided to
residents by visiting family and friends. This created a situation in which time and effort
needed from nursing home staff increased, yet structural factors made it more difficult to
address exacerbating staff shortages. 187 Pandemic-induced staff shortages meant
federal staffing standards were not met.
With all these problems, the experience in nursing homes cannot be separated
from the State and nation’s overall experience with COVID-19. Early opportunities to
check the spread were missed, denied, or fumbled.
The missed opportunities start with China. Although China did release the
genetic map of the virus (which actually triggered the ultimately successful efforts of
BioNTech and Moderna to develop vaccines), 188 China refused to allow the Chinese
Center for Disease Control to speak to the United States Centers for Disease
Control. 189 Thus, the CDC was denied the chance to learn from the Chinese
experience.
Even before the virus arose in China, public health resources had been allowed
to weaken. This weakening had occurred over the years in a number of ways. Most
186 Alex Spanko, Nursing Home Staffing Strain Could Hit ‘High Point’ This Week as COVID-19 Crisis
Rages, SKILLED NURSING NEWS (Apr. 12, 2020), https://skillednursingnews.com/2020/04/nursing-home-
staffing-strain-could-hit-high-point-this-week-as-covid-19-crisis-rages/.
187 Abbasi, “Abandoned,” supra note 136.
188 China releases genetic data on new coronavirus, now deadly | CIDRAP (umn.edu).
189 Donald G. McNeil Jr. and Zolan Kanno-Youngs, C.D.C. and W.H.O. Offers to Help China Have Been
Ignored for Weeks, N.Y. TIMES (Feb. 7, 2020), https://www.nytimes.com/2020/02/07/health/cdc-

coronavirus-china.html.
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directly related to COVID-19, the United States CDC staff in China had been cut by
more than two-thirds, from 47 to 13. 190 The National Security Council’s Directorate for
Global Health and Security and Biodefense had been disbanded in 2018. The
Directorate had responsibility for pandemic preparation. 191
Then there was the failure of testing. The CDC took exclusive authority to
develop a diagnostic test. Its efforts failed, costing a crucial month as the disease was
beginning its spread in the United States. 192 New York State, after some weeks, was
able to develop its own test, but the supply was insufficient, and the testing turnaround
time was too long. 193 Too few people were able to be tested, and the results, by the
time they were received, were often of little use. In this, our national experience can be
compared to that of South Korea. South Korea was able to develop an early,
successful testing regimen, which supported the all-important contact tracing effort.
Even today, South Korea largely has been able to keep the spread of the virus largely in
check. 194
There was also the speed of the pandemic, lack of recognition, political tensions
and short-term delays. The virus was here in New York quickly, too quickly for the body
190 M. Taylor, U.S. Slashed CDC Staff in China Prior to Coronavirus Outbreak, REUTERS (Mar. 25, 2020),
https://www.reuters.com/article/us-health-coronavirus-china-cdc-exclusiv-idUSKBN21C3N5.
191 Deb Riechmann, Trump disbanded NSC pandemic unit that experts had praised, ASSOC. PRESS (Mar.
14, 2020), https://abcnews.go.com/Politics/wireStory/trump-disbanded-nsc-pandemic-unit-experts-

praised-69594177.
192 Carolyn Y. Johnson and Laurie McGinley. What went wrong with the coronavirus tests in the U.S.,THE
WASH. POST (Mar. 7, 2020). https://www.washingtonpost.com/health/what-went-wrong-with-the-

coronavirus-tests/2020/03/07/915f5dea-5d82-11ea-b29b-9db42f7803a7_story.html.
193 Joseph Goldstein and Michael Gold, City Pleads for More Coronavirus Tests as Cases Rise in New
York, N.Y. TIMES (Mar. 6, 2020), https://www.nytimes.com/2020/03/06/nyregion/coronavirus-new-

york.html?searchResultPosition=2.
194 In fact, South Korea had a national plan for responding to an epidemic and began implementing that
plan in January 2020 as soon as the first case was recognized in that nation. June-Ho Kim, et al.,
Emerging COVID-19 Success Story: South Korea Learned the Lessons of MERS, EXEMPLARS IN GLOB.
HEALTH (Mar. 5, 2021), https://ourworldindata.org/covid-exemplar-south-korea.
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politic to respond. There was the mistaken belief, or at least mistaken public
statements, that New York was ready to control the virus. There were the political
tensions between Governor Cuomo and Mayor DeBlasio, which interfered with
communication between the State and City Departments of Health. And finally, there
was the delay in shutting down New York’s economy. That delay was only a matter of a
few days, and it would be unfair to suggest any sort of criticism for a public official’s brief
delay in issuing such a significant order, but hindsight (and published reports) shows
that the delay of a mere few days greatly contributed to the virus’ spread and number of
deaths. 195
The speed with which the virus arrived in New York also adversely affected
nursing homes. Nursing homes needed PPE. There was far from enough. The federal
government in February had undertaken an effort to purchase PPE, only to find that
China had cornered the market, having purchased all equipment available at the time to
meet its own needs as the first nation impacted by the virus. 196
Face masks, shields, gloves, and other protective items quickly became the most
wanted items for households and healthcare alike. The public was discouraged from
wearing masks, originally being told masks were not useful protection from the virus. 197
That rationale quickly changed – masks and PPE had to be preserved to be available
195 See J. David Goodman, How Delays and Unheeded Warning Hindered New York’s Virus Fight, N.Y.
TIMES (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/nyregion/new-york-coronavirus-response-
delays.html; see also Watch a Timeline of Disease Expert Dr. Anthony Fauci’s Comments on
Coronavirus, CNBC (Mar. 26, 2020), https://www.cnbc.com/video/2020/03/26/watch-a-timeline-of-
disease-expert-dr-anthony-faucis-comments-on-coronavirus.html.
196 China’s Epic Dash for PPE Left the World Short on Masks, BLOOMBERG BUSINESSWEEK (Sept. 17,
2020), https://www.bloomberg.com/news/articles/2020-09-17/behind-china-s-epic-dash-for-ppe-that-left-
the-world-short-on-masks.
197 How Mask Guidelines Have Evolved, N.Y. TIMES (April 27, 2021),
https://www.nytimes.com/2021/04/27/science/face-mask-guidelines-timeline.html.
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for health care workers. 198 Thus, at the time the virus was quickly spreading, what later
became recognized as one of the most effective means to check the virus’ spread --
mask-wearing, was being discouraged.
At the same time, PPE was in short supply for nursing homes. Hospitals came
first. All other health care providers came after. PPE items’ cost increased several
times over at the pandemic’s heights, if a provider could even get them. 199 Massively
increased consumption rates rapidly sapped providers’ stored supplies and led to high
competition levels for available shipments. 200 Orders frequently did not arrive or were
appropriated and redistributed by federal agencies on behalf of state-level emergency
responses. 201 Scarcity was made worse by slow, sometimes, international supply lines,
and limited raw materials. 202 After its initial efforts, the federal government withdrew
from pursuing PPE, leaving the states, including New York, on their own. 203
198 Id.
199 Daniella Diaz, Geneva Sands and Cristina Alesci, Protective equipment costs increase over 1,000%
amid competition and surge in demand, CNN POLITICS (Apr. 17, 2020),
https://edition.cnn.com/2020/04/16/politics/ppe-price-costs-rising-economy-personal-protective-
equipment/index.html.
200 Erin Schumaker, How did the US come up so short on PPE?, ABC NEWS (Apr. 14, 2020),
https://abcnews.go.com/Health/us-short-ppe/story?id=70093430; Tucker Doherty and Brianna Ehley,

Trump called PPE shortages 'fake news.' Health care workers say they're still a real problem, POLITICO
(Apr. 26, 2020), https://www.politico.com/news/2020/04/26/trump-ppe-fake-news-207523.
201 Terry Nguyen, How the Trump administration has stood in the way of PPE distribution, VOX (Apr. 4,
2020), https://www.vox.com/2020/4/4/21208122/ppe-distribution-trump-administration-states; Diana

Falzone, “Like a Bully at the Lunchroom”: How the Federal Government Took Control of the PPE
Pipeline, VANITY FAIR (May 6, 2020), https://www.vanityfair.com/news/2020/05/how-the-federal-
government-took-control-of-the-ppe-pipeline; Mia Jankowicz, Officials in at least 6 states are accusing the
federal government of quietly diverting their orders for coronavirus medical equipment, BUSINESS INSIDER
(Apr. 8, 2020), https://www.businessinsider.com/coronavirus-federal-govt-fema-accused-taking-states-
masks-ventilator-orders-2020-4.
202 ADB Briefs, Global Shortage of Personal Protective Equipment amid COVID-19: Supply Chains,
Bottlenecks, and Policy Implications, ASIAN DEV. BANK (Apr. 2020),

https://www.adb.org/sites/default/files/publication/579121/ppe-covid-19-supply-chains-bottlenecks-
policy.pdf.
203 Trump administration tries to narrow stockpile’s role for states, ASSOC. PRESS (Apr. 3, 2020),
https://www.latimes.com/world-nation/story/2020-04-03/trump-admin-tries-to-narrow-stockpiles-role-for-
states.
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Federal and New York State government responses were intended to help and
did provide some relief during the winter and spring of 2020. For example, the federal
medical assistance percentage (“FMAP”) of state assistance expenditures was boosted
due to increased operating costs; however, that increase was terminated in mid-
2020. 204 The imposition and enforcement of New York’s 60-day required PPE reserve
for nursing homes, meant to prevent a second scramble for PPE, was mistimed and
added local stress to the situation. Many New York providers were suddenly competing
for huge amounts of the same supplies when PPE was in extremely short supply. Once
providers met the required standard, they were required to maintain that level of PPE
reserves, although the period of greatest need may have passed. 205
What was most devastating for nursing homes was asymptomatic spread. In
March 2020, asymptomatic transmission was not yet well-recognized. It was because
asymptomatic spread was not recognized that the public authorities had believed the
virus could be controlled. 206 Instead, the virus had spread through the New York
metropolitan area and was present in its nursing homes. Staff was infected. Residents
were infected.
At least through New York’s first surge, the greatest determinant of COVID-19
results spread appears to have been location. A nursing home located in a
204 On March 18, 2020, the President signed into law H.R. 6021, the Families First Coronavirus Response
Act (FFCRA) (Pub. L. 116-127). Section 6008 of the FFCRA provided a temporary 6.2 percentage point
increase.
205 See Note 59, supra.
206 See Daniel Jernigan, Update: Public Health Response to the Coronavirus Disease 2019 Outbreak –
United States, February 24, 2020, CDC (Feb. 24, 2020),

https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6908e1-H.pdf; Andrew Romano, Fauci Once
Dismissed Concerns About ‘Silent Carriers’ of Coronavirus. Not Anymore., YAHOO!NEWS (Apr. 7, 2020),
https://news.yahoo.com/fauci-once-dismissed-concerns-about-silent-carriers-of-coronavirus-not-anymore-
161718057.html; see also Older Adults, CDC (April 16, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/older-adults.html.
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neighborhood with a high number of COVID-19 cases was much more likely to have a
COVID-19 outbreak than a nursing home in a neighborhood with a lower level of
cases. 207 That is not surprising. The largest proportion of a nursing home’s staff are
low-paid direct care aides, food service workers and custodian staff. These workers are
typically drawn from areas in close proximity to the nursing home. Thus, especially in
the early days of the epidemic in New York, when asymptomatic spread was not yet
recognized, there was a close correlation between nursing home location and COVID-
19 cases.
Nursing home residents were in harm’s way. The CDC posted guidance on
March 5th advising people over 60 to take special precautions. 208 The first recognized
outbreak in the United States occurred at a nursing home in Washington State.
Experience with the virus thus far has shown that virus has been most dangerous for
older individuals. Almost 96% of deaths have occurred in individuals over the age of 50,
with over 88% in those over 60, and over 70% in those over 70. 209 The comorbidities
are also striking, as are their relationships to age. Of those who have passed away due
to the virus in New York State, 92% have had at least one known comorbidity, and
these are comorbidities typically associated with aging including hypertension, diabetes,
dementia, coronary artery disease, and Chronic Obstructive Pulmonary Disorder. 210
207 Margaret Sugg et al., Mapping Community-Level Determinants of COVID-19 Transmission in Nursing
Homes: A Multi-Scale Approach, NAT’L INST. OF HEALTH (Aug. 25, 2020),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7446707/.
208 Elizabeth Cohen, New CDC guidance says older adults should 'stay at home as much as possible' due
to coronavirus, CNN POLITICS (Mar. 6, 2020), https://www.cnn.com/2020/03/06/health/coronavirus-older-

people-social-distancing/index.html.
209 COVID-19 Fatality Tracker, N.Y. ST. DEP’T OF HEALTH, https://covid19tracker.health.ny.gov/views/NYS-
COVID19-Tracker/NYSDOHCOVID-19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n
(last visited Apr. 28, 2021).
210 Id.
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The virus had an immediate impact on nursing home staffing. Nursing homes,
which were already leanly staffed, found themselves with missing staff. Staff became ill.
Staff stayed away from work to care for their own families. And some staff simply
became afraid. This is not a criticism. Health care workers, including nursing home
staff, have performed heroically through the epidemic. Nevertheless, there were
staffing shortages. Operators reacted with forced overtime, hazard pay and bonuses. 211
Into this toxic mix came the March 25th Department of Health directive that
required nursing homes to accept COVID-19-positive returning and prospective
residents, and specifically barred testing of those individuals. As will be discussed
further in this report, how many individuals were admitted into nursing homes as a result
of this directive is not yet clear.
The Governor and the State Department of Health were focused on readying the
State’s hospitals. The same focus was not placed on preparing the State’s nursing
homes for the onslaught of the virus. It is also not clear to the Task Force that the
State’s nursing homes took sufficient meaningful steps to prepare for the arrival of the
virus. The Task Force saw no evidence that the State’s nursing homes prepared for the
virus by increasing staffing, or providing staff training that had any meaningful impact, or
stocking up on PPE. After the virus arrived, there were nursing homes that created
COVID-19-only floors or wings. There was also hazard pay.
There is one other event to mention. In March of 2020, the Governor, via
Executive Order, granted immunity against ordinary negligence to health care
211 Noelle Denny-Brown, Denise Stone, Burke Hays, and Dayna Gallagher, COVID-19 Intensifies Nursing
Home Workforce Challenges, U.S. DEP’T OF HEALTH & HUMAN SERVS., OFF. OF THE ASST. SEC. FOR
PLANNING & EVAL. (Oct. 19, 2020), https://aspe.hhs.gov/basic-report/covid-19-intensifies-nursing-home-
workforce-challenges.
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professionals, and certain health care entities, including nursing homes. 212 That
immunity was codified a short time later. 213
The grant of immunity was controversial from the start. Immunity stripped the
protections provisions under the New York State Public Health Law that protected
nursing home residents from abuse and neglect. The argument for immunity was that it
shielded health care workers from the uncertainty of an overwhelmed system facing an
unknown disease with to-be-discovered treatments. In nursing homes, the principal
beneficiaries of the grant of immunity were operators. The principal argument against
immunity was that it would allow nursing home operators to inadequately staff, or
otherwise fail to meet their obligations with impunity.
The immunity grant was partially repealed in August. 214 As modified, any health
care facility or health care professional was shielded from any liability, civil or criminal,
for any harm or damages, so long as the following conditions were met:
• The health care facility or health care professional is providing

health care services in accordance with applicable law, or
where appropriate pursuant to a COVID-19 emergency rule;
• The act or omission occurs in the course of providing health

care services and the treatment of the individual is impacted
by the health care facility’s or health care professional’s
decisions or activities in response to or as a result of the
COVID-19 outbreak and in support of the state’s directives;
and
• The health care facility or health care professional is providing

health care services in good faith.
212 Executive Order 202.10 (Mar. 23, 2020).

213 2020 N.Y. Laws ch..56, part GGG (April 3, 2020).
214 2020 N.Y. Laws ch. 134 (Aug. 3, 2020).
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The immunities did not apply if the harm or damages were caused by an act or
omission that was willful or arose out of intentional criminal misconduct, gross
negligence, reckless misconduct, or intentional infliction of harm by the health care
facility or health care professional providing health care services. However, decisions
resulting from a resource or staffing shortage would not be considered to be willful or
intentional and thus, could not fall within the exceptions (i.e., immunity applied to
decisions resulting from resource or staffing shortages).
The immunity provision has now been repealed. 215
There are those who argue that the grant of immunity caused nursing home
operators to act recklessly. This is not a theory that the Task Force was able to
examine. There is not yet any data or reports on whether nursing homes behaved
differently because of the grant of immunity. With vaccines and the reopening of
nursing homes to visitations, we may soon have a real sense of how nursing home
residents fared regarding their other care needs. We do know that there were some
nursing home operators who more readily accepted COVID-19 patients. A large part of
the reason for the grant of immunity was to encourage just that, the acceptance of
COVID-19 individuals. During the six-plus weeks that the March 25th directive was in
place, no encouragement should have been needed as a mandate to accept those
patients was in place. As the Task Force learned, though, there were nursing homes
that refused to accept COVID-19 patients before and even while the directive was in
place. As New York moved past the first surge, and nursing home occupancies
dropped, immunity may have been a boon to operators anxious to fill empty beds. The
215 2021 N.Y. Laws ch. 96.
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directive may also have encouraged operators to continue short staffing while it was in
place. Immunity may also have provided a level of comfort to the professional staff,
encouraging them to remain in place.
One would think that staffing shortages resulted in worse outcomes for nursing
home residents. The Task Force would not dispute that insufficient numbers of staff
does result in a diminution of care and jeopardizes residents. Insufficient numbers of
staff can also make infection control more difficult. As staff move quickly, more quickly
than they should, from one resident to another, corners can be cut, and those corners
can include steps critical to infection control, such as hand-washing or changing of
gloves.
Nevertheless, the research available to the Task Force at this time is
inconclusive regarding whether better-staffed nursing homes had better outcomes
regarding COVID-19 than poorly staffed nursing homes. There is a report that found
that residents of unionized nursing homes suffered fewer deaths than nursing homes
where unions were not present. 216 According to that report, unionized nursing homes
had more staff, better trained staff, and more PPE. Other reports have not found a clear
correlation between COVID-19 deaths and staffing levels. 217 As discussed above, the
federal Center for Medicare and Medicaid Services utilizes a five-star system for rating
nursing home quality. These reports have found no different COVID-19 outcomes
between one and five star rated nursing homes.
216 Adam Dean et al., Mortality Rates For COVID-19 Are Lower in Unionized Nursing Homes, 39 HEALTH
AFFAIRS 1993 (2020), https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2020.01011.
217 Rebecca J. Gorges & R. Tamara Konetzka, Staffing Levels and COVID‐19 Cases and Outbreaks in
U.S. Nursing Homes, 68 JAGS 2462 (2020),

https://agsjournals.onlinelibrary.wiley.com/doi/10.1111/jgs.16787.
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The Task Force also looked at whether a nursing home’s for-profit or not-for-
profit status was a determinant of COVID-19 results. The published reports, thus far,
have not shown that for- or not-for-profit status was a COVID-19 determinant. 218
Once New York was past the first surge, and asymptomatic spread was
understood, COVID-19 outbreaks continued to occur throughout the State. 219 As
discussed above, beginning in May, nursing homes were required to routinely test their
staffs. Nursing homes were also closed to visitors. The mandate to accept COVID-19
residents had also been rescinded. Adequate supplies of PPE became available.
Nevertheless, virus outbreaks continued to occur in nursing homes throughout the
State, and continued until the wide-spread vaccination of the State’s nursing home
residents. COVID-19 spreads through the air. An aerosol disease in a facility filled with
individuals particularly vulnerable to the disease is simply a recipe for disaster. 220 Even
with widespread testing, due to asymptomatic spread, an individual can be COVID-19
positive, and an unknown carrier for a period of time.
1. The Impact of the March 25th Directive
The March 25th directive to New York’s nursing homes regarding the admission
of COVID-19-positive residents has become so central to the public narrative of New
York’s first surge experience that it must be discussed separately. “No resident shall be
218 Attached as an Appendix to this Report is a Table identifying New York’s nursing homes, their bed
capacity, number of COVID-19 deaths among residents, not- or for-profit status and their CMS star
staffing rating.
219 M. Hill, Some NY nursing homes proved helpless in face of virus surge, ASSOC. PRESS (Mar. 20,
2021), https://apnews.com/article/us-news-new-york-coronavirus-pandemic-nursing-homes-
08cd2ed9c308d30f7de28b9f5ae7a83b; L Brody, T. McGinty, N.Y. Nursing Homes See Surge in COVID-
19 Deaths as Officials Hope Vaccinations Will Curb Spread, WALL STREET JOURNAL (Jan. 13, 2021),
https://www.wsj.com/articles/new-york-nursing-homes-see-surge-in-covid-19-deaths-as-officials-hope-
vaccinations-will-curb-spread-11610573476.
220 To a certain extent, nursing home representatives have argued that containing COVID-19 in nursing
homes was simply beyond their abilities. See NYS Health Facilities Association: 'Outbreaks of COVID-19
are not the result of inattentiveness or shortcomings in our facilities' (wnypapers.com).
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denied re-admission or admission to the NH solely based on a confirmed or suspected
diagnosis of COVID-19. NHs are prohibited from requiring a hospitalized resident who is
determined medically stable to be tested for COVID-19 prior to admission or
readmission.” (underlining in original). The Advisory drew almost immediate
criticism, 221 caused the Governor to lash out at nursing homes, spurred a congressional
inquiry, and, ultimately, an investigation of the Governor himself. What the directive did
not do, as is often claimed, is cause 15,000 deaths. The 15,000 number that has been
bandied about is the approximate total number of New York long-term care facility
residents who have succumbed to the virus. This figure includes nursing home
residents who passed away long after the directive had been rescinded. It includes
residents who were unaffected by the order.
This is not to say that the directive did not result in any additional deaths.
Although a determination of the number of additional nursing home deaths is beyond
the capacity of the Task Force, there are credible reviews that suggest that the
directive, for the approximately six weeks that it was in effect, did lead to some number
of additional deaths. The Department of Health issued a report in 2020 in which it
argued unconvincingly that the admission of 6,326 COVID-positive residents during the
period the Health directive was in effect had no impact. That cannot be the case, and
has now been shown not to be the case. 222 As we have seen, once the virus came into
221 See Associated Press, More Than 1,700 New, Unreported Deaths at Nursing Homes in NY, FOX5 N.Y.
(May 5, 2020), https://www.fox5ny.com/news/more-than-1700-new-unreported-deaths-at-nursing-homes-
in-ny; see also Luis Ferré-Sadurní & Amy Julia Harris, Does Cuomo Share Blame for 6,200 Virus Deaths
in N.Y. Nursing Homes?, N.Y. TIMES (July 8, 2020),
https://www.nytimes.com/2020/07/08/nyregion/nursing-homes-deaths-coronavirus.html.
222 The Empire Center, in its report dated February 18, 2021, specifically disputes the Department’s
contention, but agrees that the Department’s advisory was not the sole or primary cause of most nursing
home deaths. Bill Hammond & Ian Kingsbury, COVID-positive Admissions Were Correlated with Higher
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a nursing home, it was hard to control. The Department of Health’s report, however,
does correctly state that on March 25th the virus was already in many of metropolitan
New York’s nursing homes, and that the COVID-19 fuse had been lit.
That there were additional deaths does not mean the Department of Health
directive was issued in error. The emergency circumstances of March 25th must be
remembered. On March 25th, the State believed that it was in need of thousands more
hospital beds. ICUs were filling up. The hospital system appeared to be fully
overwhelmed and in danger of collapse. Difficult decisions were being made.
The State was also burdened with the insufficiencies of the federal response.
The federal response was hopelessly politicized. What can kindly be called mixed
messages and stops and starts were coming from the federal government. Then-
President Donald Trump repeatedly down-played the scope of the problem. 223
President Trump ordered, but ultimately retreated from firing a CDC official who, in late
February, had stated that a COVID-19 epidemic in the United States was inevitable. 224
There were federal policy failures. The federal government had been
unsuccessful in getting complete information from China about the virus. The federal
government failed to marshal sufficient supplies of PPE. PPE shortages caused the
Death Rates in New York Nursing Homes, EMPIRE CTR. FOR PUB. POL. (Feb. 18, 2021),
https://www.empirecenter.org/publications/covid-positive-admissions-higher-death-rates/.
223 D. Wolfe, D. Dale, “It’s Going to Disappear:” A Timeline of Trump’s Claims That COVID-19 Will
Vanish, CNN, Oct. 31, 2020, https://www.cnn.com/interactive/2020/10/politics/covid-disappearing-trump-

comment-tracker/.
224 Grace Panetta, Trump reportedly threatened to fire a top doctor at the CDC for sounding the alarm
about the coronavirus in February, BUSINESS INSIDER (Apr. 22, 2020),

https://www.businessinsider.com/trump-wanted-to-fire-cdc-doctor-for-raising-alarm-on-coronavirus-wsj-
2020-4.
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discouragement of mask-wearing. Finally, testing was almost completely unavailable.
By the end of March, testing was still limited to symptomatic individuals. 225
At least facially, nursing homes should have been able to meet the needs of
stable COVID-19 residents just as they are expected to be able to meet the needs of
other residents with communicable diseases. Nursing homes are required to maintain
an infection prevention and control program designed to provide a safe, sanitary, and
comfortable environment and to help prevent the development and transmission of
communicable diseases and infections. 226 Nursing homes also must be designed,
constructed, equipped, and maintained to protect the health and safety of residents,
personnel and the public. 227 Given the overwhelming dimensions of the epidemic – that
the virus is spread through the air, asymptomatic spread, and the vulnerability of the
elderly – expecting nursing homes to have been able to shield all their residents from
the virus was probably too much to ask. But at the time, seeing nursing home beds as
hospital extender beds when hospital beds were not expected to be available was not
an unreasonable decision.
What was unreasonable was the failure to recognize that nursing homes were
just as much in need of substantial help as general hospitals. Nursing homes were
given little help with securing PPE. In fact, in at least one press conference, Governor
225 C. Johnson, L.Sun, L. McGinley, In Hard-Hit Areas, Testing Restricted to Health Care Workers,
Hospital Patients, WASH. POST (Mar. 21, 2020),
https://www.washingtonpost.com/health/2020/03/21/coronavirus-testing-strategyshift/; see also R. Patel,
et al., Report from the American Society of Microbiology COVID-19 International Summit (Mar 23, 2020),
https://mbio.asm.org/content/11/2/e00722-20.
226 42 C.F.R. § 483.80; 10 N.Y.C.R.R. § 415.19.
227 42 C.F.R. § 483.90; 10 N.Y.C.R.R. § 415.29.
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Cuomo roundly criticized suggestions that nursing homes should have been aided. 228
Nursing homes also could have used assistance in putting together infection control
sufficient to meet the virus, if that were even possible in late March 2020.
Also unreasonable was the absoluteness of the directive. Under the applicable
regulations, a nursing home is to accept only individuals the nursing home is able to
care for properly. 229 That, in essence, is the promise every nursing home makes to
residents and their families – we admit you because we can properly care for you. The
directive did not explicitly override the regulation, but it was commonly read as though it
did. The directive came at a time when regulations were routinely being overridden.
Providers were told to follow the Department of Health’s instructions. The language of
the directive was absolute: “No resident shall be denied admission . . . .” The language
should be compared with a similar directive that was issued to adult care facilities two
weeks later. That directive told adult care facilities that they could not deny admission
to COVID-positive individuals, but expressly restated the exception for those individuals
for whom the facility could not provide appropriate care. 230 The March 25th directive
placed nursing homes on the wrong footing.
Finally, it was unreasonable to leave the directive in place for so long after it was
necessary. Hospitalizations peaked on April 14th. 231. The hospital beds at the Javits
Center were barely used, and the USNS Comfort sat empty in the Hudson River. The
228 Bernadette Hogan and Bruce Golding, Nursing homes have ‘no right’ to reject coronavirus patients,
Cuomo says, N.Y. POST (Apr. 23, 2020), https://nypost.com/2020/04/23/nursing-homes-cant-reject-
coronavirus-patients-cuomo-says/.
229 10 N.Y.C.R.R. § 415.1.
230 See 18 N.Y.C.R.R. § 487.5(a)(3)(xii).
231 Tracking Coronavirus in New York: Latest Map and Case Count, N.Y. TIMES,
https://www.nytimes.com/interactive/2021/us/new-york-covid-cases.html (accessed Apr. 28, 2020).
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Comfort set sail from New York City on April 23rd. The March 25th directive could have
been rescinded on or about the date the Comfort set sail, if not sooner.
VI. Impact of COVID-19 in Other Long-Term Care Settings
A. Adult Care Facilities
1. Regulatory Structure
Adult homes and enriched housing programs are residential facilities designed to
meet the needs of persons with physical or mental impairments who do not require the
higher level of care associated with nursing homes. 232 Adult homes and enriched
housing programs are sometimes referred to collectively as adult care facilities, or
ACFs. An assisted living program (ALP) is an adult home or enriched housing program
with an associated licensed home care services agency (LHCSA) that can provide
nursing and other ancillary health care services. 233 Adult homes or enriched housing
programs may be licensed as assisted living residences (ALRs), with or without
enhanced or special needs certification.
The Department of Health licenses and governs adult care facilities under a
detailed regulatory scheme that covers all aspects of their operations, from food
service 234 and medication distribution 235 to resident recreational activities. 236 The
standards for adult homes and enriched housing programs are found in 18 N.Y.C.R.R.
232 N.Y. Soc. Servs. Law § 2(21)–2(28).

233 See 18 N.Y.C.R.R. § 494.5.
234 See 18 N.Y.C.R.R. §§ 487.8, 488.8.
235 See 18 N.Y.C.R.R. §§ 487.7(f), 488.7(d).
236 See 18 N.Y.C.R.R. § 487.7(h) (requiring a diversified program of at least 10 hours per week of cultural,
spiritual, diversional, physical, political, social and intellectual activities, including all of the following: (i)
individual, small group and large group activities; (ii) facility-based and community activities; (iii) physical
exercise or other physical activities; (iv) intellectual activities; (v) social interaction; and (vi) opportunities
for both active and passive resident involvement, offered during evenings and weekends as well as
during the weekday); see also 18 N.Y.C.R.R. § 488.7(f).
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Parts 487 and 488. These standards, among other things, include detailed admission
standards, including that ACFs may not admit anyone with a medical condition which
requires continual skilled observation 237 or who suffers from a communicable
disease. 238
The Department’s regulations also protect the rights of residents, including,
among others, their absolute right to leave and return to the facility at any reasonable
time, 239 and their right to invite guests into the facility without restriction, 240 and the right
not to be restrained or locked in a room at any time. 241 Residents also must be
encouraged to collectively organize. 242
Admission standards for assisted living programs allow for the admission of
persons who need more care and services than in an adult home, but still prohibit the
admission of anyone who requires continual nursing or medical care, or whose medical
impairment endangers the safety of other residents. 243
The Department enforces these regulations through on-site inspections. 244 Any
regulatory violations can result in fines and the potential of license revocation. 245 The
Department’s inspectors protect resident rights.
Significantly, adult homes and enriched housing programs are residential, not
medical or nursing facilities. They do not provide medical or nursing care directly.
Rather, all medical and nursing care, including both routine appointments and treatment
237 18 N.Y.C.R.R. §§ 487.4(c)(6), 488.4(c)(6).

238 18 N.Y.C.R.R. §§ 487.4(c)(12), 488.4(c)(12).
239 18 N.Y.CR.R. § 487.5(a)(3)(xii)
240 18 N.Y.C.R.R. § 485.14(b)(1).
241 18 N.Y.C.R.R. § 487.5(a)(3)(x).
242 18 N.Y.C.R.R. § 487.5(b).
243 See 18 N.Y.C.R.R. Part 494.
244 See 18 N.Y.C.R.R § 486.2.
245 See 18 N.Y.C.R.R. § 486.4.
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for acute conditions, is performed by outside providers, either through on-site
appointments or at a hospital or other outside medical facility. As this regulatory
structure implies, the residents are typically healthier and more independent than
nursing home residents.
Prior to the coronavirus pandemic, ACFs had no history of dealing with infection
control and were in fact prohibited from admitting or retaining residents with
communicable diseases. 18 N.Y.C.R.R. §§ 487.4(c)(12), 488.4(c)(12). The only PPE
requirement applied during flu season; licensed home care personnel without a current
flu shot were required to wear masks when treating residents. 246 ACFs were not
required to maintain any inventory of PPE, and at the start of the pandemic, most had
only a very small number of masks on hand.
2. The Coronavirus Pandemic and the Experience of Adult Care

Facilities 247
Because adult care facilities are confined spaces with numerous persons living
and working in close proximity, including many who are particularly vulnerable due to
age or medical condition, when the coronavirus pandemic emerged as a significant
threat, preventing the introduction of the virus into adult care facilities should have been
a top priority. The existing regulatory structure governing ACFs created obstacles to
limiting two potential routes by which the coronavirus might enter the facilities: visitors
and staff carrying the virus into the facilities and residents themselves bringing the virus
into the facilities after becoming infected outside.
See 10 N.Y.C.R.R. § 2.59.

246
The narrative is based on the Executive Orders, Dear Administrator Letters, and other written
247
communications with adult care facilities, as well as interviews with the operators of adult care facilities
about their experience, particularly during the early months of the pandemic.
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When adult care facilities, in response to the virus’ threat, sought to restrict or
temporarily bar visitors from their facilities, the State’s initial response was to leave
existing regulations in place, including the residents’ right to entertain visitors. 18
N.Y.C.R.R. § 485.14(b)(1). In a March 11, 2020 Dear Administrator Letter, the
Department of Health instructed adult care facilities to screen all visitors for symptoms
of COVID-19. Although the memorandum suggested that adult care facilities should
consider modifying visiting hours, it implicitly discouraged such modifications by
advising that any limitations on visiting hours would need to be immediately reported to
the Department. 248 Two days later, in a Health Advisory issued on March 13, 2020, 249
the Department abruptly reversed course, effectively barring all visitors from the
facilities. This was one day after visitors were barred from nursing homes.
Although visitors were barred and then heavily restricted, 250 throughout the
entirety of the pandemic, residents have remained free to leave the facilities at will.
Once residents leave the building, the facility has no ability to control where they go or
with whom they come into contact. Although the Department advised adult care facilities
to discourage residents from going outside, 251 facilities remained legally obligated to
248 N.Y. ST. DEP’T OF HEALTH, DEAR ADMINISTRATOR LETTER 20-10 (Mar 11, 2020),
https://coronavirus.health.ny.gov/system/files/documents/2020/03/adult_care_guidance.pdf [hereinafter
DAL 20-10].
249 N.Y. ST. DEP’T OF HEALTH BUREAU OF HEALTHCARE ASSOCIATED INFECTIONS (“BHAI”), HEALTH ADVISORY
TO NURSING HOMES AND ADULT CARE FACILITIES (Mar. 13, 2020),

https://coronavirus.health.ny.gov/system/files/documents/2020/07/revised-march-13-guidance-
07.10.2020-final.pdf.
250 See N.Y. ST. DEP’T OF HEALTH, Health Advisory: Visitation in Adult Care Facilities (Sept. 9, 2020),
https://coronavirus.health.ny.gov/system/files/documents/2020/09/health-advisory_adult-care-facilities-
visitation-9-9-2020.pdf; see also N.Y. ST. DEP’T OF HEALTH, Health Advisory: Revised Adult Care Facilities
Visitation (Mar. 25, 2021),
https://coronavirus.health.ny.gov/system/files/documents/2021/03/updated_adult_care_facility_visitation.p
df.
251 See DAL 20-10, supra note 248.
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allow residents to come and go as they please. 252 Even during the height of the
lockdown in New York City, adult homes had no ability to limit residents’ right to leave
the facilities at will. This is in contrast to nursing home residents, who have been
prohibited from leaving their facilities.
By late March 2020, adult care facility operators had become concerned that they
were being asked to readmit residents who had been hospitalized for COVID despite
the fact that these individuals may still have been COVID positive and presumably
highly contagious. Adult care facilities informed the Department of these concerns and
noted that they had no practical ability to quarantine residents effectively. This occurred
during a time when adult care facilities were still suffering from serious PPE shortages
and were being advised to conserve and reuse PPE. 253 As it had done with nursing
homes, the Department informed the adult homes that they were prohibited from
refusing readmission on the basis of a COVID infection. This was confirmed in an
Advisory to adult care facilities on April 7, 2020, which not only stated that adult homes
could not refuse readmission on the basis of COVID, but also expressly prohibited adult
homes from requiring a COVID test of any returning resident. 254 Unlike the nursing
home advisory, the advisory to adult care facilities did advise adult care facilities that
they were not to accept residents for whom they could not provide appropriate care.
252 18 N.Y.C.R.R. § 487.5(a)(3)(xii).

253 N.Y. ST. DEP’T OF HEALTH BHAI, Health Advisory: Options when Personal Protective Equipment (PPE)
is in Short Supply or Not Available (Apr. 2, 2020),
https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh_covid19-
_ppeshortages_040220.pdf [hereinafter PPE SHORT SUPPLY]..
254 N.Y. ST. DEP’T OF HEALTH, Advisory: Hospital Discharges and Admissions to ACFs (Apr. 7, 2020),
https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh_covid19_acfreturnofpositivereside
nts_040720.pdf.
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Even with that proviso, the advisory stymied efforts adult care facilities were making
through screening and entry restrictions to keep the coronavirus out of their facilities.
As noted above, ACFs had no experience with infection control and lacked the
appropriate equipment and personnel to contain contagious disease. Until the April 7th
advisory, ACFs had been prohibited by regulation from admitting or retaining any
person who “suffers from a communicable disease or health condition which constitutes
a danger to other residents and staff.” 255 Although this regulation exists for the express
purpose of protecting adult home residents from communicable disease, the
Department chose to interpret the regulation to apply only to symptomatic individuals, 256
contrary to CDC guidance about the transmission of the novel coronavirus. 257
This mandate to readmit COVID-positive residents and prohibition on testing
remained in place until the Governor issued Executive Order 202.30 on May 10, 2020.
This order prohibited hospitals from discharging a patient to a nursing home unless that
patient first tested negative for COVID and the nursing home certified that it was
capable of properly caring for that individual. Although the Executive Order applied only
to nursing homes, the Department applied an identical standard to adult care
facilities. 258
In a sharp change of course from the earlier directive to admit COVID-19 positive
residents, in response to concerns that residents of adult care facilities might carry the
255 18 N.Y.C.R.R. §§ 487.4(c)(12), 488.4(c)(12).

256 See Appendix E; see also, supra note 254, April 7, 2020 Advisory.
257 Discontinuation of Transmission-Based Precautions and Disposition of Patients with SARS-CoV-2
Infection in Healthcare Settings, CDC (Feb. 16, 2021), https://www.cdc.gov/coronavirus/2019-

ncov/hcp/disposition-hospitalized-patients.html.
258 See N.Y. ST. DEP’T OF HEALTH, DEAR ADMINISTRATOR LETTER 20-14 (May 11, 2020),
https://www.health.ny.gov/professionals/hospital_administrator/letters/2020/docs/dal_20-
14_covid_required_testing.pdf [hereinafter DAL 20-14].
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coronavirus into the facilities after spending holidays with family members outside, the
Governor imposed a requirement by Executive Order in early May 2020 that any
resident who leaves his/her facility must be quarantined for 14 days. 259 Although many
nursing homes responded to this requirement by restricting or eliminating passes for
residents to leave the premises, adult care facilities, which have no legal authority to
prevent residents from leaving at will, were left with a mandate instructing them to
quarantine every resident who set foot outside the facility, but without legal means to
effectuate quarantine, other than to report violators. 260
Early in the pandemic, the Department did not answer requests from adult care
facilities for assistance in procuring PPE. Adult care facilities were first instructed to
obtain PPE through their normal sourcing process. This presented two problems. First,
non-ALP facilities, which do not provide on-site nursing services, did not have any
established sourcing for medical products. Second, there were nationwide PPE
shortages.
The Department instructed adult care facilities that, should they be unable to
obtain PPE on their own, they should inform the local Office of Emergency Management
of their PPE needs. 261 This instruction, however, did little or nothing to alleviate the
problem. The New York City Office of Emergency Management, for example, expressly
informed adult homes that they were not considered high priority facilities, and therefore
259 See N.Y. Exec. Order 202.77 (Nov. 23, 2020); N.Y. ST. DEP’T OF HEALTH, Health Advisory: Universal
Use of Eye Protection (Nov. 24, 2020),
https://coronavirus.health.ny.gov/system/files/documents/2020/11/hcp_eye_protection_guidance_112520.
pdf.
260 See 18 N.Y.C.R.R. § 487.5(a)(3)(x) (“A resident shall not be restrained nor locked in a room at any
time.”).
261 N.Y. ST. DEP’T OF HEALTH, Guidance Regarding ACF Operations during COVID-19 Outbreak (Mar. 22,
2020) [hereinafter ACF OPERATIONS].
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would not be provided with any PPE. In early April 2020, the Department provided
facilities with guidance on calculating future PPE needs. 262 At the time the calculation
was an academic exercise due to the severe, ongoing nationwide PPE shortages.
It was not until mid-April 2020 that the Department began to provide PPE to adult
care facilities. Only in May 2020, when PPE began to be provided to adult care facilities
along with regular COVID tests, did the severe shortages begin to be alleviated.
The Department also displayed inflexibility with respect to other preexisting
regulatory requirements. For example, the Department required facilities to maintain a
full resident activity calendar, 263 even as the Department was instructing adult care
facilities to advise their residents to stay in their rooms. This did not change throughout
the course of the pandemic. 264
Adult care facilities were required to report to the Department of Health on the
COVID status of all of their residents. Executive Order 202.18, issued on April 16,
2020, also required adult care facilities to “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.” Executive Order 202.19,
issued the following day, imposed a $2,000 per day fine for noncompliance with this
reporting requirement. These Orders were of limited effectiveness due to delays in the
reporting of results. 265
262 PPE SHORT SUPPLY, supra note 253.

263 See 18 N.Y.C.R.R. § 487.7(h).
264 See ACF OPERATIONS, supra note 261.
265 See N.Y. ST. DEP’T OF HEALTH, DEAR ADMINISTRATOR LETTER C20-01 (Apr. 19 2020),
https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh-_covid_acf-
nh_communicationpractices_041920.pdf.
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Just as it had with nursing homes, as the order regarding the admission of
COVID-positive individuals drew public scrutiny, the Governor issued orders that
seemed to be intended to shift attention from the admission orders to the performance
of long-term care facilities. Executive Order 202.23, issued on April 24, 2020,
authorized the Commissioner of Health to suspend or revoke the operating certificate of
any nursing home or adult care facility on 24 hours’ notice “if it is determined that such
facility has not adhered to any regulations or directives issued by the Commissioner of
Health.” This was followed by a May 11, 2020 Dear Administrator Letter requiring the
operator or administrator of each facility to certify, subject to criminal penalties, that the
facility was in compliance with all applicable Executive Orders and directives of the
Commissioner of Health. 266
The new mandates on adult care facilities, including the regular testing of
employees and residents, increased staffing needs due to in-room meal and medication
delivery, and PPE requirements, but were not accompanied by increased financial
support. Executive Order 202.30, issued on May 10, 2020, required adult care facilities
to arrange for all personnel to be tested for COVID-19 twice per week. 267 These tests
alone imposed thousands of dollars per week in unreimbursed costs on adult homes.
Many states publicly report COVID-19 surveillance data across various types of
facilities. An article available on the CMS website relied on data systematically
retrieved from health department websites to characterize COVID-19 cases and deaths
266 See DAL 20-14, supra note 258.

267 See id.; see also N.Y. Exec. Order 202.40 (June 10, 2020) (reducing testing to once weekly).
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in and among assisted living residents and residents and staff members. 268 Limited
data was available for 39 states. By October 15, 2020, among 28,623 assisted living
facilities in those 39 states, 6,440 (22%) had at least one COVID-19 case among
residents or staff members. Among the states with available data, the proportion of
COVID-19 cases that were fatal was 21.2% for residents, 0.3% for staff members, and
2.5% overall for the general population of these states. 269 As of October 15, 2020, an
average of one death occurred among every five assisted living residents with COVID-
19, compared with one death among every 40 persons in the general population with
COVID-19 in states with available data. The disproportionate share of deaths among
assisted living facility residents underscores the need for ongoing surveillance of
nationwide COVID-19 data and more robust infection prevention and control activities to
protect this population, according to the authors of the study.
The Department of Health, reports that, as of May 3, 2021, 989 residents of adult
care facilities had died from COVID-19. 270 Those numbers reflect the typically lower
age and better health of adult care facility residents vis-à-vis nursing home residents.
The authors of the recent study mentioned above concluded that to prevent the
introduction and spread of virus that causes COVID-19, assisted living facilities should:
(1) identify a point of contact at the local health department; (2) educate residents,
families, and staff members about COVID-19; (3) have a plan for visitor and staff
member restrictions; (4) encourage social (physical) distancing and the use of masks,
268 See Sarah Yi et al., Characterization of COVID-19 in Assisted Living Facilities — 39 States, October
2020, 69 MORBIDITY & MORTALITY WKLY. REP. 1730 (2020),

https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6946a3-H.pdf.
269 Id.
270 Other Adult Care Facility COVID Related Deaths Statewide, N.Y. ST. DEP’T OF HEALTH,
https://www.health.ny.gov/statistics/diseases/covid-19/fatalities_other_acf.pdf (last visited May 4, 2021).
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as appropriate; (5) implement recommended infection prevention; (6) rapidly identify
and properly respond to residents and staff members with suspected or confirmed
COVID-19; and (7) conduct surveillance of COVID-19 cases and deaths, facility staffing,
and supply information.
B. Home Care
Home care has enabled many individuals who are otherwise eligible for nursing
home services to remain in their homes. 271 More New Yorkers receive home care than
reside in nursing homes. According to a report published by the Home Care Association
of New York State, approximately 500,000 New Yorkers were receiving home care in
2019. 272 The greatest limiting factor to receive home care is not eligibility, but workforce
availability. Personal care aides are in such short supply that home care agencies
frequently turn away prospective patients because they lack the aides to serve them. 273
These workforce challenges preceded the pandemic.
Home care takes many forms. It is delivered through Certified Home Health
Agencies and Licensed Home Care Services Agencies, both licensed under Article 36
of the Public Health Law, 274 and under the Consumer Directed Personal Assistance
Program organized under the Social Services Law. 275 The Office for People with
271 See Joanne Lynn, The Challenges of Caring for the Growing Elderly Population, 41 BIFOCAL 225,
228, (2020).
272 State of the Industry 2019, HOME CARE ASS’N OF N.Y. ST. (Feb. 2019), https://hca-nys.org/wp-
content/uploads/2019/02/HCA-Financial-Condition-Report-2019.pdf [hereinafter Home Care Report].

273 Id.
274 See Pub. Health Law §§ 3605, 3606.
275 The Consumer Directed Personal Assistance Program (“CDPAP”) has been less affected by staffing
issues than other types of home care. Unlike other forms of home care, individuals receiving CDPAP
services may hire most family members as personal assistants. See Social Services Law § 365-f(3).
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Developmental Disabilities also has a small but growing program of home care called
Consumer Self-Direction. 276 Home care is authorized under federal Medicaid rules
under the Medicaid home and community-based (“HCBS”) waiver.
Home care may be paid for by individuals out-of-pocket, through health
insurance, and under Medicare and Medicaid. 277 Medicare, as in a nursing home, pays
for a limited amount of home care. 278 Medicaid, as in a nursing home, will pay for a
temporally extended period of home care, which is commonly regarded as custodial
care. 279
Home care is popular. As the name implies, individuals receiving home care
receive care in their homes. 280 Although some recipients of home care eventually are
admitted to nursing homes, many are not. Conversely, some nursing home residents,
usually rehabilitation patients, receive home care after their nursing home stay.
The COVID-19 pandemic affected home care in ways similar to nursing homes,
and differently. Especially in the devastating first months of the pandemic in New York
City, home care was disrupted. Many individuals receiving home care declined
services, at least for a time, in order to minimize their risk of infection. Others were
unable to receive services because home care workers, either due to their own illness
or the illness of a family member, kept them away from work. And others, just as in
276 Self-Direction Guidance for Providers, N.Y. OFF. FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
(“OPWDD”) (Apr. 6, 2020),
https://opwdd.ny.gov/system/files/documents/2020/04/sd_guidance_040620.pdf.
277 According to the Home Care Association report, 87% of home care in New York is paid for under the
State Medicaid program. Home Care Report, supra note 272.

278 Home Health Services Coverage, Medicare.gov, https://www.medicare.gov/coverage/home-health-
services.
279 See, e.g., 18 N.Y.C.R.R. §§ 505.14, 505.28,
280 Individuals in adult care facilities may receive home care. Individuals in nursing homes may not, nor
may individuals residing in OPWDD-operated or certified residences.
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nursing homes, stopped working out of fear that they would become ill themselves or
bring the illness to their families.
In terms of State assistance, home health care was treated as a lower priority
than hospitals or nursing homes for the receipt of PPE. Within home care, the
Consumer Directed Personal Assistance Program came behind Certified Home Health
Agencies and Licensed Home Care Services Agencies. All were left to fend for
themselves in finding gloves, masks, shields and gowns in the opening months of the
pandemic. 281
COVID-19 deaths and illnesses among home care patients have not been
separately reported. What we do know, though, is that without the concentration of
individuals, home care was not the vector for contagion that institutionalized care was.
A positive home care worker or home care patient simply was not exposed to or could
expose the number of individuals who would be present in institutionalized care. 282
According to a recent study completed in Connecticut, people receiving
community-based long-term care had better COVID-19 outcomes than residents of
skilled nursing facilities. 283 As noted by the authors of the study (which compared data
acquired from March to July in 2020), home care recipients have comparable medical
281 The pandemic exacerbated fears among CDPAP participants that they were at risk of being
institutionalized, they faced challenges obtaining PPE, and there was a dramatic impact on the ability of
recipients to staff their services. See The Impact of COVID-19 on Consumer Direction in New York State,
CONSUMER DIRECTED PERSONAL ASSISTANCE ASS’N OF N.Y. ST., http://cdpaanys.org/wp-
content/uploads/2020/06/CDPAANYS-COVID-19-Impact-Survey.pdf (last visited Apr. 28, 2021).
282 Although not much has yet been published about the impact of COVID-19 on those receiving home
care, there is at least one peer reviewed study published on the impact of COVID-19 on the home care
work force. See Madeline Sterling et al., Experiences of Home Health Care Workers in New York City
during the Coronavirus Disease 2019 Pandemic, 180 JAMA INTERNAL MEDICINE 1453 (2020),
https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2769096.
283 Julie Robinson et al., Community-Based Long-Term Care has Lower COVID-19 Rates and Improved
Outcomes Compared to Residential Settings, 22 JAMDA 256 (2020),

https://www.jamda.com/action/showPdf?pii=S1525-8610%2820%2931050-1.
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vulnerability to nursing home residents and perhaps more than some assisted living
residents. Nevertheless, their COVID-19 positivity rate during the first five months of the
pandemic in Connecticut was considerably lower than residents of either congregate
setting. 284
From the other side, according to a report by the Visiting Nurse Society of New
York, only 11% of hospitalized COVID-19 patients were discharged to home care. 285
That may have been a lost opportunity as the outcomes for those discharged patients
were generally positive. 286
COVID-19 has also significantly impacted those people with developmental
disabilities living independently or with family care givers. Although no studies are
available, factors that have been cited anecdotally by advocates include illness and
death from exposure to the virus; difficult or nonexistent access to services; closed day
programs and job sites; ill-equipped families responsible for more daily care and
supervision; and the withholding of funds in anticipation of budget cuts.
The CDC has a webpage devoted to COVID as it relates to disability. The
agency identifies the following three groups at greatest risk of infection: people who
have limited mobility or who cannot avoid coming into close contact with others who
may be infected, such as direct support providers and family members; people who
have trouble understanding information or practicing preventive measures, such as
284 Id.
285 See Robert Holly, COVID-19 Patients Discharged from Home Health Care Often Have ‘Excellent’
Symptom Improvement, Functional Outcomes, HOME HEALTH CARE NEWS (Nov. 23, 2020),
https://homehealthcarenews.com/2020/11/covid-19-patients-discharged-from-home-health-care-often-
have-excellent-symptom-improvement-functional-outcomes/; see also Kahryn Bowles et al., Surviving
COVID-19 After Hospital Discharge: Symptom, Functional, and Adverse Outcomes of Home Health
Recipients, 174 ANNALS OF INTERNAL MEDICINE 316 (2021), https://www.acpjournals.org/doi/10.7326/M20-
5206.
286 Id.
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hand washing and social distancing; and people who may not be able to communicate
symptoms of illness. 287
a. Special Considerations for Palliative Care
Hospice and palliative care have much in common. Both are for people with
serious illnesses. Both follow treatment goals that aim to relieve pain, increase comfort,
and improve quality of life for patients and their families. Both are sensitive to a patient’s
personal, cultural and religious values, beliefs, practices, and preferences. Palliative
care and hospice, however, are offered to different types of patients. Palliative care
relieves pain from serious illness and alleviates the side effects of treatments. Palliative
care physicians and nurses work with patients to identify their goals, including symptom
relief, counseling, spiritual comfort, or whatever a patient believes will enhance their
quality of life. Compared to palliative care, the primary difference in hospice care is that
hospice is for patients with a limited lifespan. Hospice care is a type of palliative care –
given to address the unique needs of people with a terminal illness and their families.
Surges in demand for healthcare, including end-of-life care, during the pandemic
have exposed and exacerbated underlying gaps in access to specialty-trained
physicians and teams, palliative care medications, and bereavement support for
patients and families. These gaps jeopardize the quality of care for seriously ill and at-
risk patients, including those whose prognosis is uncertain and those with diseases
other than COVID-19. 288 The pandemic reduced patients’ contact with their families,
287 People with Disabilities, CDC (Mar. 16, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/people-with-disabilities.html (last visited Apr. 28, 2021).
288 Moira McCarthy, No Hugs: How the COVID-19 Pandemic Has Impacted Palliative, Hospice Care,
HEALTHLINE (Oct. 1, 2020), https://www.healthline.com/health-news/no-hugs-how-the-covid-19-pandemic-

has-impacted-palliative-hospice-care.
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directly or by phone, increasing the need for care that goes beyond symptom relief.
Family is also important to setting care goals, encouraging their loved ones, and
providing support to care staff. Also, studies show that Medicaid enrollees, an important
patient population, underutilize hospice leading to unnecessary suffering at the end of
life. Patients who die in inpatient settings have greater distress and poorer quality of life
than those who die at home, and their bereaved caregivers have worse mental health
throughout their loved ones’ dying process. Hospice use, particularly in-home, is
associated with better symptom control and quality of life near death. 289
C. Office for Mental Health–Operated and Licensed Facilities
The Office for Mental Health (OMH) provides individuals with mental illness
supports and services in a wide range of contexts, both in facilities and the community.
The public mental health system in New York State is vast and estimated to reach over
775,000 people. 290 Males and females are served at approximately the same rate
(39.0–39.1 per 1,000 males/females in the population). The highest annualized service
utilization by age falls within the 25-4 age group (42.3 per 1,000). For people over the
age of 65, service utilization is 19.6 per 1,000. 291 Service utilization rates by race and
289 See Jean Abbott, et al., Ensuring Adequate Palliative and Hospice Care During COVID-19 Surges,
324 JAMA 1393 (2020),
https://jamanetwork.com/journals/jama/fullarticle/2771025?guestAccessKey=dca5fc8d-1f4e-49d3-8e36-
92e7413c1857; see also Jennifer W. Mack, et al., Underuse of Hospice Care by Medicaid-Insured
Patients With Stage IV Lung Cancer in New York and California, 31 J. OF CLINICAL ONCOLOGY 2569
(2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3699723/; Gail Gazelle, Understanding Hospice-
An Underutilized Option for Life’s Final Chapter, 357 NEW ENGLAND J. OF MEDICINE 321 (2007),
https://www.nejm.org/doi/full/10.1056/NEJMp078067.
290 The demographic characteristics of people served in the public mental health system is from data
derived from the OMH Patient Characteristics Survey (PCS). The survey encompasses people who
receive services from programs the agency operates, funds or licenses. Data is captured during a one-
week period on a biennial basis. To annualize the data, OMH employs an algorithm developed at the
Nathan Kline Institute.
291 Id. By race and ethnicity, African Americans have the highest annualized service utilization (52.8 per
1,000) as compared to other racial and ethnic groups.
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ethnicity show the highest annual service utilization rates among Black/African
Americans (52.8 per 1,000), Pacific Islanders (51.6), Hispanic/Latino (47.8), and Multi-
Racial (36.0), as compared to lower utilization rates for Whites (29.5), Native
American/Alaskan (22.2), and Asians (9.1). 292
As a provider of service, OMH operates 24 inpatient facilities for civil, forensic
and research purposes. 293 There are approximately 3,000 adult and children's beds in
the OMH system and 700 forensic beds for people referred for admission from the
criminal justice system. 294 In addition, OMH licenses over 100 acute care psychiatric
units in general hospitals that have an aggregate capacity of 5,000 beds. 295 In 2019,
there were 120,830 admissions to hospitals licensed or operated by OMH. 296 Under the
model of care developed by OMH, acute inpatient admissions are directed to the article
28 hospitals with psychiatric units. Longer term care is delivered by OMH state
hospitals. Lengths of stay in OMH hospitals can be years in duration, particularly when
a patient is referred from the criminal justice system. 297 Overall, OMH reports that nearly
292 OMH states that its rate of service utilization data by race and ethnicity should be read with caution
because of the small size of some racial groups in the general population and fluctuation in the analyses
of past PCS data.
293 N.Y. Mental Hyg. Law § 7.15; Statewide Comprehensive Plan, at 10,
https://omh.ny.gov/omhweb/planning/docs/507-plan.pdf.
294 Statewide Comprehensive Planat 10.
295 Id. at 12.
296 As reported to the Mental Hygiene Legal Service (“MHLS”). MHLS is an auxiliary agency of the
Appellate Divisions of State Supreme Court that provides legal services and assistance to patients and
residents of mental hygiene facilities pursuant to article 47 of the Mental Hygiene Law. See N.Y. Mental
Hyg. Law § 9.11.
297 See N.Y. Crim. Pro. Law (“CPL”) art. 730; N.Y. CPL § 330.20. An article that analyzes length of stay
for individuals found not responsible by reason of mental disease or defect is found at: Richard Mirgalia &
Donna Hall, The Effect of Length of Hospitalization on Re-arrest among Insanity Plea Acquittees, 39 J.
AM. ACAD. PSYCHIATRY & LAW 524 (2011).
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half of the patients on its inpatient census have been hospitalized for over one year and
a large percentage for more than several years. 298
As its inpatient census ages, OMH, effective April 1, 2016, instituted a SNF
project designed to expand and intensify OMH’s ongoing efforts to refer and place long
stay patients in skilled nursing facilities. 299
There are also over 600 residential programs in the community serving 40,000
people with mental illness in New York State. 300 Included in this category of service
are supported housing beds (46% of the total) and community residences (14% of the
total). 301 A community residence is defined as: “any facility operated by or subject to
licensure by the office of mental health [or the office for people with developmental
disabilities] which provides a supervised residence or residential respite services for
individuals with mental disabilities and a homelike environment and room, board and
responsible supervision for the habilitation or rehabilitation of individuals with mental
disabilities as part of an overall service delivery system.”302
OMH also serves people with forensic involvement and renders long-term care in
institutional and secure facilities. People served include those committed to hospitals
under article 730 and section 330.20 of the Criminal Procedure Law. In addition, OMH
operates a hospital for sentence serving inmates at the Central New York Psychiatric
Center. Admission to this facility is pursuant to Correction Law § 402. OMH and the
Department of Corrections and Community Supervision also jointly operate and serve
298 Statewide Comprehensive Planat 49.

299 Statewide Comprehensive Plan at 54.
300 Statewide Comprehensive Plan at13.
301 The remaining beds are classified as Apartment/Treatment; Community Residence/Single Room
Occupancy; Supported Single Room Occupancy. Statewide Comprehensive Plan at 13.

302 N.Y. Mental Hyg. Law § 1.03(28).
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approximately 10,000 people serving sentences in 29 satellite mental health units
located within prisons. 303
In addition, OMH houses people convicted of sex offenses who are judicially
adjudicated as having a “mental abnormality” and committed pursuant to article 10 of
the MHL. 304 The commitment authorized by Article 10 is indefinite, so people committed
could potentially remain in these facilities for the balance of their lives, subject to
periodic judicial review. 305
Facilities operated or licensed by OMH are subject to extensive oversight and
regulation. As a foundational principle, the New York State Constitution provides: “The
care and treatment of persons suffering from mental disorder or defect and the
protection of the mental health of the inhabitants of the state may be provided by state
and local authorities and in such manner as the legislature may from time to time
determine.” 306
Significantly, OMH has the responsibility for seeing that mentally ill persons are
provided with care and treatment, that such care, treatment, and rehabilitation is of high
303 Li-Wen Lee, Forensic Mental Health Services, N.Y. ST. OFF. OF MENTAL HEALTH,
https://omh.ny.gov/omhweb/forensic (last visited Apr. 29, 2021).
304 The statutory predicate for these programs is found at Mental Hygiene Law § 7.18. The law provides:
(a) ”There shall be in the office secure treatment facilities, as defined in subdivision (o) of section 10.03 of
this title, as designated by the commissioner for the care and treatment of dangerous sex offenders
requiring confinement, as described in article ten of this title.” Such secure treatment facilities may be
created on the former grounds of hospitals operated by OMH, but shall be considered separate and
distinct facilities and shall not be considered or defined as hospitals.
305 N.Y. Mental Hyg. Law § 10.09. The media reported on COVID-19 outbreaks on at the Central New
York Psychiatric Center SOTP in April of 2020. Rick Karlin, Residents, Guards Say Marcy Psychiatric
Center is Coronavirus Hothouse, ALB. TIMES UNION (Apr. 14, 2020),
https://www.timesunion.com/news/article/Residents-guards-say-Marcy-psychiatric-center-is-
15200056.php.
306 N.Y. Const., Art 17, § 4.
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quality and effectiveness, and that the personal and civil rights of persons receiving
care, treatment, and rehabilitation are adequately protected. 307
OMH regulations are found at title 14 of the New York Code of Rules and
Regulations. OMH regulations cover the spectrum of services rendered by the agency
and its oversight activities. Regulations that govern residential services are found in the
following parts: Part 580 – Operation of Psychiatric Inpatient Units of General
Hospitals; Part 582 – Operation of Hospitals for Persons with Mental Illness; and Part
595 – Operation of Residential Programs for Adults. As a general rule and across
service settings, OMH regulations governing residential services provide for a
description of the program mission, the population to be served; admission and
discharge criteria; a description of the specific service needs of the defined target
population; a description of the goals and anticipated outcomes of the program,
including the anticipated average length of stay for residents, resident rights,
governance, and quality assurance.
Prior to the COVID-19 public health crisis, OMH also had in place regulations
governing the use of telemental health. Originally adopted in 2016, the regulations are
found at part 596 and define telemental health as “the use of two-way real-time
interactive audio and video equipment to provide and support mental health services at
a distance.”308
The rights of people receiving services from the facilities licensed or operated by
OMH, OPWDD and OASAS are protected by statutes and regulations. Article 33 of the
MHL is entitled “rights of patients” and each agency under the Department of Mental
307 N.Y. Mental Hyg. Law § 7.07(c).

308 14 N.Y.C.R.R. § 596.1(a).
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Hygiene has implementing regulations. OMH’s regulations provide each person
residing in a hospital or community-based residential program has the following rights,
among others, to:
• a safe and sanitary environment;
• freedom from abuse and mistreatment by employees or other

residents of the facility;
• receive visitors at reasonable times, to authorize those family

members and other adults who will be given priority to visit, to have
privacy when visited, and to communicate freely with persons within
or outside the facility;
• appropriate medical and dental care for residents of hospitals;
• an individualized plan of treatment or services and to participate in

the development of that plan including the opportunity for a person,
16 years of age or older, to request a significant individual to
himself or herself, including any relative, close friend or individual
otherwise concerned with such person’s welfare, to participate in
the development of such plan; and
• bring any questions or complaints, including complaints regarding

any orders limiting such persons’ rights, to the facility director, the
Mental Hygiene Legal Service, the board of visitors if applicable,
and the Commission on Quality of Care and Advocacy for Persons
with Disabilities. 309
a. Oversight
OMH’s Office of Quality Improvement (OQI) oversees the development of an
incident management system that is designed to protect the health and safety of
consumers and enhance the quality of care provided. 310
309 14 N.Y.C.R.R. § 527.5. The Commission of Quality of Care and Advocacy for Persons with
Developmental Disabilities was subsumed in the Justice Center for the Protection of People with Special
Needs. Specifically, in 2012, the Legislature enacted the Protection of People with Special Needs Act,
N.Y. Exec. Law § 550, et seq., to protect individuals “who are vulnerable because of their reliance on
professional caregivers to help them overcome physical, cognitive and other challenges,” 2012 N.Y. Laws
ch. 501, §§ 1, 2, by creating a new state agency, the Justice Center for the Protection of People with
Special Needs.
310 The Division of Quality Management (DQM), N.Y. ST. OFF. OF MENTAL HEALTH,
https://omh.ny.gov/omhweb/dqm/ (last visited Apr. 29, 2021). The Justice Center and the National
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External oversight and advocacy for patients within the OMH system is provided
by the Justice Center for the Protection of People with Special Needs, 311 the Board of
Visitors, 312 the Mental Hygiene Legal Service, 313 and the federally funded protection and
advocacy agency, Disability Rights New York. 314
OMH has few specific regulations governing infection control. One regulation,
Part 509, is entitled “Prevention of Influenza Transmission”, and was adopted “in
response to [the] increased public health threat . . . of seasonal influenza.”315 The OMH
Policy Manual also has policies governing the employee vaccination program for
Hepatitis B (Policy OM-400) and a policy governing occupational exposure to
bloodborne pathogens (Policy OMH-403). 316 However, TJC has developed extensive
materials on infection control and prevention. 317
2. The Coronavirus Pandemic
Individuals who live in OMH congregate care residential settings are – like those
who live in nursing homes – subject to risk of being infected with COVID-19, a risk
generally perceived to be higher than the rest of the population. However, there has
Association of Psychiatric Health Systems (NAPHS), the National Association of State Mental Health
Program Directors (NASMHPD) and the NASMHPD Research Institute, Inc. (NRI) collaborated on the
development of a set of core performance measures for Hospital-Based Inpatient Psychiatric Services
(HBIPS). Measures in the HBIPS set were re-endorsed by the National Quality Forum (NQF) on February
18, 2014. See Hospital-Based Inpatient Psychiatric, JOINT COMM’N,
https://www.jointcommission.org/measurement/measures/hospital-based-inpatient-psychiatric/ (last
visited Apr. 29, 2021).
311 N.Y. Exec. Law § 550 et seq.
312 N.Y. Mental Hyg. Law § 7.33.
313 N.Y. Mental Hyg. Law §§ 47.01, 47.03.
314 Disability Rights New York is the designated federal Protection and Advocacy System (“P&A”) for
individuals with disabilities in New York State. The Protection and Advocacy Act for Individuals with
Mental Illness is codified at 42 U.S.C. § 10801 et. seq.
315 See OMH Official Policy Manual, N.Y. ST. OFF. OF MENTAL HEALTH,
https://omh.ny.gov/omhweb/policymanual/contents.htm (last visited Apr. 29, 2021).

316 Id.
317 Infection Prevention and Control, JOINT COMM’N, https://www.jointcommission.org/resources/patient-
safety-topics/infection-prevention-and-control/ (last visited Apr. 29, 2021).
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been no public reporting of COVID -19 infection and death rates by OMH facilities.
According to media reports, however, as of February 10, 2021, 846 patients in State
hospitals contracted the virus and 58 patients died. 318 Age was a salient factor
contributing to COVID deaths in State hospitals as 41 of the 58 patients who perished
from the virus were over 65. 319 Patients at State mental hygiene facilities may not
always be able to wear or tolerate a mask or adhere to safety protocols. 320 Impeding a
further examination of the impact of the virus among people living in OMH congregate
care settings, such as community residences, is a lack of reporting. OMH does not
require certified residential programs or not-for-profit providers to track COVID
infection. 321
OMH maintains a COVID page on its website devoted to guidance issued during
the pandemic. 322 Generally, the COVID policies are grouped into the following sections:
FAQs for program providers; Program Guidance; Infection Control; Fiscal/Contract
Guidance and State Hospital Guidance. On November 12, 2020, New York State also
published an Infection Control Manual for Public Mental Health Programs that is
available on the OMH website. In addition, federal guidelines on infection control were
issued during the public health crisis. For instance, the federal Substance Abuse and
318 Ethan Geringer-Sameth, Covid Toll at State Psychiatric Facilities Has Remained Disproportionately
High, GOTHAM GAZETTE (Feb. 26, 2021), https://www.gothamgazette.com/state/10207-covid-new-york-

state-psychiatric-facilities-disproportionately-high?mc_cid=7b4e367861&mc_eid=1a5d3a1f3d.
319 Id.
320 Id.
321See N.Y. ST. OFF. OF MENTAL HEALTH, INCIDENT REPORTING AND NIMRS UPDATE, Apr. 21, 2020,
https://omh.ny.gov/omhweb/guidance/covid-19-guidance-nimrs-incident-reporting-updates.pdf. NIMRS is
an acronym for the Incident Management and Reporting System utilized by state hospitals, article 28
hospitals and licensed provider agencies. This guidance instructed hospitals and providers that they
were not required to track COVID infections. Id. Deaths attributed to COVID were to be reported using a
new subtype COVID-12 related. Id.
322 COVID-19 Resources, N.Y. ST. OFF. OF MENTAL HEALTH, https://omh.ny.gov/omhweb/covid-19-
resources.html (last visited Apr. 29, 2021); https://omh.ny.gov/omhweb/guidance/covid-19-guidance-

infection-control-public-mh-system-sites.pdf.
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Mental Health Services Administration (SAMHSA) issued a report on May 8, 2020
entitled: COVID19: Interim Consideration for State Psychiatric Hospitals.
An analysis of COVID-19 impact upon the OMH population should also include
responses by the Office of Court Administration (OCA) because many people in the
OMH system are subject to involuntary commitment and treatment. A detailed statutory
framework for the admission and retention of patients is codified at article 9 of the MHL
and provides largely for a medical model of admission subject to judicial review. 323
OCA issued a series of Administrative Orders during the public health crisis, closing
courtrooms and instituting virtual hearings. 324 Mental hygiene proceedings were
considered “essential proceedings” and continued throughout the pandemic, through
the present time, largely in virtual environments. 325 Threats to liberty and due process
should be recognized as having significant (if not immediately quantifiable impact) upon
a substantial population of people already marginalized and at risk of infection and
death from the spread of the virus in institutions where they lived or in the communities
they came from.
Nine months into the pandemic, on December 8, 2020, OMH conducted a virtual
town hall meeting to discuss its response to the public health crisis. OMH identified its
priorities as maintaining access to clinics and ambulatory care with a major shift to
telehealth and telephonic services; ensuring safety of people in residential services by
using best practice infection control practices, enabling mental health beds to be
323 See N.Y. Mental Hyg. Law § 9.01–9.58; see also Project Release v. Prevost, 722 F. 2d, 960 (2d Cir.
1983); Rivers v. Katz, 67 N.Y.2d 485 (1986).

324 See Latest STATEWIDE Administrative Orders, N.Y. ST. UNIFIED COURT SYS.,
https://www.nycourts.gov/latest-Ao.shtml (last visited Apr. 29, 2021).

325 Admin. Order of Chief Admin. Judge of Cts. AO/78/20.
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repurposed for a COVID surge; and making approximately 280 beds available on State
hospital campuses receive patients upon discharge or transfer from general hospitals.
326 For infection control measures, there was daily screening of employees, required
mask wearing for all employees in common areas and when rendering direct patient
services and developing an inventory and stockpile of PPE.
OMH issued various guidance and directives to its own providers and the
providers it regulates in relation to COVID-19. This included guidance on infection
control, telehealth and regulatory changes made in response to COVID. 327 OMH also
issued written guidance addressing a range of topics including: testing of patients and
staff, restrictions on visitation, patient education, PPE protocols, discontinuation of
congregate meals and group meals, and expansion of telehealth tools in efforts to quell
the spread of the virus in OMH operated facilities. 328 With the advent of vaccines, OMH
maintained that it had been successful in vaccinating 2,757 patients in facilities
operated by the agency. 329 Thus, OMH patients – just as nursing home residents – with
the loss of congregate meals and visitation were subjected to isolation, and all the
impacts that entails, in order to be protected from the virus.
Public Health Law article 28 acute care psychiatric units similarly must follow
DOH infection control guidelines when delivering mental health services in their
326 OHM Statewide Virtual Town Hall, N.Y. ST. OFF. OF MENTAL HEALTH, Dec. 8, 2020,
https://omh.ny.gov/omhweb/planning/507/.
327 Dr. Sullivan’s written budget testimony is included in the appendix to this report.
328 COVID-19 Resources, N.Y. ST. OFF. OF MENTAL HEALTH, https://omh.ny.gov/omhweb/covid-19-
resources.html (last visited Apr. 29, 2021).

329 Amanda Fries, State to Vaccine Older Inmates, ALB. TIMES UNION (Feb. 5, 2021),
https://www.pressreader.com/usa/albany-times-union/20210205/281530818707928. OMH officials also

reported to the press that 908 patients had refused the vaccine. Id.
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facilities. 330 OMH operated and licensed inpatient facilities adopted policies to isolate
patients with COVID and prevent further spread of the virus. For example, Northwell
Health, a large health care system which includes several article 28 hospitals with
inpatient psychiatric units in the New York City and on Long Island, decided to transfer
all of its COVID-positive patients to a single unit as an infection control response. In the
hardest hit areas of New York City certain hospitals, such as Bellevue and Bronx Care,
devoted entire units to patients who had tested positive. Facilities also had to adapt to
the public health crisis by canceling therapeutic group activities while offering
programming in smaller, more private settings. Columbia Presbyterian Hospital
provided isolated patients with tablets and internet connections to allow them to
videoconference with their families. 331
Early media reports explained the impact of the virus on State hospitals,
particularly the Rockland Psychiatric Center in Orange County. 332 As the public health
crisis continued unabated and community infection spread, OMH State hospitals faced
challenges to their efforts to protect their patients from infection and death. Inpatient
beds were closed in psychiatric hospitals licensed by OMH and operated by Public
Health Law article 28 hospitals in order to create additional beds for a potential COVID
330 Key Infection Control Practices in Inpatient and Outpatient Medical Care Settings, N.Y. ST. DEP’T OF
HEALTH,
https://www.health.ny.gov/professionals/diseases/reporting/communicable/infection/key_infection_control
_practices.htm (last visited Apr. 29, 2021).
331 The narrative offered is from staff of the Mental Hygiene Legal Service describing their experiences
during the public health crisis. Other evidence of how the pandemic impacted providers can be found in a
survey conducted by The Justice Center. See Katie Bronk, Joint Commission Questionnaire Identifies
COVID-19 Impact, Challenges and Needs Among Health Care Organizations, JOINT COMM’N (Dec. 17,
2020), https://www.jointcommission.org/resources/news-and-multimedia/news/2020/12/joint-commission-
questionnaire-identifies-covid-19-impact/.
332 See Danny Hakim, ‘They Want to Forget Us’: Psychiatric Hospital Workers Feel Exposed, N.Y. TIMES
(Apr. 24, 2020), https://www.nytimes.com/2020/04/24/nyregion/coronavirus-new-york-psychiatric-

hospitals.html?action=click&module=Top%20Stories&pgtype=Homepage.
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surge. 333 For example, the Health Alliance campus in Ulster County closed its entire
inpatient psychiatric unit during the crisis. 334 The New York State Nurses Association,
among other organizations, has criticized closure of inpatient psychiatric beds. 335 There
is no guarantee that these beds will return post-COVID-19 and this, in turn, adversely
impacts people and communities that depend on essential acute care psychiatric
services. 336
Well before COVID-19, community-based mental health and substance abuse
disorder/addiction agencies have struggled for years to address increasing rates of
overdose and suicides in communities across New York State. A now familiar and
distressing refrain is that the public health crisis exposed and exacerbated existing
problems in the mental health arena. 337
The stresses of the pandemic have compounded the need for mental health
services. Elevated levels of adverse mental health conditions, substance use, and
333 See Bethany Bump, Albany Psychiatric Unit Under Quarantine After Coronavirus Outbreak, ALB. TIMES
UNION (Dec. 9, 2020), https://www.timesunion.com/news/article/Quarantines-ordered-at-Albany-
psychiatric-center-15787982.php.
334 See William J. Kemble, Lawmakers Push for Return of Inpatient Mental Health Services for Ulster
County, KINGSTON DAILY FREEMAN (Jun. 20, 2020), https://www.dailyfreeman.com/news/local-

news/lawmakers-push-for-return-of-inpatient-mental-health-services-to-ulster-county/article_f7954ac8-
b31a-11ea-b080-6b51947f8e2f.html?utm_medium=social&utm_source=email&utm_campaign=user-
share.
335 See Closures Are Causing a Full-Blown Mental Health Emergency in New York, N.Y. ST. NURSES
ASS’N (Aug. 20, 2020), https://www.nysna.org/blog/2020/08/20/closures-are-causing-full-blown-mental-

health-emergency-new-york#.YANKmLNOnD4.
336 A Crisis in Inpatient Psychiatric Services in NYS Hospitals. N.Y. ST. NURSES ASS’N (2020),
https://www.nysna.org/sites/default/files/attach/ajax/2020/08/Psych%20Whitepaper%20NYSNA.pdf. The
report notes that the median number of psychiatric beds per 100,000 people in 2014 was 68. Id. at 6.
Factors that effect this range include the percentage of the population with serious mental illness, the
availability of alternative treatment modalities such as assisted outpatient treatment, the overall length of
stay in psychiatric hospitals and the flexibility in financing inpatient beds. Id. According to the National
Association of State Mental Health Program Directors, New York State only had 55.3 beds per 100,000
people in 2014 and the situation only appears to be growing worse. Id.
337 See Behavioral Health Advocates Raise Grave Concerns on Proposed Cuts in Today’s Budget
Hearing, MHANYS (Feb. 5, 2021), https://mhanys.org/mh-update-2-5-21-behavioral-health-advocates-

raise-grave-concerns-on-proposed-cuts-in-todays-budget-hearing/.
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suicidal ideation were reported by adults in the United States in June 2020. The
prevalence of symptoms of anxiety disorder was approximately three times those
reported in the second quarter of 2019 (25.5% versus 8.1%), and prevalence of
depressive disorder was approximately four times that reported in the second quarter of
2019 (24.3% versus 6.5%). 338 Mental health conditions are disproportionately affecting
specific populations, especially young adults, Hispanic persons, Black persons,
essential workers, unpaid caregivers for adults, and those receiving treatment for
preexisting psychiatric conditions. 339 It has been long understood that people living
with mental illness often face substantial obstacles to improving their mental health and
participating fully in their communities and societies. 340 They have been subjected to
discrimination, stigmatization, and other indignities, as well as social and economic
barriers that limit their opportunities. 341 The pandemic exacerbated these pre-existing
conditions for people confined in institutions and those dependent upon community
based mental health services. The potential that community beds and services may be
further eroded foreshadows continuing hardship for this already vulnerable population.
D. Office for People with Developmental Disabilities
The Office for People with Developmental Disabilities (“OPWDD”) is responsible
for ensuring that New Yorkers with developmental disabilities “are provided with
338 Mark Czeisler et al., Mental Health, Substance Use, and Suicidal Ideation During the COVID-19
Pandemic — United States, June 24–30, 2020, 69 MORBIDITY & MORTALITY WKLY. REP. 1049 (2020),
http://dx.doi.org/10.15585/mmwr.mm6932a1external icon.
339 Id.
340 Lance Gable & Lawrence Gostin, Mental Health as a Human Right, 3 SWISS HUMAN RIGHTS BOOK 249
(2009), https://ssrn.com/abstract=1421901.
341 Id. As noted by the authors, the closure of large psychiatric institutions and the promise of
deinstitutionalization was undercut by ineffective planning and meager economic support. Id. (citing
Robert Burt, Promises to Keep, Miles to Go: Mental Health Law Since 1972, in THE EVOLUTION OF MENTAL
HEALTH LAW 11 (Lynda Frost & Richard Bonnie eds., 2001).
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services including care and treatment, that such services are of high quality and
effectiveness, and that the personal and civil rights of persons receiving such services
are protected.” 342 The services provided by OPWDD are designed to promote and
attain independence, inclusion, individuality and productivity for persons with
developmental disabilities. 343 The agency describes itself as being responsible for
coordinating services for New Yorkers with developmental disabilities, including
intellectual disabilities, cerebral palsy, Down syndrome, autism spectrum disorders,
Prader-Willi syndrome and other neurological impairments. 344 OPWDD provides
services directly and through a network of approximately 500 not-for-profit service
providing agencies, with about 80% of services provided by the private nonprofits and
twenty percent provided by state-run services. 345 Ninety-five percent of the people
accessing OPWDD services and supports have Medicaid provided under the Home and
Community Based Services (“HCBS”) waiver. 346 In 2019, nearly 120,000 people
received OPWDD Medicaid services and supports. 347 The OPWDD system is largely
community-based. 348 Over one-half of Medicaid enrollees from the OPWDD system live
342 N.Y. Mental Hyg. Law § 13.07(c).

343 Id.
344 See OPWDD, N.Y. ST. OFF. FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, https://opwdd.ny.gov/ (last
visited Apr. 29, 2021).

345 Id.
346 Home and Community Based Services Waiver, N.Y. ST. OFF. FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES, https://opwdd.ny.gov/providers/home-and-community-based-services-waiver (last visited

Apr. 29, 2021).
347 By the Numbers, N.Y. ST. OFF. FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES,
https://opwdd.ny.gov/data (last visited Apr. 29, 2021).

348 OPWDD still operates two developmental centers located in Franklin County and Chenango County.
They are the Sunmount Developmental Center and the Valley Ridge Center for Intensive Treatment.
Identified as “schools” by definition, see N.Y. Mental Hyg. Law § 1.03(11), OPWDD now refers to these
inpatient centers as “Intensive Treatment Options” in its continuum of care. People are admitted on an
inpatient status pursuant to article 15 of the Mental Hygiene Law or article 730 and section 330.20 of the
Criminal Procedure Law. Capacity at these two facilities combined is approximately 200 beds.
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at home or with family care givers. 349 Those people needing residential placement live
in community residences licensed or operated by OPWDD. 350 There are approximately
6,100 community residences operated or certified by OPWDD. 351 These include
Individualized Residential Alternatives (“IRAs”) which may have up to 14 residents and
provide room, board and individualized service options. 352 Approximately 54% of these
IRAs are designed to serve more than four residents and near 11% are designed to
serve 10 or more residents. In 2019, approximately 33,000 individuals resided in IRAs.
Community residences also include Intermediate Care Facilities, a residential option for
individuals with specific medical or behavioral needs whose disabilities severely limit
their ability to live independently. In 2019, OPWDD served 4,553 individuals in ICFs,
30,530 individuals in supervised IRAs and 2,276 individuals in supportive IRAs. 353
Facilities operated or licensed by OPWDD are subject to extensive oversight and
regulation. OPWDD regulations are found at title 14 of the New York Code of Rules
and Regulations. Regulations that govern residential services include: Part 636-
Services and Supports for Individuals with Developmental Disabilities; Part 681 –
349 By the Numbers, N.Y. ST. OFF. FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES,
https://opwdd.ny.gov/data (last visited Apr. 29, 2021).
350 See N.Y. Mental Hyg. Law § 1.03(28) (definition of community residence); see also Facts about
OPWDD, N.Y. ST. OFF. FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES (2020),
https://opwdd.ny.gov/system/files/documents/2020/03/002_facts_about_opwdd_342020.pdf. Agencies
licensed by OPWDD to provide services are referred to as “voluntary providers.” There are over 500 non-
profit OPWDD providers in New York State. Id.
351 New York State HCBS Settings Transition Plan Executive Summary, N.Y. ST. DEP’T OF HEALTH 100-01
(2018), https://www.health.ny.gov/health_care/medicaid/redesign/hcbs/docs/2018-11-
07_hcbs_final_rule.pdf; Understanding Primary Diagnosis, N.Y. ST. OFF. FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES, https://opwdd.ny.gov/understanding-primary-diagnosis (last visited Apr. 29,
2021).
352 14 N.Y.C.R.R. § 686.16; Facts about OPWDD, N.Y. ST. OFF. FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES (2020),
https://opwdd.ny.gov/system/files/documents/2020/03/002_facts_about_opwdd_342020.pdf.
353 Id.
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Intermediate Care Facilities; Part 686 – Operation of Community Residences and Part
687 – Operation of Family Care Homes. The rights of individuals receiving services are
protected by federal and state law. The federal Developmental Disabilities Assistance
and Bill of Rights is codified at 42 U.S.C. § 15001. Congress found, among other
things, that people with developmental disabilities are at greater risk than the general
population for abuse, neglect, financial and sexual exploitation, and the violation of legal
and human rights. 354 The federal bill of rights provides among other things that federal
and state governments are obligated to ensure that public funds are provided to
programs that meet minimum standards relating to the provision of care that is free from
abuse and neglect and that individuals receive appropriate medical care. 355
OPWDD’s implementing regulations provide that people receiving services have a
right to, among other things:
• a safe and sanitary environment;
• freedom from physical or psychological abuse:
• written individualized plan of services (see glossary) which has as

its goal the maximization of a person’s abilities to cope with his or
her environment, fosters social competency (which includes
meaningful recreation and community programs and contact others
who do not have disabilities), and which enables him or her to live
as independently as possible.
• the opportunity to object to any provision within an individualized

plan of services, and the opportunity to appeal any decision with
which the person disagrees, made in relation to his or her objection
to the plan;
• the opportunity to receive visitors at reasonable times; to have

privacy when visited, provided such visits avoid infringement on the
354 42 U.S.C. § 15001 (a)(4-5).

355 42 U.S.C. § 15009(a)(3)(B)(i); 42 U.S.C. 15009.
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rights of others, and to communicate freely with anyone within or
outside the facility. 356
OPWDD certifies more than 7,500 sites and programs (operated by more than
500 not-for-profit and state providers) and conducts on-site visits to ensure the provision
of quality services and compliance with applicable regulatory requirements. If OPWDD
identifies deficient practices, providers are expected to remedy the concerns and submit
plans of corrective action. 357 In addition, those programs certified as ICFs are subject to
oversight by CMS which contracts with DOH to survey OPWDD licensed and operated
ICFs, including the remaining State-operated developmental centers. 358 This is similar
to the nursing home survey process. External oversight and advocacy for patients
within the OPWDD system is provided by the Justice Center for the Protection of People
with Special Needs, 359 the Board of Visitors, 360 the Mental Hygiene Legal Service 361 and
the federally funded protection and advocacy agency, Disability Rights New York
(“DRNY”). 362 Pursuant to the Permanent Injunction to settle the Willowbrook litigation,
Willowbrook Class Members enjoy advocacy and assistance from the Consumer
Advisory Board (“CAB”) and representation by Class Counsel, the New York Civil
Liberties Union and New York Lawyers for the Public Interest (“NYLPI”). 363
356 See 14 N.Y.C.R.R. § 633.4 (a)(4).

357 See Provider Stability and Performance, N.Y. ST. OFF. FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES,
https://opwdd.ny.gov/providers/provider-stability-and-performance (last visited Apr. 29, 2021).
358 See Methodology and Source, N.Y. ST. DEP’T OF HEALTH,
https://profiles.health.ny.gov/nursing_home/pages/methodology (last visited Apr. 29, 2021).

359 See 14 N.Y.C.R.R. Part 700.
360 N.Y. Mental Hyg. Law § 13.33
361 N.Y. Mental Hyg. Law §§ 47.01, 47.03
362 The federal Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”) requires states to
establish P&A systems in order to receive federal funding. 42 U.S.C. § 15041.

363 The Willowbrook case, bearing the caption New York State Assoc. for Retarded Children v. Cuomo,
393 F. Supp. 715 (E.D.N.Y. 1975) (the “Willowbrook Litigation”), is still pending in the United States
District Court before the Hon. Raymond J. Dearie. The goals of the litigation were then virtually unheard
of – deinstitutionalization, normalization, and community integration – but they have been effectuated
through a series of orders entered in the Willowbrook Litigation, culminating in a March 1993 Permanent
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According to guidance issued by OPWDD on March 11, 2020, staff at OPWDD-
licensed congregate settings were, prior to COVID-19, required to receive training on
infection control, use of PPE, cleaning, activity restrictions and isolation, and symptom
identification. There is a regulatory foundation for the guidance, as section
633.4(a)(4)(i) of the OPWDD regulations requires that people receiving services for a
developmental disability shall not be denied a safe and sanitary environment. Most of
the pre-COVID guidance was directed at environmental/facility standards like
maintenance and general cleanliness provisions and were not geared towards
identification and prevention of infectious disease. 364 Importantly, section
690.5(b)(2)(vi) of the OPWDD regulations, governing day treatment services, required
(and still requires) day treatment facilities to ensure that “there is a standing committee,
or comparable mechanism, to address the issue of infection control.”
2. The Impact of the Coronavirus Pandemic
Individuals served by the OPWDD-operated or regulated system faced hardships
akin to those suffered by the State’s nursing home residents. Between March 17 and
19, 2020, OPWDD closed day programs and suspended visitation at OPWDD operated
and certified congregate care facilities, including community residences. These were
essentially preemptive quarantines to prevent the introduction of the virus. Just as in
nursing homes, this effectively cut off the individuals residing in these residences from
their families, from their communities, and from their usual activities. OPWDD also
Injunction. The NYCLU continues to monitor the State’s compliance with that 1993 injunction on behalf of
over 2,600 individuals with intellectual and/or developmental disabilities living all across New York State.
364 See Agency Protocol Manual, N.Y. ST. OFF. FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES (2019),
https://opwdd.ny.gov/system/files/documents/2019/11/agency_protocol_manual_provider_copy_2-
2019.pdf.
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ordered the shut-down of off-site day habilitation programs. The disruption of usual
activities and the lock down of community residences caused many individuals to
regress. These programs supported their well-being. Families, and the staff within
community residences, could not duplicate fully the lost activities that are so crucial for
these individuals’ developmental and mental support. According to research conducted
during the pandemic, restrictions on usual activities are likely to induce mental stress,
especially among those who are autistic, leading to an escalation in challenging
behaviors, risk of placement breakdown and increased the use of psychotropic
medication. 365
As will be discussed below, the lockdown of community residences and shut
down of day habilitation programs was overall successful in preventing the spread of the
virus, but at terrible cost. And even with that cost, the virus came.
OPWDD took certain steps in response to pandemic. 366 OPWDD created
COVID-19-specific data reporting that was later expanded to include mandatory
reporting through a 24-hour hotline. 367 OPWDD also assigned 100 staff in the OPWDD
system to contact tracing efforts. Over 80 guidance documents were issued by
OPWDD for providers and mitigation and containment efforts resulted in visitation
restrictions and program suspensions. OPWDD also convened regular “stakeholder”
meetings with selected OPWDD providers, family groups and advocates to provide
them with information about OPWDD efforts to manage the public health crisis and
365 K. Courtenay & B. Perera, COVID-19 and People with Intellectual Disabilities: Impacts of a Pandemic,
37 IRISH J. OF PSY. MEDICINE 231 (2020).
366 Joint Legislative Public Hearing on 2021 Executive Budget Proposal: Topic Mental Hygiene, 2021 Leg.
(NY 2021) (testimony of Dr. Theodor Kastner, Commissioner of OPWDD). Dr. Kastner’s budget
testimony is included in the appendix to this report.
367 OPWDD’s data reporting mandates are in contrast to those of OMH which did not require providers to
track COVID infections.
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safeguard its population. There are 36,256 OPWDD-certified residential beds and
42,956 total community beds. 368 As of February 10th, 2021, there had been 9,267
cases of COVID-19 among individuals receiving OPWDD services. 6,698 cases
occurred in residential settings. 618 residents had died from the virus by that date.
There were also 12,414 confirmed cases among staff. 369 As in nursing homes,
residents in the New York metropolitan area were most affected in the initial surge.
Since that time, residents and staff have been affected throughout the State, largely
tracking the rise and fall of infection rates regionally throughout the State.
Studies demonstrate that individuals with developmental disabilities have a
higher incidence of co-occurring medical conditions than the general population that put
them at greater risk of death should they contract COVID-19. 370 In addition to the
heightened risk of serious medical outcomes, residing in congregate care settings puts
residents at higher risk of contracting COVID-19 for several reasons. 371 These include
the extreme difficulty of social distancing in a congregate care setting where individuals
are sharing bathrooms, bedrooms, and other living spaces. In addition, many people
with developmental disabilities receive high levels of personal care assistance from
direct support personnel, who may come in and out of the residence or work at multiple
368 Individuals with developmental disabilities may reside in certified or non-certified beds.
369 This data has been collected and provided to the Task Force by the New York Alliance for Inclusion
and Innovation. See also COVID-19 Data Project, N.Y. ALLIANCE FOR INCLUSION & INNOVATION,
https://nyalliance.org/COVID-19_Data_Project (last accessed Apr. 29, 2021).
370 See Margaret Turk et al., Intellectual and Developmental Disability and COVID-19 Case-Fatality
Trends: TriNetX Analysis, DISABILITY & HEALTH J. (2020),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7245650/pdf/main.pdf (using database of medical records
to compare COVID-19 death rates and comorbidities between individuals with and without IDD, and
confirming that people with I/DD have higher prevalence of comorbid risk factors (i.e., hypertension, heart
disease, respiratory disease, and diabetes) which are often associated with poorer COVID-19 outcomes).
371 See Scott Landes et al., COVID-19 Outcomes Among People with Intellectual and Developmental
Disability Living in Residential Group Homes in New York State, DISABILITY & HEALTH J. (2020),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7311922/pdf/main.pdf.
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program sites. Many individuals with developmental disabilities may also be unable to
wear face coverings, or adhere to other infection control protocols.
OPWDD providers were under great fiscal strain during the pandemic due to loss
of revenue and enormous and unexpected expenditures required to maintain the safety
or residents and staff. Perhaps the greatest challenge encountered by providers was
that OPWDD-licensed and operated community residences were not afforded the same
priority as skilled nursing facilities and other congregate care settings for allocations of
PPE. 372 Further, the State Department of Health, as the State Medicaid agency, initially
set COVID policies for people residing in OPWDD-certified settings. Thus, OPWDD did
not establish the priorities for their constituents despite having greater knowledge and
expertise about the needs of people with developmental disabilities. For example,
visitation at hospitals was suspended by DOH without considering how this suspension
impacted people with disabilities who must rely upon family and staff support when they
are hospitalized. Considerable advocacy was required for DOH to address this need
and amend its visitation policies. 373
Furthermore, while some data have been collected and released to the public
about the rate of infection and fatalities among staff and residents in skilled nursing
facilities, data have not been publicly released concerning the rate of infections and
372 Statement of J.R. Drexelius, Governmental Affairs Counsel, Developmental Disability Alliance for
Western New York, to the Task Force.
373 OPWDD has substantially altered and adapted its service delivery system during the pandemic as
reflected in the State’s Medicaid HCBS Appendix K emergency funding application. See
https://www.health.ny.gov/docs/2020-04-07_appendix_K. Thus, for example, OPWDD sought and
obtained approval from the federal government to permit day services and residential habilitation services
to be delivered at alternative sites. Telehealth services were also expanded and DQI reviews were
postponed. However, unlike some other states, DOH and OPWDD did not seek to amend Appendix K so
that reimbursement could be awarded under Medicaid to cover staff who accompanied persons with
developmental disabilities to hospitals.
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fatalities among staff and residents in OPWDD-operated or certified settings. The lack
of data transparency impedes an objective assessment of the impact of the pandemic
upon a very vulnerable population and the people who provide services and supports to
them. This, in turn, obstructs informed discussions toward mitigating the potentially
devastating impacts of future infectious disease outbreaks. Part of the gap in data
collection is now filled following the March 2021 release of an investigatory report by
DRNY, the New York Civil Liberties Union, and New York Lawyers for the Public
Interest, entitled New York State’s Response to the Protect People with Intellectual and
Developmental Disabilities in Group Homes During the COVID-19 Pandemic. 374 To
determine how many people with developmental disabilities were exposed to infection
and death, the report relied on data received from the Justice Center for the Protection
of People with Special Needs 375 and OPWDD reports relayed on periodic telephone
conference calls with selected stakeholders.
According to the investigative report, as of November 4, 2020, 3,906 New
Yorkers with developmental disabilities had a confirmed COVID-19 diagnosis. Of those
individuals, 3,107 resided in OPWDD-certified beds. 477 deaths attributable to
confirmed COVID-19 occurred. Of the staff working in OPWDD-certified programs,
4,911 had tested positive for COVID-19 through November 4, 2020. 376 Individuals with
developmental disabilities residing in OPWDD-certified group homes were three times
more likely to contract COVID-19 than members of the general population in New York
374 New York State’s Response to Protect People with Intellectual and Developmental Disabilities in
Group Homes during the COVID-19 Pandemic, DISABILITY RIGHTS N.Y. (2021),
https://www.dropbox.com/s/e4ym4d1s2zwmbf2/2021.03.05%20Investigatory%20Report%20on%20State
%27s%20Response%20to%20People%20with%20IDD.pdf?dl=0.
375 Id. at 8.
376 Id.
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State and nearly three times as likely to perish if they contracted the virus. 377 The data
trended worse through the balance of the calendar year 2020 through to February of
2021. According to an OPWDD provider association that participates in periodic
OPWDD stakeholder meetings, through March 24, 2021, there were 10,113 confirmed
COVID-19 positive cases reported to OPWDD statewide. Of those people that tested
positive, approximately three-quarters resided in OPWDD-certified residential programs.
A total of 642 individuals statewide who tested positive died. In addition, 12,414 staff
were reported as confirmed COVID-19-positive. There is greater geographic impact in
the OPWDD system, as well, with the downstate region accounting for 76% of the total
COVID cases. 378
While the hardships endured by people with developmental disabilities and their
families during this public health crisis has been devastating, deaths and rates of
infection on the scale seen in nursing facilities were likely avoided because of the model
of service delivery. That is, people with developmental disabilities who reside in
OPWDD certified settings generally live in family settings and in small residences, not in
large institutions.
377 Id. Beyond quantitative analysis the investigative report published by the three attorney advocacy
agencies found, among things that, OPWDD group homes did not have timely access to PPE, testing
should have been mandatory for staff supporting residents in group homes and clearer guidance and
greater coordination was required retarding quarantines in group homes. Other compelling topics
addressed by the report are staffing challenges during the pandemic, issues that arose when people with
developmental disabilities were hospitalized during the pandemic and the lack of transparency related to
the release of data and essential information to service recipients and stakeholders.
378 The DRNY/NYCLU/NYLPI investigative report indicates that one-half of the total COVID fatalities in
the OPWDD system occurred in the five boroughs of New York City and that New York City and Long
Island accounted for 70% of the fatalities in group homes. Id.
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VII. Conclusion
The Task Force’s review of the impact of COVID-19 on nursing homes and long-
term care, including in OMH and OPWDD providers, reveals that COVID-19 has been
most dangerous for residents of nursing homes, and others in congregate care settings.
In this regard, we cannot say that New York’s experience has varied in a meaningful
way from that of other states. COVID-19 has been most dangerous for the aged and
those with certain comorbidities, most prominently cardiovascular and pulmonary
conditions, and individuals with disabilities. To be a nursing home resident is to be an
individual with comorbidities.
Given the nature of COVID-19, the physical condition of individuals residing in
congregate settings, and their close living conditions, some level of death was
inevitable. This is especially true in nursing homes, due to their size and configuration,
the level of close contact, and the age and comorbidities of their residents. The sheer
number of deaths was not. At-risk nursing home residents were compromised by a
number of factors: community spread, insufficient staffing – pre-existing and/or
exacerbated by the pandemic, insufficient training, insufficient PPE, insufficient State
support, and insufficient preparation. We think there was another factor, especially
applicable to the early days of the pandemic, when COVID-19 seemingly appeared
overnight in metropolitan New York. There was a lack of foresight; really, a lack of
imagination.
We usually think of imagination as the conception of an idea, as conceiving
something better. Imagination is also necessary to conceive of risk and response. In
the late winter of 2020, New York and the United States had no experience with COVID-
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19. We had seen Wuhan, China, and its lockdown. We had seen the building there of
rows of hospitals, seemingly overnight. But that was far away. It was not us. Our
experience had been that new viruses may develop overseas, but they will be largely
contained overseas. That had been our collective experience with SARS, with MERS,
with Zika, and even with Ebola. What seemed terrifying was less so when it reached
our shores, if it even reached our shores.
COVID-19 was different. Despite the obvious scope of the problem in China
there was disbelief that the epidemic could be that bad. This was for three reasons. To
borrow the phrasing of former Secretary of Defense Donald Rumsfeld, there were
unknown unknowns. China wasn’t sharing what it had learned regarding the virus. The
President had been briefed, but he chose to downplay the danger. The virus was
known to be highly contagious, but that it spread asymptomatically was unknown.
Then, there was a certain pridefulness. There was a belief that America and New
Yorkers could handle it. This wasn’t our first rodeo, in the words of Governor Cuomo.
Finally, there was a lack of imagination, not just about how bad the virus could be, but
how quickly it could be upon us. As the warnings came – China, Kirkland, Washington,
Italy – and as the directives came from the CDC and State Department of Health, there
was a failure to recognize just how bad things could be, and how quickly that could
happen. By the time public health professionals were warning of impending,
overwhelming danger, the danger had arrived. Collectively, New York’s health care
institutions, including nursing homes in metropolitan New York, were not ready. The
warnings had come too late, and the expectations regarding what we faced had been
too small. The CDC issued a directive on February 26th for nursing homes to prepare.
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The Governor declared a State of Emergency on March 7th. The State Department of
Health issued nursing home directives on March 12th.
Yet, by March 25th, the State’s hospitals were so overwhelmed that the
Department of Health issued its now infamous directive that nursing homes must accept
stable COVID-19 patients, and were barred from testing for COVID-19. By the time the
directives came, could anyone say that there was enough time to find and hire sufficient
staff, to train sufficient staff, to corral sufficient PPE?
In the best of circumstances, time was short. But the State’s nursing homes
were not in the best of circumstances. COVID-19 exposed that. This Task Force does
not aim to resolve whether the funding of nursing homes has been inadequate, or
whether for-profit-operators are better or worse than not-for-profit providers. The
important points for the Task Force’s work are that the system in which nursing homes
were operating did not adequately account for a pandemic of the magnitude of COVID-
19 – staffing was too lean to accept any stress to the system, too little PPE was on
hand, and the infection control procedures in place were too weak to meet the virus.
And, because of a lack of recognition of what was at hand – a lack of imagination about
how bad the pandemic could be – there was a lack of preparation, if preparation had
even begun. We saw no evidence that the State’s nursing homes, overall, had done
additional hiring in anticipation of COVID’ s arrival, no evidence that the State’s nursing
homes had undertaken needed staff training, no evidence that the State’s nursing
homes had begun purchasing PPE. We also cannot say that the guidance to nursing
homes or other long-term care providers from public health authorities was sufficient.
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What is worse, all that happened in New York’s nursing homes happened after
the nation’s first COVID-19 outbreak occurred – in a Washington State nursing home.
That should have set off alarm bells that nursing home residents were at high risk. If
the bells were ringing, they went unheard.
Perhaps worst of all has been the experience in the State’s nursing homes since
the initial outbreak. Even after the initial impact, many months into the epidemic,
COVID-19 continued to ravage nursing homes across the State until effective vaccines
were administered. A high percentage of the State’s deaths continued to occur in the
State’s nursing homes. The nursing home proportion of the State’s deaths has been
about 30%. In this, the State’s experience has varied little from the rest of the nation.
The proportion of COVID-19 deaths in the State’s nursing homes is not meaningfully
different than the proportion in nursing homes in other states. This suggests that New
York’s nursing homes are no better and no worse than the nation at large. More
importantly, this suggests that nursing homes are not well-suited to manage an
airborne, highly infectious disease.
The experience in nursing homes has been different than that experienced by
other long-term care providers. Individuals receiving Medicaid-funded home care must
be eligible for nursing home level care. Many individuals in OPWDD-certified
community residences have exceedingly complex health care needs. Residents of
these facilities suffered during the pandemic and experienced infection and death at
rates much higher than the general population. Nevertheless, the incidence of death
and disease from COVID-19 has not been as devastating for those served by other
long-term care providers. Some of that difference may reflect differences in age, some
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of it may reflect differences in comorbidities. But the primary difference appears to be
place. Nursing homes are institutional by design. Nursing homes are larger. Nursing
homes bring large numbers of susceptible individuals together.
There are no quick fixes. But there can be improvements. Our
recommendations are both short-term and long-term. Some may be implemented
quickly, some will require a process, and some are long-term solutions for long-term
improvement.
We must also recognize the dynamic nature of the epidemic and the response to
it. We are fortunate that as our Task Force has undertaken its work and this Report is
being written highly effective vaccines have become available. More vaccines are
expected to be available in the next few months. These vaccines are changing the
impact of COVID-19 on long-term care. Vaccines are being administered to nursing
home residents as this is being written, and are available to other long term care
recipients. As these vaccines are administered, the danger to nursing home and other
long term care recipients thankfully is diminishing, though the high percentage of staff
members yet to be vaccinated presents a risk of the virus’ return. The imminent end of
the epidemic in long-term care may be near, but that does not diminish the need for
reforms. Communicable diseases will continue to be a threat in long term care,
especially in nursing homes. The flu is an annual danger, and new contagious diseases
– SARS, MERS and now COVID-19 – continue to emerge.
VIII. Recommendations
Government at the federal, state and local levels have various responsibilities to
the public, especially the most vulnerable, during emergencies. Application of these
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responsibilities to the pandemic response in nursing homes and other long-term care
settings may offer some context to explain why the situation became so dire and to
hopefully prevent future occurrences.
A. Protect Public Health
1. Rethink the Delivery of Long-Term Care
One of the most basic responsibilities of government is to protect public health.
The experience with COVID-19 compels a rethinking of the delivery of long-term care.
Through the course of the COVID-19 epidemic, nursing homes have been dangerous
places for their residents. That statement is not intended as an indictment of nursing
homes. It is simply a reflection of the overwhelming impact COVID-19 has had in
nursing homes. Nursing homes, as a whole, have had difficulty in containing an
aerosol-based virus. COVID-19 has been a challenge for congregate care providers,
but nursing homes have faced the most challenges.
State and federal regulations recognize that, for many, nursing homes will be
their final home. That is unacceptable. Nursing homes are institutional care. Human
beings do not want to end their days in institutions. There must be a lessened
dependence on nursing homes. Individuals being discharged from hospitals in need of
further care must be offered home care options just as they are offered nursing home
options. Individuals finishing their rehabilitation time in nursing homes in need of further
care must be offered other long-term care as well as continued nursing home
placement. Those individuals should be offered the full range of services that may meet
their needs, whether institutional or community based. Home care, in its several forms,
must be available to the same extent as nursing home care.
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There will be a continued need for nursing home services. There will be those in
need of inpatient rehabilitation. There will also be those in need of care that simply
cannot be offered at home. But, as we have seen, in many instances nursing homes
became hothouses for COVID-19. And, as studies from this pandemic are beginning to
reveal a connection between the impact of COVID-19 in nursing homes based on race
and ethnicity of patients, nursing homes serving these populations were
disproportionately impacted. Not everyone in need of care needs to end their days in a
hospital extender. Serious consideration must be given to whether the physical
structure of nursing homes themselves can change. A systemic preference for
institutionalized care should not be in place when there is agreement, and, under
Olmstead, a requirement, that individuals should live in the community when that is their
preference
Before nursing homes developed in their current form, convalescent care, old-
age care, was often provided in small settings, including caregiver’s homes. As people
aged and their health care needs became more complex, that informal model became
obsolete, succeeded by the institutional model dominant today. Consideration should
be given to the whether the non-institutional, smaller-sized model of times past could be
replicated today and altered to meet individuals’ needs. There is such a model, though
not perfectly equivalent. Services for people with developmental disabilities were once
highly institutionalized. That system, despite the complex needs of many service
recipients, has long since moved to a community-based system. That system
dispenses medication, arranges medical care, and otherwise is responsible for meeting
residents’ needs, all in home-like settings. In addition, because its residences are so
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much smaller, contagion can be more easily contained. A serious examination should
be made to determine how much of the nursing home system can be transformed into a
community-based system. Further, consideration should be given to whether current
nursing home facilities can be transformed from hospital-like wards to something more
akin to home-like apartments.
As consideration is given to transformation of the system of long-term care, there
is a need to improve the delivery of care while nursing homes remain the dominant
long-term care providers. To that end, more immediate reforms are needed to protect
residents in long term care.
2. Meaningful Agency Enforcement
Meaningful enforcement of nursing home and adult care facility regulations can
play an important role in limiting the further spread of this coronavirus, and the
possibility of future emerging pandemics. Toward that end, however, we recommend
certain changes in DOH enforcement policies and practices.
a. Review Regulatory Standards
The regulation of nursing homes and adult care facilities by DOH is characterized
by hundreds to thousands of standards that regulate the minutiae, and which have little
to no impact on residents’ quality of life or protection from contagion. Too often,
however, the focus of DOH surveyors is on this minutiae rather than on the big picture –
the quality of life and protection of resident safety and rights. Required rigid adherence
to less-important regulatory standards can not only take the focus of surveyors away
from the bigger picture, but also stifle initiative from operators when they are having to
deal with emerging threats like COVID-19. DOH is also seen in the industry as having
moved away from an advisory and supportive role to one much more prosecutorial in
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nature. This has inhibited the open dialogue that may prove critical in dealing with and
containing emerging outbreaks. Contagious diseases and pandemics are not spread in
long-term care facilities by the failure to adhere perfectly to the minutiae, but rather by
failure to focus on what is needed to enhance infection control, to increase and train
staffing, to supply PPE, and to empower operators to make timely and critical decisions
based on their immediate needs and situations.
b. Survey Process
The survey process must be reformed to better measure intended outcomes.
Too often, the survey process becomes the application of a checklist that does little to
measure actual quality and real risks to residents. Infection control must be a central
part of the survey process. So, too, should staffing levels. The survey process should
include a review of whether nursing facilities meet whatever the pre-determined staffing
standard has established.
c. Address Under-Performers
The State’s nursing homes have usually operated at very high occupancies.
Overall occupancy rates usually exceeded 95%. There was no excess capacity. Since
COVID-19, overall occupancy rates have fallen significantly, to below 85%. When the
system was performing at capacity, the State’s nursing home regulator – the State
Department of Health – could find its options constrained in dealing with the worst
performers. Excess capacity provides the Department of Health an opportunity to deal
with operators who have a history of failing to meet their residents’ needs, whose
performance jeopardizes the health of their residents. The Department should use it.
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B. Prepare for Emergencies
The COVID-19 epidemic is a once-in-a-hundred-year event. Preparation for
such an event is difficult. Communicable disease outbreaks, however, are not unusual.
Proper planning for those outbreaks would meet many of the issues that have emerged
in this epidemic. As noted above, a properly trained, properly empowered infection
control officer developing and implementing an infection control plan would be a key to
proper preparation.
Preparation is also necessary on the macro level. The pandemic has revealed
that the federal and state public health support structures were not what they should be.
National stockpiles of equipment, for example, had withered. More importantly, human
capital, especially at the federal level had withered. The CDC’s international reach had
lessened. The National Security Council no longer had a position dedicated to health
issues. Public health requires attention and capabilities, as much as any other element
of national defense.
1. Support for Staffing
Another key to preparation is adequate staff, adequately trained. Staff members
stretched beyond their capabilities inevitably will have to cut corners. Proper care of
residents takes time. Following infection control procedures takes time. Properly
donning PPE takes times. Proper hand sanitation takes time. There must be enough
staff. Minimum staffing standards are highly controversial. Adequate staffing, though,
could be addressed in other ways. Nursing homes could be required to disclose their
staffing ratings at the time of each resident’s admission. The prominent posting of
staffing ratings could be required. DOH regulations could require a monthly certification
of adequate staffing, including a statement of how the determination of adequate
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staffing was reached. Those statements could be publicly available on the
Department’s web site.
Even when fully staffed, staff members must be properly trained so that they
have a full understanding and commitment to infection control, including the basics of
hand-washing, PPE wear, and disinfection techniques.
There may be some disagreement about what is an appropriate funding level for
long-term care providers, but there can be no dispute that direct care staff are low-paid.
This is true in nursing homes, in OPWDD-certified group homes, and in home care.
There also can be no dispute that most funding for long-term care comes from
government, principally Medicaid. Those Medicaid funding rates presume (or drive)
wage rates for direct care workers to or near minimum wage standards, even if those
wage standards are described as “living wages”. Low wages correlate with high staff
turnover. High staff turnover increases training needs and costs. High staff turnover
leads to less familiarity with residents. High staff turnover correlates to lower quality
care. Means must be established to increase direct staff wage rates.
Infection control also requires that contagious staff not be at the worksite. New
York has addressed this problem in regard to COVID-19 by requiring paid leave to
those subject to quarantine or isolation orders. Paid staff sick leave must become a
permanent fixture in long-term care. Medicaid funding levels must be adjusted to fully
support the costs of that sick leave.
2. Visitation and Home Visits
One of the most unfortunate effects of the COVID-19 epidemic has been the
severe restrictions that have been placed upon visitation and home visits. Those
restrictions have caused depression and regression for residents of nursing and group
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homes. When the only effective means to stop the spread is to isolate, those
restrictions are understandable. The immense collateral damage they cause, however,
must be recognized, constantly monitored, and minimized, if possible. Means of contact
must be established. Video-conferencing works for business. It can help in congregate
care. Whether the use of PPE can adequately minimize the risk of visits must also be
considered. Finally, the restrictions themselves must be continuously reviewed for
continued necessity, and altered as appropriate.
C. Clear Guidance
During an emergency, clear and consistent guidance from the various levels of
government is important to ensure the safety of the public. The guidance should be
understandable to the intended audience and should not conflict with other government
requirements. When the Governor issued the March 25th directive, many nursing homes
believed this meant they could not deny admittance or readmittance of a COVID-19-
positive patient. Additionally, at this time the CDC guidance was different from the
March 25th directive which put nursing homes in the untenable position of attempting to
determine what they were supposed to do in order to be in compliance.
D. Prevent the Spread of Communicable Diseases
1. Empowered Infection Control Officers
Under current regulations, every nursing home must have an infection control
plan. An employee must be responsible for the plan. Given the primacy of infection
control, we think the position must be upgraded. Nursing homes must have a
designated infection control officer reporting directly to the governing body. Subject to
the governing body, the infection control officer must be responsible for development,
implementation, and oversight of an infection control plan. The infection control officer
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also must be responsible for identifying emergent infection risks and adapting the
infection control plan as needed, especially in light of the lessons learned from COVID-
19.
2. COVID-19 Nursing Homes and Wards
In some states, COVID-only nursing homes were established. In New York,
some nursing homes established COVID-only floors or wards. These COVID-only
solutions are disruptive to residents, but seem to have been effective in limiting the
spread of COVID-19. State regulations should permit their further use if necessary, and
require their use if necessary to control other serious epidemics.
E. Collect and Disseminate Information
The controversy over the reporting of COVID-related deaths in skilled nursing
facilities is well known. There was also a complete lack of public reporting of COVID-
19-related infection and deaths in facilities licensed or operated by OMH and OPWDD.
Data transparency, in particular demographic data with respect to individuals living in
long term care settings and the staff employed in these settings, is essential for
syndemic analysis on public health and must be assured by New York State agencies
going forward.
F. Allocate Resources
Plans must be made in advance for the identification, acquisition, and allocation
of resources necessary to meet the needs of the health care delivery system. There
must be a willingness to use already granted statutory authority, such as the Defense
Production Act, in order to produce and allocate necessary supplies.
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Funding is always an issue. In a nation that spends 17.7% of its gross domestic
product on health care, an average of $11,852 per person, 379 it is difficult to say that
more should be spent. There is, nevertheless, a lack of investment in certain areas of
the healthcare system over decades that has caused significant misallocation compared
to the need, and that must be addressed. The pandemic has exposed
underinvestment, and the devastating impact on poor communities, which, in New
York, are primarily communities of color. Funding must go where it is most needed,
through structures that allow that funding to be used appropriately and efficiently. The
pandemic has also exposed underinvestment and under-attention to public health.
These must be corrected.
G. Long-Term Care Needs as a Priority
One of the public policy shortcomings that occurred as COVID-19 exploded in
the dark days of March and April was the near absolute focus on the needs of hospitals,
to the near exclusion to all other levels of care. This shortcoming was most glaring in
the allocation of PPE. We recognize that PPE was in short supply in the early days of
the epidemic, but there does not appear to have been a convincing reason to place the
need for PPE in hospitals over the need in nursing homes. It was no answer to say that
nursing homes should have had an adequate stock of PPE in place. The same was
equally true of hospitals.
The health care system is a system of interlocking parts. Hospitals are the
center of the system, attracting the most attention and money. But they do not stand
379National Health Expenditure Data, CTRS. FOR MEDICARE & MEDICAID SERVS.,
https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-
Reports/NationalHealthExpendData/NationalHealthAccountsHistorical#:~:text=The%20data%20are%20p
resented%20by,spending%20accounted%20for%2017.7%20percent (last visited Apr. 29, 2021).
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alone. Nursing homes act as hospital extenders. Many nursing home residents are
indistinguishable from hospital patients, but for the fact that for many nursing home
residents, their respective conditions will not improve. And, as we have seen, nursing
home residents were highly susceptible to the virus. That does not mean in all
circumstances that the need in nursing homes is the same as in hospitals. It does
mean that policymakers must take a broader view, especially when dealing with
shortages. Like must be treated as like, and there must be consideration of what is
alike.
Other long-term care providers faced even greater difficulties in securing PPE,
and less help from State government in accessing PPE. In an instance of extreme
shortage, priorities must be established. Nevertheless, in establishing priorities, some
recognition must be made of other long-term care providers, including a recognition of
the risk that the failure to address their needs portends.
H. Remove Politics from the Equation
Neither COVID-19 nor communicable or infectious diseases discriminate on the
basis of political affiliation. These viruses do not care who is elected President,
Governor, Mayor, or federal or state legislators. Politics, however, appears to have
played an overly large and counterproductive role in dealing with this pandemic,
especially on the federal level. Whether to mandate or advocate testing, vaccinations,
mask-wearing and social distancing became political footballs, and not doing so
became rallying cries, although largely after the first surge in New York. This led, at a
minimum, to lack of acceptance among many about the virus and how to slow its
spread, and this did impact the subsequent surges. Accurate data were not reported or
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were presented in misleading fashion at the federal and state levels. Political rivalry
between the Governor and the NYC Mayor created tensions and delays in efforts to halt
the spread. In the end, the best advice of our public health experts was not timely
followed. Effectively dealing with pandemics and major health crises requires putting
political differences and ambitions aside, and relying upon the advice of experts who
have been put in the positions they hold to prepare for and give that advice. .
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Appendices
Appendix I: Executive Orders relating to Nursing Homes and Adult Homes
EO No. Applicability
EO 202 ALL; Hospitals and NHs: suspends certain transfer and
affiliation agreement requirements to permit rapid discharge,
Issued: 03/07/2020
transfer and receipt of patients.
EO 202.5 NHs: suspends or modifies regulations relating to resident
assessment and care planning; physician approvals for
Issued: 03/18/2020
admission; admission policies and practices to facilitate
resident transfer.
EO 202.5 NHs: suspends or modifies regulations relating to resident
assessment and care planning; physician approvals for
Issued: 03/18/2020
admission; admission policies and practices to facilitate
resident transfer.
EO 202.10 All healthcare providers: relief from recordkeeping
requirements and immunity relating to same.
Issued: 03/23/2020
EO 202.18 Hospital or Nursing Home: temporarily suspends licensure
requirements to permit recent nurse practitioner graduates to
Issued: 04/16/2020
practice in a hospital or nursing home.
SNF, NH, and ACFs:
Directs notification to family members or next of kin within 24
hours if any resident tests positive for COVID-19 or suffers a
COVID-19 related death
EO 202.19 SNF, NH or ACF: Directs the imposition of penalty for non-
compliance with EO 202.18 of $2,000 per violation per day.
Issued: 04/17/2020
EO 202.23 SNF or ACF: authorizes the Health Commissioner to suspend
or revoke SNF or ACF operating certificate for failure to
Issued: 04/24/2020
adhere to Commissioner’s regulations or directives and to
appoint a receiver to continue operations on 24 hours’ notice
EO 202.30 NHs and ACFs: requires nursing homes and adult care
facilities to test or make arrangements for the testing of all
Issued: 05/10/2020
personnel twice per week pursuant to a plan [to be] developed
by the facility administrator and filed with the Department of
Health by 05/13/2020 and to report positive test results by
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5:00 pm on the day following receipt of the test results;
authorizes the Commissioner to suspend or revoke the
operating certificate of a nursing home or adult care facility for
noncompliance with EO 202.30 or any regulations or
directives issued by the Commissioner and to appoint a
receiver to continue operations on 24 hours’ notice; makes a
false statement in the attestation punishable under Penal
Code 210.45; subjects nursing home or adult care facility to a
penalty for non-compliance of $2,000 per violation per day for
noncompliance.
EO 202.32 Clinical Labs, NHs and ACFs: allows clinical laboratories to
accept and examine specimens and test for COVID-19
Issued: 05/21/2020
specimens for NH and ACF personnel without a prescription
and to report the results to operators and administrators; and
facility administrators to contact the local health department
for follow up for all facility personnel who test positive.
EO 202.40 NHs and ACFs: continues the testing requirements in EO
202.30 and amends it to require nursing homes and adult care
Issued: 06/10/2020
facilities in Phase Two reopening regions to test or make
arrangements to test all personnel for COVID-19 once per
week.
EO 202.44 Clinical Labs, NHs and ACFs:
Issued: 06/21/2020 allows clinical laboratories to accept specimens and test for
COVID-19 for NH and ACF personnel without a prescription
and to report the results to operators and administrators and
requires facilities to report positives to the local health
department for follow up for treatment and isolation orders;
authorizes the Commissioner to suspend or revoke the
operating certificate of a skilled nursing facility or adult care
facility for noncompliance with any regulations or directives
issued by the Commissioner and to appoint a receiver to
continue the operations on 24 hours’ notice.
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EO 202.60 Coroner, NHs, Hospitals, Hospice Agencies:
Issued: 09/04/2020 Directs the coroner or medical examiner to administer a
COVID-19 and influenza test to a deceased person upon a
reasonable suspicion that COVID-19 or influenza was a cause
of death, where no such tests were performed within 14 days
prior to death in a nursing home or hospital or by the hospice
agency and to report the cause of death only after receiving
the test results.
EO 202.73 NHs (does not refer to ACFs):
Issued: 11/09/2020 Extends and modifies EO 202.30 and 202.40 to require
nursing homes in red, orange, or yellow zones (under EO
202.68) to test or make arrangements for testing for COVID
for all personnel.
EO 202.77 NHs or ACFs: Requires nursing homes and adult car facilities
to comply with guidance for patients released for a leave of
Issued: 11/23/2020
absence to visit friends or relatives (i.e., for the Thanksgiving
holiday) upon the resident’s return.
EO 202.88 NHs:
Issued: 01/04/2021 Modifies EO 202.73, which modified EO 202.30, and 202.40,
to require nursing homes to test all personnel at the facility in
any area of the state irrespective of location in a micro-cluster
zone as provided in EO 202.68.
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Appendix II: New York State Regulatory Activity relating to Nursing Homes and
COVID
Notice No./ Issued Subject of proposed rule

Regulation
HLT-08-20- 02/26/2020 Communicable Diseases Reporting and Control -
00001 Emergency/ Adding Severe or Novel Coronavirus:
Proposed To require physicians, hospitals, nursing homes,
D&TCs and clinical laboratories to report instances of
05/27/2020
severe or novel coronavirus
Emergency
07/01/2020
Finalized
HLT-12-20- 03/25/2020 Investigation of Communicable Disease; Isolation and
00004 Emergency Quarantine: Control of communicable disease.
HLT-17-20- 04/29/2020 Immunizations and Communicable Diseases:
00004 Emergency To control and promote the control of communicable
diseases to reduce their spread.
00002 Emergency Quarantine: Control of communicable disease.
HLT-30-20- 07/29/2020 Enforcement of Social Distancing Measures:

HLT-31-20- 08/05/2020 Hospital Personal Protective Equipment (PPE)
00013 Emergency Requirements:
To ensure that all general hospitals maintain a 90-day
02/03/2021 supply of PPE during the COVID-19 emergency.
Emergency
HLT-32-20- 08/12/2020 Nursing Home Personal Protective Equipment (PPE)
To ensure that all nursing homes maintain a 90-day
02/03/2021 supply of PPE during the COVID-19 emergency.
Emergency
HLT-34-20- 08/26/2020 Surge and Flex Health Coordination System:
00002 Emergency Provides authority to the Commissioner to direct
certain actions and waive certain regulations in an
emergency. (Full text is posted at the following
State website:
www.health.ny.gov/Laws&Regulations/Emergency
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Regulations): Although the Governor retains
authority to issue Executive Orders to temporarily
suspend or modify regulations and issue directives
pursuant to the Executive Law, these proposed
regulatory amendments would provide an expedient
and coherent plan to implement quickly the relevant
temporary suspensions, modifications, and directives.
The proposed regulatory amendments would permit
the State Commissioner of Health or designee to take
specific actions, as well as to temporarily suspend or
modify certain regulatory provisions (or parts thereof)
in Titles 10 and 18 of the NYCRR during a state
disaster emergency, where such provisions are not
required by statute or federal law. These proposed
amendments would also permit the Commissioner to
take certain actions, where consistent with any
Executive Order (EO) issued by the Governor during
a declared state disaster emergency. Examples
include issuing directives to authorize and require
clinical laboratories or hospitals to take certain actions
consistent with any such EOs, as well as the
temporary suspension or modification of additional
regulatory provisions when the Governor temporarily
suspends or modifies a controlling state statute.
The proposed regulatory amendments would also
require hospitals to: develop disaster emergency
response plans; maintain a 90-day supply of personal
protective equipment (PPE); ensure that staff capable
of working remotely are equipped and trained to do
so; and report data as requested by the
Commissioner.
HLT-37-20- 09/16/2020 Confirmatory COVID-19 and Influenza Testing:
00007 Emergency To require confirmatory COVID-19 and influenza
testing in several settings to improve case statistics
and contact tracing.
00001 Emergency Quarantine: Control of communicable disease. These
regulations clarify the authority and duty of the New
York State Department of Health (“Department”) and
local health departments to protect the public in the
event of an outbreak of communicable disease,
through appropriate public health orders issued to
persons diagnosed with or exposed to a
communicable disease. These regulations also
require hospitals to report syndromic surveillance
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data to the Department upon direction from the
Commissioner and clarify reporting requirements for
clinical laboratories with respect to communicable
diseases. Full text is posted at:
https://regs.health.ny.gov/regulations/emergency.
HLT-44-20-0000 11/04/2020 Hospital Personal Protective Equipment (PPE)
Emergency Requirements:
To ensure that all general hospitals maintain a 90-day
supply of PPE during the COVID-19 emergency.
HLT-44-20- 11/04/2020 Nursing Home Personal Protective Equipment (PPE)
To ensure that all nursing homes maintain a 90-day
supply of PPE during the COVID-19 emergency.
HLT-47-20- 11/25/2020 Surge and Flex Health Coordination System:
00001 Emergency Provides authority to the Commissioner to direct
certain actions and waive certain regulations in an
emergency.
(Full text is posted at the following State website:
www.health.ny.gov/Laws&Regulations/Emergency
Regulations): Although the Governor retains
authority to issue Executive Orders to temporarily
suspend or modify regulations and issue directives
pursuant to the Executive Law, these proposed
regulatory amendments would provide an expedient
and coherent plan to implement quickly the relevant
temporary suspensions, modifications, and directives.
The proposed regulatory amendments would permit
the State Commissioner of Health or designee to take
specific actions, as well as to temporarily suspend or
modify certain regulatory provisions (or parts thereof)
in Titles 10 and 18 of the NYCRR during a state
disaster emergency, where such provisions are not
required by statute or federal law. These proposed
amendments would also permit the Commissioner to
take certain actions, where consistent with any
Executive Order (EO) issued by the Governor during
a declared state disaster emergency. Examples
include issuing directives to authorize and require
clinical laboratories or hospitals to take certain actions
consistent with any such EOs, as well as the
temporary suspension or modification of additional
regulatory provisions when the Governor temporarily
suspends or modifies a controlling state statute. The
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proposed regulatory amendments would also require
hospitals to: develop disaster emergency response
plans; maintain a 90-day supply of personal protective
equipment (PPE); ensure that staff capable of
working remotely are equipped and trained to do so;
and report data as requested by the Commissioner.
00001: Emergency To control and promote the control of communicable
HLT-50-20- 12/16/2020 Confirmatory COVID-19 and Influenza Testing:
00003 Emergency To require confirmatory COVID-19 and influenza
testing in several settings to improve case statistics
and contact tracing.
00001 Emergency Quarantine: Control of communicable disease. These
regulations clarify the authority and duty of the New
York State Department of Health (“Department”) and
local health departments to protect the public in the
event of an outbreak of communicable disease,
through appropriate public health orders issued to
persons diagnosed with or exposed to a
communicable disease. These regulations also
require hospitals to report syndromic surveillance
data to the Department upon direction from the
Commissioner and clarify reporting requirements for
clinical laboratories with respect to communicable
diseases. (Full text is posted at:
https://regs.health.ny.gov/regulations/emergency)
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Appendix III: COVID-Era Sub-Regulatory Guidance
A. Federal Nursing Home Guidance
Date Title
02/06/2020 CMS QSO 20-09-ALL, For 2019 novel coronavirus, CDC is currently
re Information for advising adherence to Standard, Contact,
Healthcare Facilities and Airborne Precautions, including the use
Concerning 2019 of eye protection (for more information, see
Novel Coronavirus CDC’s Interim Infection Control
Illness (2019-nCoV) Recommendations for 2019-nCoV). In
addition to the review of CDC information by
healthcare facilities, we encourage the
review of appropriate personal protective
equipment (PPE) use and availability, such
as gloves, gowns, respirators, and eye
protection. Medicare participating healthcare
facilities should also have PPE measures
and protocols within their emergency plans,
especially in the event of potential surge
situations.
03/04/2020 CMS QSO-20-12-All, Effective immediately, survey activity is
re “Suspension of limited to the following (in Priority Order): all
Survey Activities” immediate jeopardy complaints and
allegations of abuse and neglect; complaints
alleging infection control concerns, including
facilities with potential COVID-19 or other
respiratory illnesses; statutorily required
recertification surveys (Nursing Home, Home
Health, Hospice, and ICF/IID facilities); any
re-visits necessary to resolve current
enforcement actions; initial certifications;
surveys of facilities/hospitals that have a
history of infection control deficiencies at the
immediate jeopardy level in the last three
years; surveys of facilities/ hospitals/ dialysis
centers that have a history of infection
control deficiencies at lower levels than
immediate jeopardy.
03/04/2020 CMS QSO-20-14-NH, Per CDC, prompt detection, triage and
re “Guidance for isolation of potentially infectious patients are
Infection Control and essential to prevent unnecessary exposures
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Prevention of among patients, healthcare personnel, and
Coronavirus Disease visitors at the facility. Therefore, facilities
2019 (COVID-19) in should continue to be vigilant in identifying
nursing homes” any possible infected individuals. Facilities
should consider frequent monitoring for
potential symptoms of respiratory infection as
needed throughout the day. A nursing home
can accept a patient diagnosed with COVID-
19 and still under Transmission-based
Precautions for COVID-19 as long as it can
follow CDC guidance for transmission-based
precautions. If a nursing home cannot, it
must wait until these precautions are
discontinued.
03/13/2020 CMS QSO-20-14-NH CMS is providing additional guidance to
REVISED, re nursing homes to help them improve their
“Guidance for infection control and prevention practices to
Infection Control and prevent the transmission of COVID-19,
Prevention of including revised guidance for visitation.
Coronavirus Disease
2019 (COVID-19) in
nursing homes
(REVISED)”
03/23/2020 CMS QSO-20-20-All, During this three-week timeframe [from the
“Prioritization of declaration of the PHE on 3/13/2020], only
Survey Activities:” the following types of surveys will be
prioritized and conducted: complaint/facility-
reported incident surveys, triaged at the
immediate jeopardy level;
Targeted infection control surveys (using a
streamlined review checklist).
04/02/2020 CMS and CDC Nursing Homes should immediately ensure
COVID-19 Long-Term that they are complying with all CMS and
Care Facility CDC guidance related to infection control. •
Guidance In particular, facilities should focus on
adherence to appropriate hand hygiene as
set forth by CDC.
CMS has also recently issued extensive
infection control guidance, including a self-
assessment checklist that long-term care
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facilities can use to determine their
compliance with these crucial infection
control actions. • Facilities should also refer
to CDC’s guidance to long-term care facilities
on COVID-19 and also use guidance on
conservation of personal protective
equipment (PPE) when unable to follow the
long-term care facility guidance. 2. As long-
term care facilities are a critical part of the
healthcare system, and because of the ease
of spread in long-term care facilities and the
severity of illness that occurs in residents
with COVID-19, CMS urges State and local
leaders to consider the needs of long-term
care facilities with respect to supplies of PPE
and COVID-19 tests. State and local health
departments should work together with long-
term care facilities in their communities to
determine and help address long-term care
facility needs for PPE and/or COVID-19
tests. • Medicare is now covering COVID-19
testing when furnished to eligible
beneficiaries by certified laboratories. These
laboratories may also choose to enter
facilities to conduct COVID-19 testing.
04/13/2020 CMS QSO-20-25-NH, CMS is waiving requirements in 42 CFR
re 2019 Novel 483.10(c)(5); 483.15(c)(3), (c)(4)(ii), (c)(5)(i)
Coronavirus (COVID- and (iv), (c)(9), and (d); and § 483.21(a)(1)(i),
19) Long-Term Care (a)(2)(i), and (b) (2)(i) (with some exceptions)
Facility Transfer to allow a long term care (LTC) facility to
Scenarios transfer or discharge residents to another
LTC facility solely for the cohorting purposes:
transferring residents with symptoms of a
respiratory infection or confirmed diagnosis
of COVID-19 to another facility that agrees to
accept each specific resident, and is
dedicated to the care of such residents;
transferring residents without symptoms of a
respiratory infection or confirmed to not have
COVID-19 to another facility that agrees to
accept each specific resident, and is
dedicated to the care of such residents to
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prevent them from acquiring COVID-19; or
transferring residents without symptoms of a
respiratory infection to another facility that
agrees to accept each specific resident to
observe for any signs or symptoms of a
respiratory infection over 14 days.
04/19/2020 CMS QSO-20-26-NH, Facility Reporting
re “Upcoming
Current requirements at 42 CFR 483.80 and
Requirements for
CDC guidance specify that nursing homes
Notification of
notify State or Local health department about
Confirmed COVID-19
residents or staff with suspected or
(or COVID-19
confirmed COVID-19, residents with severe
Persons under
respiratory infection resulting in
Investigation) Among
hospitalization or death, or ≥ 3 residents or
Residents and Staff in
staff with new-onset respiratory symptoms
Nursing Homes”
within 72 hours of each other. At present,
these data are not collected by CMS, CDC,
or the Federal Emergency Management
Agency (FEMA). CMS and CDC will soon
provide nursing homes with specific direction
on standard formatting and frequency for
reporting this information through the CDC’s
National Health Safety Network (NHSN)
system. Currently, this information is
provided optionally by nursing homes. The
required collection of this information will be
used to support surveillance of COVID-19
locally and nationally, monitor trends in
infection rates, and inform public health
policies and actions. This information may be
retained and publicly reported in accordance
with law.
Resident and Resident Representative
Reporting In addition to requiring reporting to
CDC, in rulemaking that will follow, we will
also be requiring that facilities notify its
residents and their representatives to keep
them informed of the conditions inside the
facility.
In rulemaking that will follow this
memorandum, failure to report resident or
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staff incidences of communicable disease or
infection, including confirmed COVID-19
cases (or Persons Under Investigation for
COVID-19), or provide timely notification to
residents and their representatives of these
incidences, as required, could result in an
enforcement action against the nursing home
by CMS.
04/24/2020 CMS QSO-20-28-NH, Is a negative test for COVID-19 (SARS-CoV-
re “Nursing Home 2) required before a hospitalized patient can
Five Star Quality be discharged to a nursing home? A: No. For
Rating System patients hospitalized with COVID-19,
updates, Nursing decisions about discharge from the hospital
Home Staff Counts, should be based on their clinical status, the
and Frequently Asked ability of the accepting facility to meet their
Questions” care needs and the infection control
requirements specified below. Decisions
about hospital discharge are distinct from
decisions about discontinuation of
Transmission-Based Precautions. (Additional
guidance follows.)
05/06/2020 CMS QSO-20-29-NH, On May 8, 2020, CMS will publish an interim
re “Interim Final Rule final rule with comment period: COVID-19
Updating Reporting Requirements: CMS is requiring
Requirements for nursing homes to report COVID-19 facility
Notification of data to the Centers for Disease Control and
Confirmed and Prevention (CDC) and to residents, their
Suspected COVID-19 representatives, and families of residents in
Cases Among facilities.
Residents and Staff in
Nursing Homes”
05/18/2020 CMS CMS QSO-20- Recommendations for State and Local
30-NH, “Nursing Officials: CMS is providing recommendations
Home Reopening to help determine the level of mitigation
Recommendations for needed to prevent the transmission of
State and Local COVID-19 in nursing homes. The
Officials” recommendations cover the following items:
o Criteria for relaxing certain restrictions and
mitigating the risk of resurgence: Factors to
inform decisions for relaxing nursing home
restrictions through a phased approach. o
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Visitation and Service Considerations:
Considerations allowing visitation and
services in each phase. o Restoration of
Survey Activities: Recommendations for
restarting certain surveys in each phase.
06/01/2020 CMS QSO-20-31-All • CMS has implemented a new COVID-19
REVISED re reporting requirement for nursing homes, and
is partnering with CDC’s robust federal
“COVID-19 Survey
disease surveillance system to quickly
Activities, CARES Act
identify problem areas and inform future
Funding, Enhanced
infection control actions. • Following the
Enforcement for
March 6, 2020 survey prioritization, CMS has
Infection Control
relied on State Survey Agencies to perform
deficiencies, and
Focused Infection Control surveys of nursing
Quality Improvement
homes across the country. We are now
Activities in Nursing
initiating a performance-based funding
Homes”
requirement tied to the Coronavirus Aid,
Relief and Economic Security (CARES) Act
supplemental grants for State Survey
Agencies. Further, we are providing
guidance for the limited resumption of routine
survey activities.
CMS has revised the criteria requiring states
to conduct focused infection control surveys
due to the increased availability of resources
for the testing of residents and staff and
factors related to the quality of care.
CMS is providing Frequently Asked
Questions related to health, emergency
preparedness and life-safety code surveys.
CMS is also enhancing the penalties for
noncompliance with infection control to
provide greater accountability and
consequence for failures to meet these basic
requirements.
06/04/2020 CMS QSO 20-32-NH, Nursing Home COVID-19 Information: CMS
re “Release of will post COVID-19 data submitted by
COVID-19 Nursing facilities via the Centers for Disease Control
Home Data” and Prevention (CDC) National Healthcare
Safety Network (NHSN). The information will
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also be available at
https://data.cms.gov/Covid19-nursing-home-
data.
06/04/2020 CMS QSO 20-33-NH, Nursing Home Inspections: CMS will post
dated “Posting of health inspection (i.e., surveys) results that
Nursing Home were conducted on or after March 4th, 2020,
Inspections” which is the first date that CMS altered the
way that inspections are scheduled and
conducted. This includes inspections related
to complaints and facility-reported incidents
(FRIs) that were triaged at the Immediate
Jeopardy (IJ) level, and the streamlined
Infection Control inspection process that was
developed based on the guidance for
preventing the spread of COVID-19. • The
information will be available in the “Spotlight”
section of the Nursing Home Compare home
page on June 4th, 2020.
06/25/2020 CMS QSO 20-34-NH, Changes to the Nursing Home Compare
“Changes to Staffing Website and Five Star Quality Rating
Information and System: • Staffing Measures and Ratings
Quality Measures Domain: On July 29, 2020, Staffing
Posted on the Nursing measures and star ratings will be held
Home Compare constant, and based on data submitted for
Website and Five Star Calendar Quarter 4 2019. o Also, CMS is
Quality Rating System ending the waiver of the requirement for
due to the COVID-19 nursing homes to submit staffing data
Public Health through the Payroll-Based Journal System.
Emergency” Nursing homes must submit data for
Calendar Quarter 2 by August 14, 2020. •
Quality Measures: On July 29, 2020, quality
measures based on a data collection period
ending December 31, 2019 will be held
constant.
07/09/2020 CMS QSO-20-28-NH • Nursing Home Compare website & Nursing
REVISED Home Five Star Quality Rating System: We
are announcing that the inspection domain
re: “Nursing Home
will be held constant temporarily due to the
Five Star Quality
prioritization and suspension of certain
Rating System
surveys, to ensure the rating system reflects
updates, Nursing
fair information for consumers. • Posting of
Home Staff Counts,
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Frequently Asked surveys: CMS will post a list of the surveys
Questions, and conducted after the prioritization of certain
Access to surveys, and their findings, through a link on
Ombudsman the Nursing Home Compare website. •
(REVISED)” Nursing Home Staff: CMS is publishing a list
of the average number of nursing and total
staff that work onsite in each nursing home,
each day. This information can be used to
help direct adequate personal protective
equipment (PPE) and testing to nursing
homes. • Access to Ombudsman: We are
reminding facilities that providing
ombudsman access to residents is required
per 42 CFR § 483.10(f)(4)(i) and per the
Coronavirus Aid, Relief, and Economic
Security Act (CARES Act). • Frequently
Asked Questions (FAQ): We are releasing a
list of FAQs to clarify certain actions we have
taken related to visitation, surveys, waivers,
and other guidance.
08/17/2020 CMS QSO-20-35- • CMS is revising guidance on the expansion
ALL, dated of survey activities to authorize onsite revisits
“Enforcement Cases and other survey types. • CMS is providing
Held during the guidance to State Survey Agencies (SAs) on
Prioritization Period resolving enforcement cases: CMS is
and Revised Survey providing guidance on resolving enforcement
Prioritization” cases that were previously directed to be
held, and providing guidance on Civil Money
Penalty (CMP) collection. • Expanded Desk
Review Authority: CMS is temporarily
expanding the desk review policy to include
review of continuing noncompliance following
removal of Immediate Jeopardy (IJ), which
would otherwise have required an onsite
revisit from March 23, 2020, through May 31,
2020. • CMS is also issuing updated
guidance for the re-prioritization of routine
SA Clinical Laboratory Improvement
Amendments (CLIA) survey activities,
subject to the SA’s discretion, in addition to
lifting the restriction on processing CLIA
enforcement actions, and issuing the
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Statement of Deficiencies and Plan of
Correction (Form CMS-2567).
08/26/2020 CMS QSO-20-38-NH • On August 25, 2020, CMS published an
re “Interim Final Rule interim final rule with comment period (IFC).
(IFC), CMS-3401-IFC, This rule establishes Long-Term Care (LTC)
Additional Policy and Facility Testing Requirements for Staff and
Regulatory Revisions Residents. Specifically, facilities are required
in Response to the to test residents and staff, including
COVID-19 Public individuals providing services under
Health Emergency arrangement and volunteers, for COVID-19
related to Long-Term based on parameters set forth by the HHS
Care (LTC) Facility Secretary. This memorandum provides
Testing Requirements guidance for facilities to meet the new
and Revised COVID- requirements. • Revised COVID-19 Focused
19 Focused Survey Survey Tool -To assess compliance with the
Tool” new testing requirements, CMS has revised
the survey tool for surveyors. We are also
adding to the survey process the assessment
of compliance with the requirements for
facilities to designate one or more
individual(s) as the infection preventionist(s)
(IPs) who are responsible for the facility's
infection prevention and control program
(IPCP) at 42 CFR § 483.80(b). In addition,
we are making a number of revisions to the
survey tool to reflect other COVID-19
guidance updates.
08/26/2020 CMS QSO-20-37- • On August 25, 2020, an interim final rule
CLIA,NH with comment period (IFC) went on display at
the Federal Register. • CLIA regulations
re “Interim Final Rule
have been updated to require all laboratories
(IFC), CMS-3401-IFC,
to report SARS-CoV-2 test results in a
Updating
standardized format and at a frequency
Requirements for
Reporting of SARS- specified by the Secretary. • Failure to report
CoV-2 Test Results SARS-CoV-2 test results will result in a
by (CLIA) of 1988 condition level violation of the CLIA
Laboratories, and regulation and may result the imposition of a
Additional Policy and Civil Money Penalty (CMP) as required under
Regulatory Revisions §§ 493.1804 and 493.1834. • Long-Term
in Response to the Care (LTC) Enforcement requirements at 42
CFR part 488 have been revised to include
requirements specific to the imposition of a
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COVID-19 Public CMP for nursing homes that fail to report
Health Emergency” requisite COVID-19 related data to the
Centers for Disease Control and Prevention
(CDC) National Healthcare Safety Network
(NHSN) per §483.80(g)(1) and (2). • LTC
Facility Testing Requirements for Staff and
Residents- Facilities are required to test staff
and to offer testing to all nursing home
residents.
09/17/2020 CMS QSO-20-39, re • Visitation Guidance: CMS is issuing new
“Nursing Home guidance for visitation in nursing homes
Visitation - COVID-19” during the COVID-19 PHE. The guidance
below provides reasonable ways a nursing
home can safely facilitate in-person visitation
to address the psychosocial needs of
residents. • Use of Civil Money Penalty
(CMP) Funds: CMS will now approve the use
of CMP funds to purchase tents for outdoor
visitation and/or clear dividers (e.g., Plexiglas
or similar products) to create physical
barriers to reduce the risk of transmission
during in-person visits.
10/05/2020 CMS QSO-21-02-NH • The Centers for Medicare & Medicaid
re “Compliance with Services (CMS) is affirming the continued
Residents’ Rights right of nursing home residents to exercise
Requirement related their right to vote. • While the COVID-19
to Nursing Home Public Health Emergency has resulted in
Residents’ Right to limitations for visitors to enter the facility to
Vote” assist residents, nursing homes must still
ensure residents are able to exercise their
Constitutional right to vote. • States,
localities, and nursing home owners and
administrators are encouraged to collaborate
to ensure a resident’s right to vote is not
impeded.
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Appendix III: COVID-Era Sub-Regulatory Guidance (cont’d)
B. New York State Department of Health
03/6/2020 “Visitor Signage for Sign states, “ATTENTION ALL VISITORS

Posting at Nursing DO NOT VISIT if you have fever, shortness
Homes” of breath, cough, nasal congestion, runny
nose, sore throat, nausea, vomiting and/or
diarrhea.”
03/8/2020 “Notification Many asymptomatic individuals can carry
Regarding Visitor COVID-19 (“coronavirus”), and there have
Restrictions for New been confirmed coronavirus cases in your
Rochelle-Area local community.
Nursing Homes and
Effective immediately, to minimize resident
ACFs”
exposure, all nursing homes and adult care
facilities (ACFs) in the New Rochelle area
must suspend all visitation, including by
family and other resident guests. Only staff,
residents, and staff of the local and State
Health Departments should be permitted
access to your facility, except in an
emergency, through March 22, 2020.
03/11/2020 “Revised COVID-19 Provides guidance on preventing exposure to
Guidance for Nursing and spread of illness at the nursing home;
Homes” requires screening, signage addressing
visitation restrictions; precautionary or
mandatory quarantine, based on symptoms,
for staff who have been potentially exposed
to someone with confirmed COVID-19, or to
someone who is a person under investigation
(PUI) for COVID-19 and furlough for 14 days
following the exposure; provides guidance for
Standard, Droplet and Contact precautions
(applicable for the care of all residents) at:
https://www.cdc.gov/coronavirus/2019-
ncov/healthcare-facilities/prevent-spreadin-
long-term-care-facilities.html and procedures
for donning/ doffing PPE at:
https://www.cdc.gov/hai/pdfs/ppe/ppe-
sequence.pdf; hand hygiene practices and
respiratory hygiene/cough etiquette; daily;
frequent cleaning and disinfection of
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commonly touched environmental surfaces;
conservation of PPE, including
“administrative controls on the availability of
masks by centrally holding and allocating
masks to staff as necessary.”
03/13/2020 COVID-19 Cases in Provides guidance to prevent the introduction
Nursing Homes and of COVID-19 into NHs and ACFs, including
ACFs the immediate suspension of all visitation
except when medically necessary (i.e. visitor
is essential to the care of the patient or is
providing support in imminent end-of-life
situations) or for family members of residents
in imminent end-of-life situations, and those
providing hospice care; the provision of other
methods to meet the social and emotional
needs of residents, such as video calls;
signage notifying the public of the
suspension of visitation and proactively notify
resident family members; health checks for
all healthcare personnel and other facility
staff at the beginning of each shift; use of a
facemask while within 6 feet of residents.
Extended wear of facemasks is allowed;
facemasks should be changed when soiled
or wet and when HCP go on breaks.
Facilities should bundle care and minimize
the number of HCP and other staff who enter
rooms to reduce the number of personnel
requiring facemasks.
03/20/2020 Recommendations to Recommendations to support resident
Protect Nursing Home physical health, including cancellation of
Residents communal dining and group activities;
restriction of visitors and non-essential health
care personnel, except for certain
compassionate care situations, such as
imminent end-of life situation; allow all
provisional employees of nursing homes to
work with supervision; implement active
health screening every shift, at least every
eight hours or as needed of residents and
staff for fever and respiratory symptoms;
implement health care worker daily alerts;
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review and revision of processes for
interacting with vendors and others;
creating/increasing listserv communication to
update families, with staff to serve as the
primary contact to families for inbound calls
and conducting regular outbound calls to
keep families up to date; advising visitors
and others entering the nursing home to
monitor for signs and symptoms of
respiratory infection for at least 14 days after
exiting the facility.
03/21/2020 Respiratory Illness in Recent testing of residents and healthcare
Nursing Homes and workers (HCWs) of nursing home and adult
ACFs in Areas of care facilities in New York City, Long Island,
Sustained Community Westchester and Rockland counties has
Transmission of revealed that symptoms of influenza-like
COVID-19 illness are very often determined to be
COVID-19 in facilities located in areas with
sustained community transmission. As a
result, ANY febrile acute respiratory illness or
clusters of acute respiratory illness (whether
febrile or not) in NHs and ACFs in New York
City, Long Island, Westchester County, or
Rockland County should be presumed to be
COVID-19 unless diagnostic testing reveals
otherwise. Testing of residents and HCWs
with suspect COVID-19 is no longer
necessary and should not delay additional
infection control actions.
All facilities in areas of the state with
sustained community transmission of
COVID-19 including New York City, Long
Island, Westchester and Rockland with
residents who have febrile acute respiratory
illness or with clusters of acute respiratory
illness should follow the guidance from the
NYSDOH advisory issued on March 13, 2020
for COVID-19 Cases in Nursing Homes and
Adult Care Facilities in the section entitled “If
there are confirmed cases of COVID-19 in a
NH or ACF”.
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NHs and ACFs outside of these areas should
continue to pursue testing of residents and
HCWs with suspect COVID-19 to inform
control strategies.
03/25/2020 Hospital Discharges COVID-19 has been detected in multiple
and Admissions to communities throughout New York State.
Nursing Homes There is an urgent need to expand hospital
capacity in New York State to be able to
meet the demand for patients with COVID-19
requiring acute care. As a result, this
directive is being issued to clarify
expectations for nursing homes (NHs)
receiving residents returning from
hospitalization and for NHs accepting new
admissions.
Hospital discharge planning staff and NHs
should carefully review this guidance with all
staff directly involved in resident admission,
transfer, and discharges.
During this global health emergency, all NHs
must comply with the expedited receipt of
residents returning from hospitals to NHs.
Residents are deemed appropriate for return
to a NH upon a determination by the hospital
physician or designee that the resident is
medically stable for return.
Hospital discharge planners must confirm to
the NH, by telephone, that the resident is
medically stable for discharge.
Comprehensive discharge instructions must
be provided by the hospital prior to the
transport of a resident to the NH.
No resident shall be denied re-admission or
admission to the NH solely based on a
confirmed or suspected diagnosis of COVID-
19. NHs are prohibited from requiring a
hospitalized resident who is determined
medically stable to be tested for COVID-19
prior to admission or readmission.
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03/26/2020 March 26th COVID-19 Powerpoint presentation.
Infection Control
Guidance for Nursing
Homes and ACFs
Webinar Slides
03/31/2020 Updated Protocols for This advisory supersedes guidance from the
Personnel in New York State Department of Health to
Healthcare and Other Hospitals, Nursing Homes (NHs) and Adult
Direct Care Settings Care Facilities (ACFs) pertaining to the
to Return to Work COVID-19 outbreak, released on March 16,
Following COVID-19 2020, and further clarifies the updated
Exposure or Infection guidance issued on March 28, 2020.
(Nursing Homes Only
Provides guidance to circumstances under
– Superseded by July
which entities may allow healthcare
24th Guidance for
personnel (HCP) to work after exposure to
Other
confirmed or suspected case of COVID-19,
Settings/Services)
or who have traveled internationally in the
past 14 days, whether healthcare providers
or other facility staff.
04/03/2020 COVID-19 Guidance
for Inpatient,
Rehabilitation, and
Skilled Nursing
Facilities and Other
Health Care Providers
on Suspension of
Health Plan Utilization
Review Requirements
04/04/2020 “Guidance for Strongly encourages the implementation of a
Resident and Family communication protocol for both residents
Communication in and their families, loved ones, and guardians
ACFs and Nursing unable to visit the resident during the
Homes” COVID-19 pandemic and offers best
practices to consider.
04/04/2020 “In Response to Provides guidance and recommendations
COVID-19, CMS Has relating to CMS’s temporary waiver of nurse
Released 1135 aide training and certification requirements to
Waivers to Address assist with potential staffing challenges
an Adequate Supply during the COVID-19 pandemic.
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of Workforce Staff and
Facilities”
04/11/2020 “Nursing Home
COVID-19
Preparedness Self-
Assessment
Checklist”
04/19/2020 DAL: BFD 20-04, In response to multiple inquiries regarding
Updated COVID-19 the management of decedent personal
Guidance for Health effects during the COVID-19 public health
Care Facilities emergency, the NYS Department of Health
Regarding (the Department) Bureau of Funeral Directing
Management of is distributing the following guidance from the
Decedent Personal Office of the Chief Medical Examiner’s
Effects (OCME) Biological Incident Fatality Surge
Plan for Managing In- and Out-of-Hospital
Deaths, to assist health care facilities in New
York City (NYC).
04/19/2020 “Discontinuation of Provides guidance on the discontinuation of
Isolation for Patients isolation for patients with COVID-19 when
with COVID-19 Who they meet the specified conditions.
Are Hospitalized or in
•
Nursing Homes, Adult
Care Homes, or Other
Congregate Settings
with Vulnerable
Residents”
04/19/2020, CPSO DAL 20-01 Due to the COVID-19 public health
“Guidance for Nursing emergency, the New York State Department
Homes on Managing of Health (DOH) is distributing the following
Resident Deaths guidance to assist nursing homes in
During the COVID-19 processing the removal of decedents. This
Outbreak” guidance is intended for nursing homes that
may be experiencing an increase in resident
deaths, as well as nursing homes that may
be relying upon new staff to perform this
sensitive responsibility.
04/19/2020, DAL 20-01, Guidance Provides guidance and offers “best practices”
for Resident and on innovative ways to keep residents
Family connected to their families and communities.
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Communication in
ACFs and Nursing
Homes
04/29/2020 Infection Control and This letter is intended to serve as a reminder
Cohorting of facility obligations under the Public Health
Requirements Law and regulations to ensure that all
residents receive the care they need.
Specifically, pursuant to 10 NYCRR section
415.26, nursing homes must only accept and
retain those residents for whom the facility
can provide adequate care.
04/29/2020 Extension of COVID- On March 16, 2020, the Centers for Disease
Related Work Control and Prevention (CDC) issued
Exclusion Period for guidance to address employees of
Nursing Home Staff healthcare facilities, including nursing
homes, suspected of or confirmed to be
positive for the COVID-19 virus (Criteria for
Return to Work for Healthcare Personnel
with Confirmed or Suspected COVID-19
(Interim Guidance)). Under the CDC
guidance workers could return to work at a
nursing home: “At least 3 days (72 hours)
have passed since recovery defined as
resolution of fever without the use of fever-
reducing medications and improvement in
respiratory symptoms (e.g., cough, shortness
of breath); and, At least 7 days have passed
since symptoms first appeared.” The CDC
updated their guidance to address
asymptomatic workers thereafter.
New York State Department of Health’s
guidance mirrored the CDC’s position –
however, going forward we will no longer
adhere to CDC’s standard on this issue, and
will instead require that nursing home
employees who test positive for COVID-19
but remained asymptomatic are not eligible
to return to work for 14 days from first
positive test date in any situation and will no
longer adhere to the shorter CDC timeframe.
Symptomatic nursing home employees may
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not return to work until 14 days after the
onset of symptoms, provided at least 3 days
(72 hours) have passed since resolution of
fever without the use of fever-reducing
medications and respiratory symptoms are
improving.
For those nursing homes facing staffing
difficulties the State of New York has
established an online portal that currently
includes more than 95,000 healthcare
workers across New York State and nation.
Four hundred nursing homes have been
invited to access the portal, and more than
200 have used the portal to date. Many
nursing homes are also working with partner
organizations, like SEIU-1199, to recruit staff
from the portal. We have also provided 400
nursing homes the opportunity to access for
free the full recruiting tools of Indeed, the
world’s largest job search engine, which has
identified 1,500 nurses who immediately
available to work in New York State. If your
nursing home needs additional assistance,
please contact
[email protected] or call
518-474-2012.
05/06/2020 “Pediatric Multi- The purpose of this health advisory is to (1)
System Inflammatory ensure providers are aware of the pediatric
Syndrome Potentially multi-system inflammatory syndrome
Associated with potentially associated with COVID-19 and (2)
COVID-19 in provide guidance on reporting of cases to
Children” NYS DOH and testing of patients who
present with this disease.
05/11/2020 “Hospital Discharges This Directive supplements the prior
and Admissions to Department of Health Advisory concerning
Nursing Homes and hospital discharges to nursing homes (NHs)
ACFs (Addendum to and adult care facilities (ACFs), as well as
May 11th DAL - the DAL sent on April 29, 2020.
Required COVID-19
To this end, hospital discharge planners
Testing for All Nursing
must confirm to the facility to which the
patient is being discharged (whether NH or
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Home and ACF ACF), by telephone, that the resident is
Personnel)” medically stable for discharge.
Comprehensive discharge instructions must
be provided by the hospital prior to the
transport of a resident to the NH or ACF, and
all discharge planning requirements must be
followed.
In accordance with 10 NYCRR 415.26, NHs
must only accept and retain those residents
for whom the facility can provide adequate
care. ACFs have an obligation to provide
care to residents and ensure their life, health,
safety and welfare are protected, pursuant to
Social Services Law § 461-c(2-a) and 18
NYCRR 487.7 and 488.7. Therefore, no
hospital shall discharge a patient to a NH or
ACF unless the facility administrator has first
certified that they are able to provide that
patient with adequate care. In addition,
hospitals must test any patient who may be
discharged to a NH or ACF for COVID-19,
using a molecular test for SARS-Cov-2 RNA.
No hospital shall discharge a patient who has
been diagnosed with COVID-19 to a NH or
ACF, until that patient has received one
negative test result using such testing
method.
If a NH or ACF is not able to provide
adequate care to a resident at any time
during that resident’s stay, the NH or ACF
must call their respective regional office of
the Department of Health to provide
necessary information and assist with any
relocation needs, including but not limited to
assistance with arranging transportation to
an alternate facility that can provide
adequate care for the resident.
However, with the exception of patients of
hospitals who have not yet tested negative, a
NH or ACF cannot deny admission of a
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resident based solely on a resident’s COVID-
19 diagnosis.
05/11/2020 “Required COVID-19 Provides guidance on EO 202.30, which
Testing for All Nursing requires periodic COVID-19 testing of all
Home and Adult Care personnel in nursing homes and adult care
Facility Personnel” facilities. This DAL explains the requirements
of the Executive Order and provides
additional direction and guidance on how to
implement its requirements.
05/12/2020 “Nursing Home and
ACF Staff Testing
Requirement FAQ #1
– May 12, 2020”
05/13/2020 Nursing Home Provides guidance on resident cohorting.
Cohorting FAQs
ACF Staff Testing
Requirement FAQ
Update – May 19,
2020 (Superseded by
June 24, 2020
Update)”
05/19/2020, “DOH Issues FAQ on Nursing home members encouraged to
“Cohorting” of review and operationalize guidance.
Residents”
ACF Staff Testing
Requirement FAQ
Update – June 24,
2020”
07/10/2020 “COVID-19 Cases in
Nursing Homes and
ACFs (Revised July
10, 2020)”
07/17/2020 “Civil Monetary
Penalty Reinvestment
Funds:
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Communication
Devices”
07/17/2020 “Notification of Non-
emergent Resident
Transfers to the
Hospital and SNFs”
07/20/2020 “Civil Monetary Grant awards would aid in purchasing
Penalty Reinvestment devices for resident communication.
Funds Available to
Nursing Homes”
07/20/2020 “DOH Issues DOH requires notification prior to certain
Guidance on Resident nursing home transfers.
Transfers”
07/20/2020 “DOH Issues DOH requires notification prior to certain

Guidance on Resident nursing home transfers.
Transfers”
08/20/2020, “Required Annual
Pandemic Emergency
Plan for All Nursing
Homes”
09/01/2020 “Amended PPE
Requirements for
Nursing Homes”
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C. Office of Mental Health
Date Title Addressee(s) Summary/important points

03/10/2020 Interim Unspecified. How to perform cleaning and disinfection
Guidance for in “high risk locations,” in public and
Cleaning and private facilities.
Disinfection
of Public and
Private
Facilities for
COVID-19
(Note:
NYSDOH
Guidance)
03/11/2020 Guidance for Unspecified. This guidance is based on CDC and
NYS NYSDOH guidelines for COVID-19
Behavioral infection prevention and control and
Health management of Persons Under
Programs Investigation (“PUI”).
(funded,
Outlines screening protocol for patients
operated,
(international travel, contact with people
licensed,
suspected or confirmed of COVID-19,
regulated, or
whether they are currently exhibiting
designated
COVID-19 symptoms such as cough,
providers)
fever, sore throat, or shortness of breath)
(Note: This and what to do when patients do not
guidance was clear the screening process.
referenced in
Outlines the visitation process for any
the
program setting (pre-screening process
Consolidated
and procedure for handling visitors who
Telemental
do not clear the screening process,
Health
unscheduled visitation procedures, etc.)
Guidance
issued
3/30/2020).
03/13/2020 Provider Unspecified. Encourage all providers to develop or
Memo – revise their continuity of operations plans
Maintaining in light of COVID-19, particularly
Continuity of considering the ability of individuals to
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Operations obtain medications, access to mental
Plans and health and substance use disorder
Reporting treatment, and access to other required
Disruptions in services.
Services
03/14/2020 COVID-19 Medicaid Face-to-face requirements for Health
Guidance for Health Home providers are temporarily waived
Health Homes until rescinded by the NYSDOH, unless
Homes Serving medically necessary. Instead, Health
Adults and Home providers may use telehealth
(Note:
Children, services.
NYSDOH
Care
Guidance) In the event of face-to-face visits,
Coordination
members must be screened for COVID-
Organization/
19 symptoms (fever, cough, shortness of
Health
breath), their travel or their close
Homes and
contacts’ travel outside of the United
Care
States in the last 14 days, their contact
Management
within the last 14 days with people with
Agencies
suspected or confirmed COVID-19. If the
member screens positive, they should be
referred to the appropriate medical
personnel. If the member screens
negative, the face-to-face visit may
continue.
Agencies should implement policies to
screen staff for COVID-19 symptoms
and contacts before face-to-face visits
with members. Staff who are ill upon
screening should be sent home and
should either contact their primary care
physician or seek immediate care, if
necessary. Staff with symptoms of
illness should not return to work until
they have completely recovered.
Agencies must strictly enforce their
illness and sick leave policies. Staff with
suspected or confirmed COVID-19
exposure may be placed under
movement restrictions by public health
officials.
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03/14/2020 OMH Facility Effective immediately, all visitors to
Psychiatric Directors, adults in Psychiatric Center civil and
Center Visitor Clinical forensic inpatient units, as well as all
Restriction Directors, students and volunteers who have no
Guidance Chief Nursing clinical responsibilities, are restricted.
(Visitor, Officers This does not apply to children and
volunteer, adolescents living in Psychiatric Center
and student inpatient units, who may have visitors
restrictions at who are subject to previously issued
Psychiatric screening protocols. Staff must notify
Centers) families of staff of these restrictions as
soon as possible. Psychiatric Centers
must identify protocols for exceptions to
these restrictions.
Psychiatric Centers “must ensure that
patients have easily available means to
stay in contact with family and others.
This includes ready access to phones,
either through cellular or land lines.
Additionally, patients who are deemed
appropriate for the use of internet social
media accounts should have the means
to access them as needed. Every
inpatient unit must identify multiple ways
for patients to communicate.”
These restrictions do not apply to
residential care units on Psychiatric
Center grounds.
03/18/2020 Addendum Child and Limits visitors to children and
OMH Adolescent adolescents on inpatient units to “only
Psychiatric Inpatient those who are essential to the care and
Visitor Program wellbeing of the patient.” Visitors who
Volunteer Facility are approved must be screened, limited
Restrictions Directors, to no more than two at a time, and must
(addendum to Clinical be educated about infection control and
visitor, Directors, mitigation precautions. Social distancing
volunteer, Chief Nursing measures must be implemented in
and student Officers visiting spaces and visiting spaces must
restrictions at be cleaned and disinfected in between
Psychiatric visits. As stated above, psychiatric
Centers with centers must ensure multiple, easily
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focus on accessible methods of communication,
visitors to including access to social media
child and accounts when appropriate.
adolescent
patients)
03/20/2020 Admissions Unspecified. The State expanded the definition of
and “telemental health,” allowing essentially
Continuity of all staff in OMH licensed, funded, and
Care designated programs and services to
Advisory provide service using telemental health.
This includes a waiver of the in-person
initial assessment requirement in 14
NYCRR Part 596.6(b)(1), which can now
be completed via telemental health
during the COVID-19 emergency.
Housing providers should screen and

accept new admissions where there are
vacancies to support the discharge of
individuals from more intensive facilities.
Allowed verbal consent for admissions
and treatment/service plans and waived
face-to-face requirements for behavioral
health services. Ability to provide face-
to-face services should be maintained
for when it is safe and necessary to do
so.
03/20/2020 Essential Unspecified. OMH authorized, operated, licensed,
Business designated, or funded service providers
Letter are essential businesses that are exempt
from the in-person workplace restrictions
imposed on businesses and nonprofit
entities by Governor Cuomo’s Executive
Order 202.7 (effective March 21, 2020 at
8:00 p.m.), and should therefore remain
operational to provide mental health
services for those under its care and
custody, including administrative offices
and employees performing essential
agency functions.
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03/25/2020 Frequently Not-For-Profit Provides answers to questions
Asked Supportive regarding:
Questions Housing state contract requirements; resident
from Providers screening protocols; quarantine protocol
Supportive for single room occupancy (“SRO”)
Housing residents; provision of personal
Providers Re: protective equipment (“PPE”); screening
COVID-19 visitors; telemental health guidance;
sending clients for testing; cleaning
supplies
03/30/2020 OMH COVID- Unspecified. Applies to OMH licensed, funded, or
19 approved programs/agencies.
Consolidated
Includes expanded definitions for the
Telemental
terms “telemental health” and
Health
“telemental health practitioner” (section
Guidance
4), billing modifiers (section 5), guidance
(Use of
for service delivery and billing for OMH-
Telephone
licensed programs and OMH-designated
and Two-way
services (section 6), OMH-licensed or
Video
funded residential programs (section 7),
Technology
service delivery for OMH-funded
by OMH-
programs (section 8), Comprehensive
Licensed,
Psychiatric Emergency Programs
Funded or
(“CPEP”) and Inpatient Programs
Designated
(section 9), guidance for the prescription
Providers and
of controlled substances (section 10),
Clients
and consent for treatment and client
Affected by
signatures on treatment plans.
the COVID-
19 Pandemic)
03/30/2020 Self- Unspecified. Must certify:
Attestation of
“1. That the practitioner(s) will possess a
Compliance
current and valid license, permit, limited
to Offer
permit or other credential to the extent
Telemental
required in NYS to deliver the service.
Health
Services 2. That transmission linkages on which
Telemental Health Services will be
performed, will be dedicated, secure,
and meet minimum federal and NYS
requirements.
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3. That confidentiality will be maintained
as required by New York State Mental
Hygiene Law Section 33.13 and 45 CFR
Parts 160 and 164 (HIPAA Privacy
Rules). (HIPAA confidentiality
requirements have been relaxed to
permit service delivery via telehealth.
NYS confidentiality requirements found
in MHL 33.13 remain in effect and apply
to all programs and services regulated
by OMH, but do not prohibit service
delivery via telehealth.)
4. That claim modifiers “95” or “GT” will
be used on each claim line that
represents a service via telemental
health.
5. An understanding that this approval is
time-limited and effective only during the
disaster emergency, and once the
disaster emergency has ended the
formal approval process will go back into
effect.”
04/17/2020 Interim Unspecified. Modifies background check process for
Background OMH licensed, funded, or approved
Check programs. The purpose of the guidance
(Guidance for is to respond to staff shortages, but any
Implementati OMH provider can still maintain the
on of standard background check process.
Executive
Staff Members Currently Employed by
Order 202.13
an OMH Provider:
Provisions
Regarding Current OMH employees may bypass a
Background new Criminal Background Check, Staff
Checks) Exclusion Check, or Statewide Central
Register Check. Authorized programs
must complete the Executive Order
(“EO”) 202.13 Criminal Background
Check Request form for the prospective
employee and send this form to OMH.
OMH will then send this form to the
Justice Center, who will review the
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information and advise OMH (within one
business day unless additional
information is requested) about whether
the individual may be hired under EO
202.13. If they are not hired under EO
202.13, they should be treated as a new
staff member (see below). After hearing
from the Justice Center, OMH must
communicate the decision within 24
hours to the authorized program via
phone or email. Employees who
continue to work in the authorized
program on a regular basis will be
required to complete an updated criminal
background check as soon as
practicable.
Staff Members Currently Employed by a
Provider of Another State Oversight
Agency:
Current employees of Office of Addiction
Services and Supports (“OASAS”)
certified, funded, or authorized
programs, Office for People with
Developmental Disabilities (“OPWDD”)
or their approved providers, or Office of
Children and Family Services (“OCFS”)
operated, licensed, or certified programs
may bypass a new Criminal Background
Check, Staff Exclusion Check, or
Statewide Central Register Check.
These providers should follow the
process outlined above, and regular
employees are also subject to an
updated criminal background check.
New Staff Members Not Otherwise
Employed by an Approved Provider
(those who have not completed a
background check)
These employees may work
unsupervised as long as they do not
appear on the Staff Exclusion List and
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have completed the Executive Order
202.13 Criminal History Information
Attestation form. Unsupervised contact
should be limited as much as possible.
Article 23-A of the NYS Correction Law
will be considered in the hiring process.
These employees are still required to
complete all other pre-employment
checks.
04/19/2020 Discontinuati Hospitals, The NYSDOH suggests two testing
on of Isolation Nursing strategies.
for Patients Homes, Adult
The Non-Test-Based Strategy:
with COVID- Care Homes,
19 Who Are and Other Requires individuals to meet three
Hospitalized Congregate criteria:
or in Nursing Settings
Homes, Adult Where 1. At least 72 hours have passed since
Care Homes, Populations recovery (e.g., no temperature greater
or Other Vulnerable to than or equal to 100.0 without the use of
Congregate COVID-19 fever-reducing medication);
Settings with Reside 2. Improvement of respiratory symptoms
Vulnerable (e.g., cough, shortness of breath); and
Residents
3. At least 14 days have passed since
(Note: the onset of COVID-19 symptoms.
NYSDOH
Guidance) Patients who meet these criteria but
remain symptomatic should be placed in
their own rooms or be cohorted with
other recovering residents of confirmed
COVID-19. These patients must remain
in their rooms and wear a facemask
when caregivers enter their rooms.
The test-based strategy (recommended
for severely immunocompromised
people):
To discontinue isolation, patients must
meet three criteria:
1. They must not have a fever without
the use of fever-reducing medication
(time is not specified);
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2. Their respiratory symptoms must have
improved; and
3. They must have two negative test
results that are taken at least 24 hours
apart.
For patients who were asymptomatic at
the time of their first positive test and
continue to be asymptomatic, evaluation
for discontinuation of isolation may begin
7 days after the first positive test.
04/20/2020 Effective Date Unspecified. The effective date for COVID-19-related
of OMH disaster emergency relief issued by
COVID-19 OMH is March 7, 2020.
Disaster
All telemental health and program,
Emergency
documentation, and billing guidance
Telemental
discussed may be operationalized
Health and
retroactive to March 7, 2020.
Program
Guidance
04/21/2020 Incident NYS Article New York State Incident Management
Reporting 31 Mental and Reporting System (NIMRS) has
and NIMRS Health been updated to include a new subtype
Updates Provider (“COVID-19 Related”) when reporting
Agencies; client deaths which can be attributed to,
NYS Article or are suspected to be related to,
28 Hospital COVID-19. This only applies to deaths
Provider that occurred since March 1, 2020 (this
Facilities; subtype cannot be used for deaths that
OMH- occurred prior to March 1, 2020).
Operated Incident reports that are closed should
Psychiatric be reopened and amended as
Center necessary.
Executive
OMH is not requiring providers to report
Directors,
suspected or confirmed COVID-19
Quality and
cases.
Risk
Management Providers should adhere to 14 NYCRR
Directors Part 524 regulations for all incident
reporting requirements.
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04/26/2020 DOH COVID- Health Care Testing is authorized by a health care
19 Revised Providers, provider when:
Testing Health Care
1. An individual is symptomatic or
Protocol Facilities, and
has a history of symptoms of COVID-19,
(Updated Local Health
especially if the individual is 70 years of
Interim Departments
age or older, is immunocompromised, or
Guidance:
has underlying health conditions;
Protocol for
COVID-19 2. An individual had close (within six
Testing feet) or proximate contact with another
Applicable to individual who is positive with COVID-19;
All Health
Care 3. An individual was under
Providers and precautionary or mandatory quarantine;
Local Health 4. An individual is a healthcare
Departments) worker, first responder, or another
essential worker who has direct contact
with the public while working; or
5. The facts and circumstances
surrounding an individual warrant testing
as determined by the treating clinician
and state/local department of health
officials.
Testing prioritization (in accordance with
Executive Order 202.19).
1. Symptomatic individuals in high-
risk populations (people who are
immunocompromised, people over 70
years of age, people with underlying
health conditions, patients in hospitals,
congregate care settings such as
nursing homes and long-term care
facilities, etc.).
2. Individuals who have had close
(within 6 feet) or proximate contact with
another individual who is COVID-19
positive.
3. Healthcare workers, first
responders, or personnel in nursing
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homes, long-term care facilities, or other
congregate care settings
4. Essential employees who directly
interact with the public while working
05/01/2020 NYS Unspecified. Poster notifying essential workers to get
Department tested.
of Health Includes health care workers, first
Essential responders, and workers in any position
Worker within a nursing home, long-term care
COVID-19 facility, or other congregate care settings
Testing and essential employees who directly
interact with the public while working.
05/14/2020 OMH PC Unspecified. Asks about:
COVID-19
Screening • Whether the patient was tested
State PC for COVID;
Admissions • For patients with confirmed
Form COVID: fever in the last 72 hours,
improvement of respiratory symptoms,
14 days since symptoms first appeared,
follow up negative test if tested;
• Direct contact with a person
suspected or confirmed with COVID-19;
• If patient (in the last 72 hours)
experienced a fever, respiratory and
other symptoms (such as cough,
headaches, sore throat, etc) and
whether they have comorbidities;
• Date(s) of COVID-19 virus
diagnostic PCR test if patient was
transferred from an article 28/31 hospital
inpatient settings to a state psychiatric
center.
06/05/2020 Temporary NYS Article To address staffing shortages, OMH is
Amendment 31 Mental temporarily waiving certain regulatory
to OMH Part Health provisions within 14 NYCRR Section
524 Provider 524.
Deadlines Agencies;
NYS Article
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28 Hospital “Effective June 4, 2020, the 45-day
Provider deadline for submission of investigative
Facilities; findings for Allegations of Abuse or
OMH- Neglect and Significant Incidents, as well
Operated as the holding of Incident Review
Psychiatric Committee (IRC) meetings, will be
Center temporarily extended to 60 days. This
Executive will allow for 15 additional days to submit
Directors, final reports and organize IRC. This
Quality and temporary amendment shall expire on
Risk July 31, 2020, unless extended or
Management terminated before such date.”
Directors
6/5/2020 Updated NYS Article Mental Health Treatment Standards:
Treatment 28/31
“During the COVID-19 emergency
Planning and Hospital
period, hospital-based mental health
Documentatio Psychiatry
programs may modify their inpatient
n Standards Providers
treatment programming as follows:
for Article
28/31 1. Hospital mental health programs
Hospital should follow their hospital-wide policies
Psychiatry regarding visitors.
Providers
2. Programs should cancel all
therapeutic, rehabilitative, and
recreational groups that do not align with
physical distancing and other mitigation
recommendations.
3. During individual sessions, if in-
person, clinicians and patients should
remain six feet apart.
4. Patients should be allowed to remain
in their rooms during the day and should
not be asked to remain in shared
settings. Programs should maximize the
space patients can occupy while on the
unit.
5. Programs should continue to provide
and even increase, where feasible, time
for outside activities. Patients should be
reminded to maintain at least six feet of
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distance from all other individuals while
outside.”
Prior guidance regarding use of
telemental health for removal and
retention pursuant to Article 9 of the
Mental Hygiene Law remains in effect
(evaluations or examinations may be
conducted using telemental health and
the use of telemental health for Article 9
removals will be considered the
equivalent to face-to-face evaluations or
examinations for the purposes of
meeting statutory requirements).
Prior guidance regarding seclusion and
restraint remains in effect (“the
requirements in NYCRR 526.4 requiring
a physician for the order and the in-
person, face-to-face examination of the
patient for restraint or seclusion may
temporarily be fulfilled by an order and
an in-person, face-to-face examination
by a licensed nurse practitioner or
physician assistant.”
Prior guidance regarding the use of
video and telephone technology for
treatment of patients remains in effect
(telemental health should be used for
routine treatment planning on hospital
inpatient mental health units”).
Prior guidance modifying documentation
requirements and discharge planning is
rescinded effective 6/8/2020.
06/25/2020 COVID-19 NYS Public Aimed at helping programs assess how
Infection Mental Health to resume some in-person services.
Control in Programs
Encourage providers to follow CDC
Reopening
guidelines on infection control and
Public Mental
prevention and post educational
Health
materials for patients and staff about
System Sites
social distancing, hand and respiratory
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hygiene, face coverings, cleaning and
disinfection, etc.
Infection Control Practices for
Outpatient, Support, and Certain
Emergency Programs (see guidance for
applicable programs and services)
Telemental Health: Encourages
utilization of HIPAA and 14 NYCRR 596-
compliant telemental health services, but
urges that programs maintain capacity
for in-person services for individuals who
cannot utilize telemental health services
or who need in person services. All
individuals should be screened for
COVID-19 like illnesses at every
telemental health appointment and
educated about infection control.
Guidance also includes general
information for in-person encounters,
such as information about screening
prior to appointments and protocol for
clinical services that are tailored to each
region’s phase of reopening.
For Phase 1 and 2 regions, this
guidance addresses:
Telecommuting/working from home for
staff; client screening protocol; whether
to take clients’ temperatures prior to
entering the facility and what to do if a
client has a fever of at least 100 degrees
Fahrenheit; protocol for providing
services (physical distancing, wearing a
mask, meeting clients in well-ventilated
spaces); face masks or face masks in
the facility (all clients should wear a
mask or cloth face covering and staff
should provide a surgical mask to clients
who do not bring a face covering); client
accompaniments/escorts; administration
of medications that require close
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physical contact; cleaning and
disinfecting of frequent-contact surfaces
and office space; physical distancing in
waiting rooms; provision of hand
sanitizer; how to safely maintain peer
socialization if necessary for clients’ well-
being.
For Phase 3 and 4 regions, this
guidance also notes:
Groups of ten clients or fewer can meet
indoors in a large, well-ventilated area
for at most an hour if they maintain
appropriate social distancing, wear
appropriate face coverings, and no
participant has COVID-19 like
symptoms. Larger groups may meet
outdoors if all participants wear
appropriate face coverings and maintain
social distancing. If COVID-19 infections
rise locally, these programs shall be
suspended until the number of local
infections fall.
Scheduled appointments should be
prioritized. Programs that continue drop-
in hours should maintain screening
procedures and physical distancing in
the facility.
Staff who must visit clients in their
homes must wear a mask or cloth face
covering during the visit, and the client
should be educated to wear a cloth face
covering. If the client lives with
individuals who are at high-risk of
COVID-19, staff may consider
acceptable alternatives such as taking a
walk with the client or having the visit
take place outside, if possible. Staff may
disengage from the contact if the client
or their family members refuse to
physically distance.
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Other recommendations are included,
such as instituting occupancy and
physical distancing policies for elevators,
tight workspaces, public bathrooms, etc.
Infection Control Practices for
Residential and Site-Based Programs
(see guidance for full list of applicable
programs)
1. General Guidance for mental health
housing programs:
Educate residents on infection control
and prevention measures such as
encouraging residents to stay in the
residence as much as possible,
maintaining six feet of distance from
others, proper hand and respiratory
hygiene, and wearing appropriate masks
or cloth face coverings; cancel social or
recreational outings where appropriate
social distancing cannot be maintained;
institute medical appointments via
telehealth services; limit all visitation that
is not necessary “to the direct support of
a resident’s health and wellness” and
institute visitor screening protocol;
encourage client reporting of COVID-19
like symptoms; etc.
2. Guidance on accepting new clients
including screening protocol; accepting
clients from Article 28 or Article 31
inpatient settings (“may require a
negative COVID-19 diagnostic PCR test
within 72 hours prior to transfer.
Programs may require the test result to
be sent prior to transfer”); how to handle
clients who previously tested positive for
COVID-19; what facilities may not
require as a condition of admission
(“programs may not require a negative
test result for clients coming from non-
inpatient hospital settings” and
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“programs may not require results of
serum antibody tests as a condition of
admission”); and isolation of new clients.
3. Guidance on responding to clients
who develop symptoms including
isolation, meal provision, bathroom
designation, staff support, notification to
local health department and how to
obtain testing, when to transport clients
to the hospital, how to handle other
clients who are high risk (older age and
who have comorbidities), cleaning and
disinfection, etc.
4. Guidance on responding to clients
who are returning from the hospital.
5. Guidance for Scattered-Site Programs
including visitation, cleaning and
disinfection, physical distancing,
telehealth to replace face-to-face
visitation, proper staff protocol when
face-to-face visits are necessary, etc.
6. Guidance for Child and Youth Serving
Residential Programs for when home-
time leave is appropriate.
Infection Control Practices for Programs
Based in Article 28 Hospitals
Follow the policies and protocols of
hospital’s infection control departments.
Infection Control Practices for Article 31
Private Psychiatric Inpatient Hospitals
Contact local OMH Field Office to
discuss infection control concerns.
Infection Control Best Practices During
Non-Emergent Transportation (applies to
all programs)
Includes appropriate face coverings for
staff and clients, preference for larger
vehicles to increase distance between
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staff and client, keeping windows open
for ventilation purposes, cleaning and
disinfection of the vehicle, provision of
hand sanitizer with at least 60% alcohol,
how to transport clients with confirmed or
suspected COVID-19 (when it is
unavoidable).
Guidance for Staff (applies to all
programs)
Includes staying home when sick;
wearing face coverings while at the
facility; in the event of staffing shortages,
when staff who have had direct contact
with suspected or confirmed cases of
COVID-19 may continue to work (lists 14
conditions); when symptomatic or
COVID-19 positive staff can return to
work; when to notify clients that they had
prolonged contact with staff and need to
be quarantined for 14 days, and
providing the local health department
with the names and contact information
of staff who are suspected or confirmed
with COVID-19.
06/30/2020 OMH-OASAS Unspecified. Requirements of all OMH and OASAS
Ambulatory Operated, Licensed, and Funded
and Programs:
Residential
When a client is either confirmed with
Program
COVID-19 or is suspected of having a
COVID-19
COVID-like illness (“CLI”), staff must
Testing,
notify the local health department
Record
(“LHD”). If feasible, newly symptomatic
Keeping, and
clients should be tested to determine
Notification
whether isolation or quarantine is
Instructions
necessary. If a staff member has
confirmed or suspected CLI, the program
must notify the LHD and the staff
member must be referred to their
healthcare provider for evaluation and
possible testing.
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Guidance for OMH and OASAS
Outpatient Programs
“1. Individuals who have known or
suspected COVID-like illness must be
reported to their LHD.
2. Notify the individual that they may be
contacted by their LHD to help determine
with whom they might have come into
contact.
3. Notify the LHD of all individuals (staff
and clients) who the agency is aware of
who had a close or proximate contact
with the individual within the agency
setting. Agency staff are not responsible
for determining any contacts outside of
the agency setting and are also not
responsible for calling individuals
identified as having contact in the
agency setting. Names of these
individuals should be given to the LHD,
which will conduct the formal contact
investigation and tracing. Agency staff
may need to help the LHD communicate
with clients.”
Guidance for Behavioral Health
Programs based in Article 28 Hospitals
Follow the contact tracing policies and
protocols of the hospital’s infection
control departments.
Guidance for Residential Programs
(OMH/OASAS operated, licensed,
and/or funded), Inpatient Programs in
licensed Article 31 hospitals, Addiction
Treatment Centers, and State-Operated
Psychiatric Centers
1. For each person with CLI or who tests
positive for COVID-19, record the
following, if possible: their name;
symptoms; the date their symptoms
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begin; whether they were in contact with
anyone who tested positive for COVID-
19; whether they have traveled outside
of their home/residence within the last 14
days (if yes, where); if hospitalized, what
hospital was the individual in and what is
the date of hospitalization; if tested, what
were the results, where was the test
done, what is the date the test was
administered, and when were the results
received; where is the individual
currently located; are they currently in
isolation or quarantine; whether the
individual has their own room and
whether they have had a roommate in
the last 14 days; and name and contact
of other individuals who may have come
into contact with the individual over the
last 14 days or who live and work in the
hospital or residence.
“2. Notify the individual that they will be
contacted by their LHD to help determine
with whom they might have come into
contact. Provide the collected
information to LHD staff.
3. For individuals who are too
symptomatic or cognitively impaired to
report their contacts, staff should do their
best to obtain as accurate information as
possible or assist LHD staff in
interviewing client. 4. Follow appropriate
program-specific guidance for managing
COVID-19 exposure in facility.
5. Program staff are not expected to
identify or conduct outreach to possible
exposed contacts outside the program
but should help LHD staff as much as
possible during LHD interviews to obtain
needed information.
6. Work with the LHD to determine next
steps and roles/responsibilities of the
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LHD and the Program to determine
which entity will monitor clients and staff
for the duration of time they are
expected to remain under isolation or
quarantine.”
07/07/2020 New York Unspecified. Provides answers to questions including
State Office but not limited to:
of Mental new referrals to community based
Health behavioral providers; service provision in
COVID-19 areas impacted by COVID-19;
Disaster notification to patients in residential
Emergency programs or clinics if a staff member
FAQ developed COVID-19 symptoms;
transporting COVID-19 patients; training
new and current staff for restraint
application while maintaining social
distancing in resident treatment facilities
(“RTFs”); housing programs/supported
housing; background checks; new staff;
telemental health guidance; etc.
11/12/20 NYS Unspecified 22 page manual with infection control
Infection recommendations for OMH operated and
Control licensed providers.
Manual for
Public Health
System
Programs
12/08/2020 Strategy for Facility Requires among other things that all
OMH patient Directors, psychiatric centers must immediately
and staff Clinical begin to implement rapid testing
testing Directors, procedures.
Chief Nursing
In Inpatient
Officers
and
Residential
Settings
12/10/2020 Updated Facility Memo supercedes earlier guidance.
Guidelines for Directors, Psychiatric centers should not have
Isolation Clinical policies delaying or canceling
Status, Directors, admissions or discharges based solely
Quarantine
171
12464388.3 5/5/2021
State and Chief Nursing upon a patient’s COVID-19 status.
COVID-free Officers Changes are:
units for
DOH instructions regarding prioritization
Patients in
of PPE in case of supply shortages:
Psychiatric
Cents and Instructions for Disinfection of face
Staff PPE shields.
policies
Expanded requirement for universal eye
protection in all patient-facing areas,
including COVID-free units, residences,
and outpatient settings.
12/20/2020 DOH OPWDD, Prioritization of Essential Health Care
Guidance OMH & and Direct Support Personnel as well as
OASAS High Risk Populations for COVID-19
Vaccinations.
172
12464388.3 5/5/2021
D. Office for People with Developmental Disabilities
Date Item Summary

OPWDD Guidelines for
Implementation of focuses on actions to be taken to address
Quarantine and/or prevention and preparedness,
03/11/2020 Isolation Measures at recommendations for quarantine and
State-Owned and isolation approaches per NYSDOH
Voluntary Providers in guidelines, and reporting and notification
Congregate Settings
Suspended all visitation except when
Health Advisory: COVID- medically necessary (i.e. visitor is essential
19 Cases in Intermediate to the care of the patient or is providing
03/14/2020 Care Facilities for support in imminent end-of-life situations) or
Individuals with for family members of residents in imminent
Intellectual Disabilities end-of-life situations, and those providing
Hospice care
Waiver enacted to permit restriction of
03/18/2020 EO 202.5 community outings for residents of such
facilities to reduce the spread of COVID-19
Waiver enacted to allow for temporary
deviations of/from an individual’s service
plan, which would otherwise outline
participation in day programming and other
03/18/2020 EO 202.5 community based served, and the
temporary relocation of individuals, in order
to maintain the health and safety of that
individual during this emergency period and
to the extent necessary
Encouraged clinics to develop a plan on
Article 16 Clinic
03/25/2020 education of staff, screening, use of
Considerations
telehealth, and use and supply of PPE
General Management of Explained that OPWDD would be following
Coronavirus (COVID-19) DOH recommendations and guidance for
03/25/2020 in Facilities or Programs management of quarantine/isolation
Operated and/or Certified (activity restrictions) and addressed
by OPWDD exposure mitigation and cleaning
12464388.3 5/5/2021
Guidance for Resident OPWDD adopted these DOH regulations
and Family for all OPWDD operated, certified, and
Communication in funded residences. This required facilities,
04/10/2020 among other things, to: 1) report confirmed
Adult Care Facilities cases of COVID-19 in the residence; 2)
(ACFs) and Nursing send period status reports; and 3) maintain
Homes (NHs) updated information on website.
Guidance issued by OPWDD explaining
that all Certified Residential Facilities must
have a process in place to expedite the
Advisory: Hospital
return of asymptomatic residents from the
Discharges and
04/10/2020 hospital and that “No individual shall be
Admissions to Certified
denied re-admission or admission to a
Residential Facilities
Certified Residential Facility based solely
on a confirmed or suspected diagnosis of
COVID-19.”
COVID-19 OPWDD-issued poster identifying COVID-

PROCEDURES 19 prevention and exposure mitigation
04/29/2020
strategies (hand hygiene, environmental
AND PRACTICES hygiene/disinfection, and use of PPE).
Revised visitation guidance to allow for
06/18/2020 additional visitation so long as specific
conditions
Home Visits for
Allowed for additional visits to the extent
Individuals Residing in
07/10/2020 that safe social distancing, masks, and
OPWDD Certified
“meticulous” hand washing were done.
COVID-19: Interim Placed requirements on visits by outside
Guidance for Non- employees, including use of PPE, log of all
09/15/2020
Emergency Site Visits of visitors and staff, social distancing, and
Certified Facilities screening.
COVID -19: Interim

Visitation Guidance for Allowed for visitation in supportive
10/28/2020 Certified “Supportive” residences
2
12464388.3 5/5/2021
Appendix IV
N.Y. Nursing Homes: Facility-Specific Detail Including COVID-19 Deaths, Staffing Levels
NH Facility NH PFI County COVID COVID COVID For Profit/ Number Staffing
Confirmed Confirmed Presumed Not-for- of Beds Levels
Deaths at Out of Deaths at profit Status in the
NH Facility NH Facility
Deaths of
NH
Residents
(Hospital,
Other)
A Holly Patterson 000534 Nassau 11 32 5 Not-for- 589 2 stars
Extended Care profit
Facility
Aaron Manor 000431 Monroe 20 0 0 For-Profit 140 2 stars
Rehabilitation and
Nursing Center
Absolut Center 000073 Cattaraugus 3 1 0 For-Profit 37 2 stars
for Nursing and
Rehabilitation at
Absolut Center 000278 Erie 42 23 0 For-Profit 370 2 stars
for Nursing and
Rehabilitation at
Absolut Center 000056 Broome 18 1 0 For-Profit 160 3 stars
for Nursing and
Rehabilitation at
Absolut Center 000588 Niagara 2 0 0 For-Profit 83 3 stars
for Nursing and
Rehabilitation at
Absolut Center 001658 Steuben 15 4 0 For-Profit 120 2 stars
for Nursing and
Rehabilitation at
Absolut Center 003370 Chautauqua 7 0 0 For-Profit 120 2 stars
for Nursing and
Rehabilitation at
Acadia Center for 000941 Suffolk 19 19 1 For-Profit 181 3 stars
Nursing and
Rehabilitation
Achieve Rehab 000962 Sullivan 4 7 0 For-Profit 140
and Nursing
Facility
Adira At 006250 Westchester 0 4 0 For-Profit 120 2 stars
Riverside
1
12415719.2 5/5/2021
Rehabilitation and
Nursing
Affinity Skilled 006460 Suffolk 10 9 6 For-Profit 280 2 stars
Living and
Rehabilitation
Center
Alice Hyde 000326 Franklin 3 3 0 Not-for- 135
Medical Center profit
Alpine 000364 Herkimer 12 2 0 For-Profit 80 3 stars
Rehabilitation and
Nursing Center
Amsterdam 001605 New York 14 18 45 Not-for- 409 3 stars
Nursing Home profit
Corp (1992)
Andrus On 001126 Westchester 7 4 10 Not-for- 197 2 stars
Hudson profit
Apex 000919 Suffolk 32 6 2 For-Profit 195 2 stars
Rehabilitation and
Care Center
Atrium Center for 001430 Kings 5 13 9 For-Profit 380 1 star
Rehabilitation and
Nursing
Auburn 000091 Cayuga 2 1 0 For-Profit 92 2 stars
Rehabilitation &
Nursing Center
Aurelia Osborn 000740 Otsego 10 0 0 Not-for- 130
Fox Memorial profit
Hospital
Autumn View 002956 Erie 41 6 0 For-profit 230 2 stars
Health Care
Facility, LLC
Avon Nursing 000387 Livingston 5 0 1 For-Profit 40 3 stars
Home, LLC
Bainbridge 001227 Bronx 3 8 8 For-Profit 200 2 stars
Nursing &
Rehabilitation
Center
Baptist Health 000843 Schenectady 5 2 0 Not-for- 262 2 stars
Nursing and profit
Rehabilitation
Center
Bayberry Nursing 001073 Westchester 2 0 0 For-Profit 60 4 stars
Home
Beach Gardens 003401 Queens 8 11 6 For-Profit 163 4 stars
Rehab and
Nursing Center
2
12415719.2 5/5/2021
Beach Terrace 000496 Nassau 3 2 0 For-Profit 182
Care Center
Beacon 001736 Queens 5 13 7 For-Profit 120 3 stars
Rehabilitation and
Nursing Center
Bedford Center 001409 Kings 9 2 8 For-Profit 200 3 stars
for Nursing and
Rehabilitation
Beechtree Center 000983 Tompkins 6 1 0 For-Profit 120
for Rehabilitation
and Nursing
Beechwood 000288 Erie 25 12 0 Not-for- 272 3 stars
Homes profit
Belair Care 000533 Nassau 6 1 2 For-Profit 102 5 stars
Center Inc.
Bellhaven Center 003423 Suffolk 7 15 0 For-Profit 240 2 stars
for Rehabilitation
and Nursing Care
Bensonhurst 001406 Kings 10 7 27 For-Profit 200 2 stars
Center for
Rehabilitation and
Healthcare
Berkshire Nursing 000877 Suffolk 2 4 1 For-Profit 175 2 stars
& Rehabilitation
Center
Beth Abraham 001218 Bronx 9 29 16 For-Profit 448 1 star
Center for
Rehabilitation and
Nursing
Bethany Gardens 000594 Oneida 4 0 0 For-Profit 100 2 stars
Skilled Living
Center
Bethany Nursing 001255 Chemung 5 4 0 Not-for- 120
Home and Health profit
Related Facility
Bethel Nursing & 007278 Westchester 5 12 7 Not-for- 200 3 stars
Rehabilitation profit
Center
Bethlehem 000027 Albany 9 4 0 For-profit 120 2 stars
Commons Care
Center
Bezalel 003156 Queens 8 11 1 Not-for- 120 2 stars
Rehabilitation and profit
Nursing Center
3
12415719.2 5/5/2021
Bishop 000656 Onondaga 26 20 22 For-Profit 440 2 stars
Rehabilitation and
Nursing Center
Boro Park Center 001403 Kings 10 41 22 For-Profit 504 3 stars
for Rehabilitation
and Healthcare
Briarcliff Manor 001128 Westchester 0 7 1 For-Profit 120 1 star
Center for
Rehabilitation and
Nursing
Bridge View 001673 Queens 9 7 12 For-Profit 200 2 stars
Nursing Home
Bridgewater 000050 Broome 26 15 0 For-Profit 356 2 stars
Center for
Rehabilitation &
Nursing, LLC
Brighton Manor 000446 Monroe 3 1 1 For-Profit 80 2 stars
Bronx Center for 001251 Bronx 5 13 13 For-Profit 200 1 star
Rehabilitation and
Healthcare
Bronx Gardens 004887 Bronx 6 23 14 For-Profit 199 2 stars
Rehabilitation and
Nursing Center
Bronx Park 001246 Bronx 7 16 14 For-Profit 240 1 star
Rehabilitation &
Nursing Center
Bronxcare Special 004501 Bronx 7 20 1 Not-for- 240 Not
Care Center profit available
Brookhaven 003928 Suffolk 7 10 0 For-Profit 160 5 stars
Health Care
Facility, LLC
Brookhaven 001703 Queens 1 19 6 For-Profit 298 2 stars
Rehabilitation &
Health Care
Center, LLC
Brooklyn Center 001395 Kings 4 6 11 For-Profit 281 3 stars
for Rehabilitation
And Residential
Brooklyn Gardens 007069 Kings 1 6 7 Not-for- 240 2 stars
Nursing & profit
Rehabilitation
Center
Brooklyn United 001368 Kings 2 0 13 Not-for- 120 2 stars
Methodist Church profit
Home
4
12415719.2 5/5/2021
Brooklyn-Queens 000277 Kings 3 3 5 For-Profit 140 1 star
Nursing Home
Brookside 000949 Suffolk 8 4 4 For-Profit 353 Not
Multicare Nursing available
Home
Brothers of Mercy 000296 Erie 19 4 0 Not-for- 240 3 stars
Nursing Home & profit
Rehabilitation
Center
Buena Vida 006248 Kings 0 14 5 For-Profit 240 1 star
Continuing Care
& Rehab Center
Buffalo Center for 003012 Erie 18 7 2 For-Profit 200 2 stars
Rehabilitation and
Nursing
Buffalo 000633 Erie 2 10 0 For-Profit 95 3 stars
Community
Healthcare Center
Bushwick Center 004037 Kings 7 1 4 For-profit 225 2 stars
for Rehabilitation
and Health Care
Campbell Hall 002544 Orange 5 5 1 For-Profit 134 2 stars
Rehabilitation
Center INC
Cantebury Woods 007789 Erie 6 8 0 Not-for- 50 5 stars
profit
Capstone Center 000488 Montgomery 15 0 0 For-Profit 120 2 stars
for Rehabilitation
and Nursing
Carillon Nursing 000920 Suffolk 27 6 19 For-Profit 315 2 stars
and Rehabilitation
Center
Caring Family 003948 Queens 5 3 13 For-Profit 183 2 stars
Nursing and
Rehabilitation
Center
Carmel Richmond 001755 Richmond 61 19 2 Not-for- 300 2 stars
Healthcare and profit
Rehabilitation
Center
Carthage Center 000381 Jefferson 15 1 0 For-Profit 90 2 stars
for Rehabilitation
and Nursing
Casa Promesa 005567 Bronx 0 11 0 Not-for- 108 4 stars
profit
5
12415719.2 5/5/2021
Canton Park 001380 Kings 2 4 3 For-Profit 119
Rehabilitation and
Nursing Center,
LLC
Catskill Regional 000840 Sullivan 3 0 0 Not-for- 64
Cayuga Nursing 000984 Tompkins 2 0 0 For-Profit 144
and Rehabilitation
Center
Cedar Manor 001087 Westchester 5 20 9 For-Profit 153 2 stars
Nursing &
Rehabilitation
Center
Center Island 000560 Nassau 5 5 21 For-Profit 202 2 stars
Healthcare
Central Park 000654 Onondaga 11 6 4 For-Profit 160 2 stars
Rehabilitation and
Nursing Center
Chapin Home for 001715 Queens 1 5 2 Not-for- 220 4 stars
The Aging profit
Charles T Sitrin 000620 Oneida 1 0 0 Not-for- 187 4 stars
Health Center profit
INC
Chasehealth 000126 Chenango 23 2 0 Not-for- 80
Rehab and profit
Residential Care
Chautauqua 000099 Chautauqua 24 0 0 For-Profit 216 2 stars
Nursing and
Rehabilitation
Center
Chemung County 000123 Chemung 1 0 0 Not-for- 200
Nursing Facility
Church Home of 000444 Monroe 33 5 0 Not-for- 182 4 stars
The Protestant profit
Episcopal Church
Cliffside 001676 Queens 22 0 0 For-Profit 218 3 stars
Rehabilitation &
Residential Health
Care Center
Clifton Springs 000677 Ontario 0 1 0 Not-for- 108
Hospital and profit
Clinic Extended
Care
Clove Lakes 001750 Richmond 17 24 25 For-Profit 576 4 stars
Health Care and
6
12415719.2 5/5/2021
Rehabilitation
Center, IIN
Cobble Hill 001381 Kings 6 1 50 Not-for- 364 2 stars
Health Care, INC. profit
Cold Spring Hills 000558 Nassau 15 13 20 For-Profit 588 2 stars
Center for
Nursing and
Rehabilitation
Coler 001600 New York 13 17 1 Public- 815 5 stars
Rehabilitation and Municipality
Nursing Care
Center
Colonial Park 000592 Oneida 5 4 0 For-Profit 80 2 stars
Rehabilitation and
Nursing Center
Comprehensive 000274 Erie 10 4 0 For-Profit 142 2 stars
Rehabilitation and
Nursing Center at
Concord Nursing 001404 Kings 5 3 9 Not-for- 140 2 stars
and Rehabilitation profit
Center
Concourse 001253 Bronx 7 2 16 For-Profit 240 Not
Rehabilitation and available
Nursing Center,
INC.
Conesus Lake 000392 Livingston 9 0 0 For-Profit 48 2 stars
Nursing Home
Cooperstown 000749 Otsego 0 2 0 For-Profit 174
Center for
Rehabilitation and
Nursing
Corning Center 000867 Steuben 28 5 0 For-Profit 120
for Rehabilitation
and Healthcare
Cortland Park 000160 Cortland 20 1 0 For-Profit 120
Rehabilitation and
Nursing Center
Cortlandt 001041 Westchester 13 9 0 For-Profit 120 2 stars
Healthcare
Creekview 000470 Monroe 3 15 0 For-Profit 124 2 stars
Nursing and
Rehab Center
Crest Manor 000481 Monroe 19 2 0 For-Profit 80 2 stars
Living and
Rehabilitation
Center
7
12415719.2 5/5/2021
Crouse 004494 Madison 36 7 0 Not-for- 120
Community profit
Center INC
Crown Heights 001407 Kings 1 2 6 For-Profit 295 2 stars
Center for
Nursing and
Rehabilitation
Crown Park 000161 Cortland 15 1 0 For-Profit 200
Rehabilitation and
Nursing Center
Cypress Garden 001709 Queens 5 7 5 For-Profit 268 2 stars
Center for
Nursing and
Rehabilitation
Daleview Care 000524 Nassau 1 2 3 For-Profit 142 2 stars
Center
Daughters of 000022 Albany 7 2 0 Not-for- 210 4 stars
Sarah Nursing profit
Center
Degraff Memorial 000582 Niagara 4 0 0 Not-for- 80
Hospital-Skilled profit
Nursing Facility
Delhi 010108 Delaware 1 0 0 For-Profit 176
Rehabilitation and
Nursing Center
Diamond Hill 000772 Rensselaer 8 9 0 For-profit 120 3 stars
Nursing and
Rehabilitation
Center
Ditmas Park Care 001576 Kings 3 3 11 For-Profit 220 3 stars
Center
Downtown 001408 Kings 11 27 5 For-Profit 320 2 stars
Brooklyn Nursing
& Rehabilitation
Center
DR Susan Smith 007279 Kings 4 15 18 Public- 320 5 stars
McKinney Municipality
Nursing and
Rehabilitation
Dry Harbor 001705 Queens 14 25 20 For-Profit 360 3 stars
Nursing Home
Dumont Center 002575 Westchester 2 9 2 For-Profit 196 2 stars
for Rehabilitation
and Nursing Care
East Haven 001277 Bronx 7 15 7 For-Profit 200 2 stars
Nursing and
8
12415719.2 5/5/2021
Rehabilitation
Center 001277
East Neck 003307 Suffolk 23 28 10 For-Profit 300 2 stars
Nursing &
Rehabilitation
Center
East Side Nursing 001156 Wyoming 16 6 0 For-Profit 80
Home
Eastchester 001231 Bronx 0 6 2 For-Profit 200 1 star
Rehabilitation and
Health Care
Center
Eddy Heritage 004549 Rensselaer 7 11 0 Not-for- 120 4 stars
House Nursing profit
and Rehabilitation
Center
Eddy Memorial 003293 Rensselaer 7 0 0 Not-for- 80 2 stars
Geriatric Center profit
Eddy Village 004000 Albany 7 0 0 Not-for- 192 4 stars
Green profit
Eden 003910 Erie 11 1 0 For-Profit 40 3 stars
Rehabilitation &
Nursing Center
Edna Tina Wilson 004808 Monroe 14 6 29 Not-for- 120 3 stars
Living Center profit
Eger Healthcare 001748 Richmond 27 9 29 Not-for- 378 4 stars
Center
Elcor Nursing and 000124 Chemung 37 26 0 For-Profit 305
Rehabilitation
Center
Elderwood At 000232 Erie 22 8 0 For-Profit 92 4 stars
Amherst
Elderwood at 004474 Erie 18 1 0 For-Profit 172 3 stars
Cheektowaga
Grand Island
Hamburg
Elderwood at 003902 Steuben 3 2 0 For-Profit 112
Hornell
Lancaster
Elderwood at 003243 Onondaga 14 4 0 For-Profit 160 3 stars
Liverpool
9
12415719.2 5/5/2021
Elderwood at 000571 Niagara 4 2 0 For-Profit 126 3 stars
Lockpart
Elderwood at 000973 Tioga 28 4 1 For-Profit 200
Waverly
Elderwood at 005774 Niagara 4 0 0 For-Profit 123 4 stars
Wheatfield
Williamsville
Elderwood of 000469 Monroe 9 0 0 For-Profit 120
Lakeside at
Brockport
Elizabeth Church 000048 Broome 28 3 0 Not-for- 120 4 stars
Manor Nursing profit
Home
Ellicott Center for 000254 Erie 11 13 0 For-Profit 140 2 stars
Rehabilitation and
Nursing
Ellis Residential 004148 Schenectady 2 1 0 Not-for- 82 5 stars
& Rehabilitation profit
Center
Elm Manor 000682 Ontario 13 4 0 For-Profit 46 3 stars
Nursing and
Rehabilitation
Center
Elmhurst Care 007745 Queens 11 31 14 For-Profit 240 3 stars
Center, INC
Emerge Nursing 000492 Nassau 8 5 1 For-Profit 102 3 stars
and Rehabilitation
at Glen Cove
Epic 010353 Westchester 1 4 0 For-Profit 160 Not
Nursing White
Plains
Essex Center for 000305 Essex 11 3 0 For-Profit 100
Rehabilitation and
Healthcare
Evergreen 007268 Rensselaer 1 1 0 For-Profit 240 3 stars
Commons
Rehabilitation and
Nursing Center
Excel at 000559 Nassau 24 5 5 For-Profit 123 3 stars
Woodbury foe
Rehabilitation and
Nursing, LLC
Fairport Baptist 000459 Monroe 6 1 0 Not-for- 142 4 stars
Homes profit
10
12415719.2 5/5/2021
Fairview Nursing 001678 Queens 9 5 6 For-Profit 200 2 stars
Care Center INC
Far Rockaway 001679 Queens 2 6 0 For-Profit 100 Not
Center for available
Rehabilitation and
Nursing
Father Baker 004898 Erie 81 28 0 Not-for- 160 4 stars
Manor profit
Ferncliff Nursing 000194 Dutchess 17 5 1 Not-for- 326 2 stars
Home Co INC profit
Fiddlers Green 000282 Erie 7 0 0 For-Profit 82 2 stars
Manor
Rehabilitation and
Nursing Center
Fieldston Lodge 001233 Bronx 1 0 14 For-Profit 200 3 stars
Care Center
Fishkill Center for 000201 Dutchess 7 5 0 For-Profit 160 2 stars
Rehabilitation and
Nursing
Foltsbrook Center 000360 Herkimer 10 0 0 For-Profit 163 2 stars
for Nursing and
Rehabilitation
Fordham Nursing 001258 Bronx 3 18 0 For-Profit 240 2 stars
and Rehabilitation
Center
Forest Hills Care 001681 Queens 7 4 5 For-Profit 100 2 stars
Center
Forest View 001682 Queens 4 2 1 For-Profit 160 3 stars
Center for
Rehabilitation &
Nursing
Fort Hudson 001018 Washington 13 0 0 Not-for- 196 2 stars
Nursing Center, profit
INC
Fort Tryon Center 001585 New York 13 0 7 For-Profit 205 2 stars
for Rehabilitation
and Nursing
Four Seasons 003227 Kings 4 1 5 For-Profit 270 2 stars
Nursing and
Rehabilitation
Center
Fox Run at 008555 Erie 3 0 0 Not-for- 60 3 stars
Orchard Park profit
Franklin Center 001708 Queens 7 2 52 For-Profit 320 2 stars
for Rehabilitation
and Nursing
11
12415719.2 5/5/2021
Friedwald Center 000787 Rockland 11 22 3 For-Profit 180 2 stars
for Rehabilitation
and Nursing, LLC
Fulton Center for 000337 Fulton 16 21 2 For-Profit 176 2 stars
Rehabilitation and
Healthcare
Fulton Commons 006312 Nassau 6 5 35 For-Profit 280 2 stars
Care Center INC
Garden Care 000538 Nassau 16 6 0 For-Profit 150 2 stars
Center
Garden Gate 000294 Erie 25 10 0 For-Profit 184 3 stars
Healthcare
Facility
Ghent 004551 Columbia 14 2 0 For-Profit 120
Rehabilitation &
Nursing Center
Glen Arden INC 007016 Orange 2 2 1 Not-for- 40 3 stars
profit
Glen Cove Center 000493 Nassau 11 13 1 For-Profit 154 4 stars
for Nursing and
Rehabilitation
Glen Island 001078 Westchester 3 0 0 For-Profit 182 2 stars
Center for
Nursing and
Rehabilitation
Glendale Home- 000846 Schenectady 6 0 0 Public- 200 3 stars
Schdy Cnty Dept County
Social Services
Glengariff 000491 Nassau 6 14 18 For-Profit 262 3 stars
Rehabilitation and
Healthcare Center
Glens Falls 001009 Warren 19 4 5 For-Profit 117 3 stars
Center for
Rehabilitation and
Nursing
Gold Crest Care 001226 Bronx 4 15 7 For-Profit 175 1 star
Center
Golden Gate 001757 Richmond 14 17 4 For-Profit 238 2 stars
Rehabilitation &
Healthcare Center
Golden Hill 000998 Ulster 21 8 0 For-Profit 280 2 stars
Nursing and
Rehabilitation
Center
Good Samaritan 003041 Suffolk 21 1 0 Not-for- 100 3 stars
Nursing and profit
12
12415719.2 5/5/2021
Rehabilitation
Care Center
Good Shepherd 009135 Broome 5 1 0 Not-for- 32 4 stars
Village at profit
Endwell
Good Shepherd- 000049 Broome 5 0 0 Not-for- 54 4 stars
Fairview Home profit
INC
Grand Manor 000856 Bronx 3 2 0 For-Profit 240 2 stars
Nursing &
Rehabilitation
Center
Grandell 000497 Nassau 14 9 17 For-Profit 278
Rehabilitation and
Nursing Center
Granville Center 001022 Washington 1 1 0 For-Profit 122 2 stars
for Rehabilitation
and Nursing
Greene Meadows 000350 Greene 18 8 0 For-Profit 120 2 stars
Nursing and
Rehabilitation
Center
Greenfield Health 007711 Erie 18 2 0 Not-for- 160 3 stars
& Rehab Center profit
Groton 002550 Tompkins 3 3 0 Not-for- 80
Community profit
Health Care
Center Residential
care
Gurwin Jewish 003989 Suffolk 34 10 19 Not-for- 460 3 stars
Nursing and profit
Rehabilitation
Center
Guthrie Cortland 004799 Cortland 4 0 0 Not-for- 80
Hamilton Park 004285 Kings 2 12 12 For-Profit 200 3 stars
Nursing and
Rehabilitation
Center
Harlem Center for 001604 New York 4 4 29 For-Profit 200 2 stars
Nursing and
Rehabilitation
Harris Hill 003455 Erie 117 19 2 For-Profit 192 2 stars
Nursing Facility,
LLC
13
12415719.2 5/5/2021
Haven Manor 003256 Queens 4 5 5 For-Profit 240 1 star
Health Care, LLC
Haym Solomon 001361 Kings 7 2 40 For-Profit 240 2 stars
Home for the
Aged
Hebrew Home for 001212 Bronx 21 19 40 Not-for- 843 2 stars
the Aged at profit
Riverdale
Hempstead Park 000508 Nassau 2 12 10 For-Profit 251 2 stars
Nursing Home
Henry J. Carter 001601 New York 0 1 0 Public- 164 3 stars
Skilled Nursing Municipality
Facility
Heritage Green 002574 Chautauqua 12 1 0 Not-for- 134 2 stars
Rehab & Skilled profit
Nursing
Heritage Village 000112 Chautauqua 8 0 0 Not-for- 120 2 stars
Rehab and Skilled profit
Nursing, INC
Highfield Gardens 000547 Nassau 25 10 0 For-Profit 200 2 stars
Care Center of
Great Neck
Highland Care 001711 Queens 5 27 24 For-Profit 320 2 stars
Center
Highland Park 000041 Allegany 19 3 0 For-Profit 80 1 star
Rehabilitation and
Nursing Center
Highland 000691 Orange 8 10 3 For-Profit 98 2 stars
Rehabilitation and
Nursing Center
Highpointe on 003182 Erie 4 1 0 Not-for- 300 4 stars
Michigan Health profit
Care Facility
Hilaire Rehab & 000917 Suffolk 7 0 2 For-Profit 76 4 stars
Nursing
Hill Haven 000479 Monroe 48 16 0 Not-for- 288 4 stars
Nursing Home profit
Hillside Manor 001714 Queens 24 15 11 For-Profit 400 3 stars
Rehab &
Extended Care
Center
Hollis Park 003258 Queens 1 2 7 For-Profit 80 3 stars
Manor Nursing
Home
Holliswood 001712 Queens 21 6 42 For-Profit 314 1 star
Center for
14
12415719.2 5/5/2021
Rehabilitation and
Healthcare
Hope Center for 004329 Bronx 0 2 0 For-Profit 66 4 stars
HIV and Nursing
Care
Hopkins Center 005546 Kings 5 38 15 For-Profit 288 2 stars
for Rehabilitation
and Healthcare
Horizon Care 001731 Queens 5 9 23 For-Profit 280 1 star
Center
Hornell Gardens, 000871 Steuben 11 4 1 For-Profit 114
LLC
Houghton 000651 Allegany 16 1 0 For-Profit 160
Rehabilitation &
Nursing Center
Hudson Park 000021 Albany 11 1 0 For-Profit 200 2 stars
Rehabilitation and
Nursing Center
Hudson Pointe at 001232 Bronx 3 6 12 For-Profit 159 2 stars
Riverdale Center
for Nursing and
Hudson Valley 001003 Ulster 15 17 0 For-Profit 203 3 stars
Rehabilitation &
Extended Care
Center
Humboldt House 000244 Erie 6 6 0 For-Profit 173 2 stars
Rehabilitation and
Nursing Center
Huntington Hills 007786 Suffolk 35 6 36 For-Profit 320 3 stars
Center for Health
and Rehabilitation
Huntington 004286 Seneca 28 17 0 Not-for- 160
Ideal Senior 000059 Broome 11 3 0 Not-for- 150 3 stars
Ira Davenport 004156 Steuben 28 4 1 Not-for- 120
Memorial profit
Hospital
SNF/HRF
Iroquois Nursing 004555 Onondaga 43 5 0 Not-for- 160 2 stars
Home INC. profit
Isabella Geriatric 001569 New York 25 34 43 Not-for- 705 3 stars
Center INC. profit
Island Nursing 006324 Suffolk 7 11 16 Not-for- 120 3 stars
and Rehab Center profit
15
12415719.2 5/5/2021
Jamaica Hospital 001710 Queens 3 34 1 Not-for- 228 3 stars
Nursing CO INC. profit
James G. 003242 Broome 3 1 0 Mot-for- 120 4 stars
Johnston profit
Memorial Nursing
Home
Jefferson’s Ferry 006313 Suffolk 11 2 1 Not-for- 60 5 stars
profit
Jennie B. 000281 Erie 0 1 0 Not-for- 80
Richmond profit
Chaffee Nursing
Home Company
INC.
Jewish Home of 000647 Onondaga 8 4 0 Not-for- 132 Not
Central New York profit available
Jewish Home of 003385 Monroe 2 0 0 Not-for- 328 4 stars
Rochester profit
Katherine Luther 000604 Oneida 27 10 0 Not-for- 280 1 star
Residential Health profit
care and
Kendal on 006745 Westchester 2 1 0 Not-for- 26 5 stars
Hudson profit
King David 001364 Kings 9 2 25 For-Profit 271 3 stars
Center for
Nursing and
Rehabilitation
King Street Home 001093 Westchester 2 7 0 For-Profit 120 4 stars
INC.
Kings Harbor 001250 Bronx 54 3 8 For-Profit 720 2 stars
MultiCare Center
Kingsway Arms 000841 Schenectady 4 1 0 For-Profit 160 3 stars
Nursing Center
Kirkhaven 003164 Monroe 37 7 4 Not-for- 147 3 stars
profit
Laconia Nursing 001248 Bronx 1 12 8 For-Profit 240 1 star
Home
Latta Road 000475 Monroe 3 13 0 For-Profit 40 4 stars
Nursing Home
East
Latta Road 000473 Monroe 1 2 0 For-Profit 40 3 stars
Nursing Home
West
Lawrence Nursing 001707 Queens 5 3 1 For-Profit 200 1 star
Care Center INC.
Leroy Village 002974 Genesee 23 9 0 For-Profit 140 2 stars
Green Nursing
16
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and Rehabilitation
Center
Lewis County 0003884 Lewis 1 3 0 Public- 160 3 stars
General Hospital County
Nursing Home
Unit
Linden Center for 007685 Kings 7 1 19 For-Profit 280 2 stars
Nursing and
Rehabilitation
Living Center at 000672 Ontario 11 1 0 Not-for- 160
Geneva- North profit
Living Center at 000674 Ontario 6 2 0 Not-for- 103
Geneva- South profit
Livingston 000390 Livingston 5 5 0 Public- 266
County Center for County
Nursing and
Rehabilitation
Livingston Hills 000156 Columbia 1 2 0 For-Profit 120 1 star
Nursing and
Rehabilitation
Center
Lockport Rehab 000568 Niagara 19 3 0 For-Profit 82 3 star
& Health Care
Center
Long Beach 000498 Nassau 14 10 5 For-Profit 150
Nursing and
Rehabilitation
Center
Long Island Care 001685 Queens 20 4 5 For-Profit 200 3 stars
Center INC.
Long Island State 003421 Suffolk 77 35 8 Public-State 350 5 stars
Veterans Home
Loretto Health 000648 Onondaga 41 5 0 Not-for- 583 3 stars
Center
Lutheran Center 007643 Dutchess 13 7 0 Not-for- 160 2 stars
at Poughkeepsie, profit
Inc.
Luxor Nursing 000953 Suffolk 7 8 20 For-Profit 250 1 star
and Rehabilitation
at Mills Pond
Luxor Nursing 004552 Suffolk 10 5 15 For-Profit 180 2 stars
and Rehabilitation
at Sayville
Lynbrook 000520 Nassau 10 9 0 For-Profit 100 2 stars
Restorative
17
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Therapy and
Nursing
M.M. Ewing 000681 Ontario 1 1 0 Not-for- 178
Continuing Care profit
Center
Manhattanville 003993 Bronx 6 22 2 For-Profit 200 2 stars
Healthcare Center
Maplewood 000462 Monroe 15 0 0 For-Profit 72 5 stars
Nursing Home
INC
Margaret Tietz 001669 Queens 16 13 6 For-Profit 200 3 stars
Nursing and
Rehabilitation
Center
Maria Regina 006334 Suffolk 23 4 10 Not-for- 188 4 stars
Residence INC profit
Martine Center 001059 Westchester 9 12 18 For-Profit 200 2 stars
for Rehabilitation
and Nursing
Mary Manning 001571 New York 34 2 4 Not-for- 362 3 stars
Walsh Nursing profit
Home CO INC.
Masonic Care 000606 Oneida 9 4 0 Not-for- 320 3 stars
Community of profit
New York
Massapequa 000881 Suffolk 9 11 21 For-Profit 320 2 stars
Center for
Rehabilitation and
Nursing
Mayfair Care 000509 Nassau 3 1 2 For-Profit 200 2 stars
Center
Mcauley 000268 Erie 2 2 0 Not-for- 160 5 stars
Residence profit
Meadow Park 001687 Queens 1 5 0 For-Profit 143 2 stars
Rehabilitation and
Health Care
Center LLC
Meadowbrook 006009 Nassau 25 9 19 For-Profit 280 2 stars
Care Center INC.
Meadowbrook 000140 Clinton 7 1 0 For-Profit 287 3 stars
Healthcare
Medford 006462 Suffolk 8 12 7 For-Profit 320 2 stars
MultiCare Center
for Living
18
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Menorah Home & 002539 Kings 22 30 48 Not-for- 436 3 stars
Hospital for Aged profit
& Infirm
Methodist Home 001221 Bronx 11 3 0 Not-for- 120 3 stars
for Nursing and profit
Rehabilitation
Middletown Park 002533 Orange 12 17 0 For-Profit 230 3 stars
Rehabilitation &
Healthcare Center
Midway Nursing 001704 Queen 2 10 18 For-Profit 200 2 stars
Home
Momentum at 000934 Suffolk 31 3 0 For-Profit 160 3 stars
South Bay for
Rehabilitation and
Nursing
Monroe 000440 Monroe 6 6 0 Public- 566 2 stars
Community County
Hospital
Montgomery 000710 Orange 10 9 14 For-Profit 100 2 stars
Nursing and
Rehabilitation
Center
Morningside 001252 Bronx 9 26 11 For-Profit 314 3 stars
Nursing and
Rehabilitation
Center
Morris Park 001235 Bronx 3 10 20 For-Profit 191 1 star
Rehabilitation and
Nursing Center
Mosholu Parkway 001236 Bronx 1 6 18 For-Profit 122 2 stars
Nursing and
Rehabilitation
Center
MVHS 006057 Oneida 11 3 0 Not-for- 202 1 star
Nursing Center
Nassau 005710 Nassau 1 2 34 For-Profit 280 1 star
Rehabilitation &
Nursing Center
Nathan Littauer 000331 Fulton 2 0 0 Not-for- 84 3 stars
Hospital Nursing profit
Home
New Carlton 001379 Kings 1 12 1 For-Profit 148 1 star
Rehab and
Nursing Center
LLC
19
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New East Side 001578 New York 2 8 1 For-Profit 58 3 stars
Nursing Home
New Glen Oaks 001697 Queens 5 9 5 For-Profit 60 2 stars
Nursing Home,
INC
New Gouverneur 001606 New York 20 4 3 Public- 295 5 stars
Hospital SNF Municipality
New Paltz Center 001001 Ulster 4 2 0 For-Profit 77 3 stars
for Rehabilitation
and Nursing
New Roc Nursing 000448 Monroe 10 5 0
and Rehabilitation
Center
New Vanderbilt 001752 Richmond 3 2 24 For-Profit 320 1 star
Rehabilitation and
Care Center INC
New York Center 006384 Queens 2 19 27 For-Profit 280 4 stars
for Rehabilitation
& Nursing
New York State 006300 Westchester 15 9 23 Public-State 252 5 stars
Veterans Home at
Montrose
Newark Manor 001031 Wayne 7 0 0 For-Profit 60
Nursing Home
INC
Newfane Rehab 000586 Niagara 23 3 7 For-Profit 165
& Healthcare
Center
Niagara 000580 Niagara 5 5 0 For-Profit 160 2 stars
Rehabilitation and
Nursing Center
North Gate Health 001583 Niagara 9 6 0 For-Profit 200 3 stars
Care Facility
North Shore LIJ 004066 Nassau 1 16 0 Not-for- 120 5 star
Orzac Center for profit
Rehabilitation
North 001150 Westchester 11 8 4 For-Profit 120 3 stars
Westchester
Restorative
Therapy and
Nursing
Northeast Center 007758 Ulster 0 1 0 For-Profit 280 2 stars
for Rehabilitation
and Brain Injury
Northern 000193 Dutchess 1 1 0 Not-for- 100 4 stars
Dutchess Res profit
20
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Health Care
Facility
Northern 005907 New York 16 20 12 For-Profit 320 2 stars
Manhattan
Rehabilitation and
Nursing Center
Northern Manor 000784 Rockland 7 9 7 Not-for- 231 2 stars
INC
Northern 000797 Rockland 4 4 0 Not-for- 120 3 stars
Metropolitan profit
Residential Health
Care Facility
Northern 000774 Rockland 3 12 8 Not-for- 180 2 stars
Riverview Health profit
Care Center, INC.
Northwell Health 004089 Nassau 7 6 0 Not-for- 256 5 stars
Stern Family profit
Center for
Norwegian 001374 Kings 1 7 6 Not-for- 135 3 stars
Christian Home profit
and Health Center
Norwich 004522 Chenango 1 1 0 For-Profit 80
Rehabilitation &
Nursing Center
NY 001369 Kings 4 23 32 Not-for- 200 2 stars
Congregational profit
Nursing Center
Inc
Nyack Ridge 000786 Rockland 1 11 8 For-Profit 160 2 stars
Rehabilitation and
Nursing Center
NYS Veterans 000133 Chenango 6 2 0 Public-State 242
Home
NYS Veterans 004815 Queens 11 8 24 Public-State 250 5 stars
Home in NYC
Oak Hill 0000982 Tompkins 10 3 0 For-Profit 60
Rehabilitation and
Nursing Care
Center
Oasis 000910 Suffolk 12 22 0 For-Profit 100 3 stars
Rehabilitation and
Nursing, LLC
Oceanside Care 000537 Nassau 7 6 1 For-Profit 100 2 stars
Center INC
21
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Oceanview 001688 Queens 2 12 3 For-Profit 100 2 stars
Nursing &
Rehabilitation
Center, LLC
Oneida Center for 005790 Oneida 3 5 0 For-Profit 120 4 stars
Rehabilitation and
Nursing
Oneida Health 000398 Madison 2 0 0 For-Profit 160
Rehabilitation and
Extended Care
Ontario Center for 000683 Ontario 6 12 0 For-Profit 98
Rehabilitation and
Healthcare
Orchard 000721 Orleans 20 7 1 For-Profit 160
Rehabilitation &
Nursing Center
Our Lady of 000935 Suffolk 41 27 1 Not-for- 345 3 stars
Consolation profit
Nursing and
Rehabilitative
Care
Our Lady Mercy 004755 Albany 11 2 1 Not-for- 160 3 stars
Life Center profit
Our Lady of 006528 Niagara 22 3 0 Not-for- 250 2 stars
Peace Nursing profit
Residence
Oxford Nursing 001391 Kings 5 0 6 For-Profit 235 1 star
Home
Ozanam Hall of 001670 Queens 35 7 29 Not-for- 432 4 stars
Queens Nursing profit
Home INC
Palatine Nursing 000489 Montgomery 6 3 0 For-Profit 70 2 stars
Home
Palm Gardens 001392 Kings 3 9 1 For-Profit 240 2 stars
Center for
Nursing and
Rehabilitation
Park Avenue 007823 Nassau 3 10 11 For-Profit 240
Extended Care
Facility
Park Garden 001238 Bronx 4 15 2 For-Profit 200 2 stars
Rehabilitation &
Nursing Center
LLC
Park Nursing 001689 Queens 1 4 0 For-Profit 196 2 stars
Home
22
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Park Ridge 000474 Monroe 2 1 0 For-Profit 120 5 stars
Nursing Home
Park Terrace Care 001698 Queens 0 31 3 For-Profit 200 3 stars
Center
Parker Jewish 001671 Queens 83 32 0 Not-for- 527 4 stars
Institute for profit
Health Care &
Rehab
Parkview Care 000557 Nassau 1 4 11 For-Profit 169 1 star
and Rehabilitation
Center, INC.
Peconic Bay 003826 Suffolk 20 0 0 Not-for- 60 5 stars
Skilled Nursing profit
Facility
Peconic Landing 006518 Suffolk 6 2 3 Not-for- 60 5 stars
at Southold profit
Pelham Parkway 001245 Bronx 3 8 12 For-Profit 200 1 star
Nursing Care and
Rehabilitation
Facility
Penfield Place 000478 Monroe 1 0 0 For-Profit 48 2 stars
Peninsula Nursing 001672 Queens 4 22 3 For-Profit 200 2 stars
and Rehabilitation
Center
Penn Yan Manor 001162 Yates 9 2 0 Not-for- 46
Nursing Home profit
INC
Pine Haven Home 000152 Columbia 7 6 4 For-Profit 120
Pine Valley 000778 Rockland 4 5 8 For-Profit 160 4 stars
Center for
Rehabilitation and
Nursing
Pinnacle 001260 Bronx 2 16 0 For-Profit 480 2 stars
MultiCare
Nursing and
Rehabilitation
Center
Pontiac Nursing 000732 Oswego 10 3 0 For-Profit 80 2 stars
Home
Premier Genesee 000344 Genesee 13 0 0 For-Profit 160
Center for
Nursing and
Rehabilitation
Presbyterian 000621 Oneida 16 10 1 Not-for- 236 2 stars
Home for Central profit
New York INC
23
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Promenade 001690 Queens 3 10 12 For-Profit 240 2 stars
Rehabilitation and
Health Care
Center
Providence Rest, 001216 Bronx 11 0 10 Not-for- 200 2 stars
INC. profit
Putnam Nursing 000754 Putnam 14 7 0 For-Profit 160 2 stars
& Rehabilitation
Center
Putnam Ridge 006171 Putnam 5 2 0 For-Profit 160 3 stars
Quantum 000912 Suffolk 11 3 1 For-Profit 120 3 stars
Rehabilitation and
Nursing LLC
Queens Boulevard 005904 Queens 4 19 3 For-Profit 280 3 stars
Extended Care
Facility
Queens Nassau 001702 Queens 2 3 4 For-Profit 200 3 stars
Rehabilitation
Center
Rebekah Rehab 001223 Bronx 5 9 19 Not-for- 213 1 star
and Extended profit
Care Center
Regal Heights 007875 Queens 9 20 5 For-Profit 280 3 star
Rehabilitation and
Health Care
Center
Regeis Care 001242 Bronx 3 7 6 For-Profit 236 2 stars
Center
Regency 001103 Westchester 5 13 32 For-Profit 315 3 stars
Extended Care
Center
Rego Park 001693 Queens 21 22 1 For-Profit 200 2 stars
Nursing Home
Renaissance 000203 Dutchess 8 13 0 For-Profit 120 2 stars
Rehabilitation and
Nursing Care
Center
Resort Nursing 001694 Queens 3 14 2 For-Profit 280 3 stars
Home
Richmond Center 004823 Richmond 1 13 12 For-Profit 372 3 stars
for Rehabilitation
and Specialty
River Ridge 000485 Montgomery 14 3 0 For-Profit 120 2 stars
Living Center
River View 000976 Tioga 11 8 0 For-Profit 77 Not
24
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Nursing Care
Center
Riverdale Nursing 001241 Bronx 1 13 4
Home
Riverside Center 000767 Rensselaer 3 6 0 For-Profit 80 3 stars
for Rehabilitation
and Nursing
Robinson Terrace 000169 Delaware 15 7 0 For-Profit 120
Rehabilitation and
Nursing Center
Rockaway Care 001666 Queens 2 30 1 For-Profit 228 2 stars
Center
Rockville Skilled 000517 Nassau 0 1 1 For-Profit 66 2 stars
Nursing &
Rehabilitation
Center, LLC
Rome Memorial 000590 Oneida 15 3 1 Not-for- 80 4 stars
Hospital, Inc- profit
RHCF
Rosa Coplon 004772 Erie 17 3 0 Not-for- 180 3 stars
Jewish Home and profit
Infirmary
Rosewood 003920 Rensselaer 1 3 0 For-Profit 80 2 stars
Rehabilitation and
Nursing Center
Ross Center for 000932 Suffolk 7 0 7 For-Profit 120 2 stars
Nursing and
Rehabilitation
Rutland Nursing 001316 Kings 16 18 33 Not-for- 466 3 stars
Home, INC. profit
Safire 000266 Erie 4 6 5 For-Profit 100 3 stars
Rehabilitation of
Northtowns, LLC
Safire 003084 Erie 11 1 0 For-Profit 120 2 stars
Rehabilitation of
Southtowns, LLC
Saint Joachim & 004418 Kings 0 0 27 Not-for- 200 2 stars
Anne Nursing and profit
Rehabilitation
Center
Salamanca 000081 Cattaraugus 0 1 0 For-Profit 120 2 stars
Rehabilitation &
Nursing Center
Salem Hills 003765 Westchester 12 16 3 For-Profit 126 2 stars
Rehabilitation and
Nursing Center
25
12415719.2 5/5/2021
Samaritan Senior 009472 Jefferson 2 2 0 Not-for- 167 Not
Village, INC. profit available
San Simeon By 000892 Suffolk 1 3 0 Not-for- 120 2 stars
the Sound Center profit
for
Sands Point 000546 Nassau 12 12 2 For-Profit 180 3 stars
Center for Health
and Rehabilitation
Sans Souci 001106 Westchester 1 4 9 For-Profit 120 3 stars
Rehabilitation and
Nursing Center
Sapphire Center 001680 Queens 4 1 50 For-Profit 227 2 stars
for Rehabilitation
and Nursing of
Central Queens,
LLC
Sapphire Nursing 003407 Orange 15 5 4 For-Profit 120 2 stars
and Rehab at
Goshen
Sapphire Nursing 000696 Orange 15 16 0 For-Profit 190 2 stars
at Meadows Hill
Sapphire Nursing 000191 Dutchess 0 1 0 For-Profit 62 2 stars
at Wappingers
Schaffer Extended 001081 Westchester 4 7 0 Not-for- 150 5 stars
Care Center profit
Schenectady 000839 Schenectady 4 3 0 For-Profit 240 2 stars
Center for
Rehabilitation and
Nursing
Schervier Nursing 001224 Bronx 4 17 37 For-Profit 364 3 stars
Care Center
Schervier Pavilion 005670 Orange 18 8 1 Not-for- 120
profit
Schoellkopf 000579 Niagara 25 2 0 Not-for- 120 2 stars
Schofield 000269 Erie 26 3 0 Not-for- 120 3 stars
Residence profit
Schulman and 001376 Kings 28 14 20 Not-for- 448 2 stars
Schachne Institute profit
for Nursing and
Schuyler Hospital 000859 Schuyler 4 1 0 Not-for- 120
INC and Long profit
Term Care Unit
Sea Crest Nursing 001401 Kings 14 27 10 For-Profit 305 3 stars
and Rehabilitation
26
12415719.2 5/5/2021
Sea View 001749 Richmond 10 1 20 Public- 304 4 stars
Hospital, Municipality
Rehabilitation
Center and Home
Seagate 001373 Kings 5 0 31 For-Profit 360 1 star
Rehabilitation and
Nursing Center
Seneca Health 000300 Erie 14 6 0 For-Profit 160 3 stars
Care Center
Seneca Hill 007734 Oswego 18 0 0 Not-for- 120
Manor INC profit
Seneca Nursing & 000863 Seneca 2 2 0 For-Profit 120 3 stars
Rehabilitation
Center, LLC
Seton Health at 004826 Saratoga 4 2 0 Not-for- 120 3 stars
Schuyler Ridge profit
Residential
Healthcare
Shaker Place 000030 Albany 10 5 0 Public- 250 3 stars
Rehabilitation and County
Nursing Center
Sheepshead 001398 Kings 6 50 3 For-Profit 200 2 stars
Nursing &
Rehabilitation
Center
Shore View 001399 Kings 28 29 2 For-Profit 320 3 stars
Nursing &
Rehabilitation
Center
Silver Lake 001753 Richmond 2 6 37 For-Profit 278 2 stars
Specialized
Rehabilitation and
Care Center
Silver Crest 004407 Queens 10 4 0 Not-for- 320 2 stars
profit
Sky View 001120 Westchester 14 40 0 For-Profit 192 2 stars
Rehabilitation and
Health Care
Center, LLC
Slate Valley 004217 Washington 9 1 0 For-Profit 88 3 stars
Center for
Rehabilitation and
Nursing
Smithtown Center 003433 Suffolk 24 8 4 For-Profit 162 2 stars
for Rehabilitation
and Nursing Care
27
12415719.2 5/5/2021
Sodus 001038 Wayne 2 2 0 For-Profit 124
Rehabilitation &
Nursing Center
Soldiers and 001159 Yales 5 3 0 Not-for- 150
Sailors Memorial profit
Hospital Extended
Care
South Shore 000504 Nassau 5 12 3 For-Profit 100 3 stars
Rehabilitation and
Nursing Center
Split Rock 001243 Bronx 5 13 9 For-Profit 240 2 stars
Rehabilitation and
Health Care
Center
Sprain Brook 001114 Westchester 8 17 5 For-Profit 121 3 stars
Manor Rehab
Spring Creek 001400 Kings 2 4 11 For-Profit 188 1 star
Rehabilitation &
Nursing Care
Center
ST Anns 000476 Monroe 17 4 0 Not-for- 470 2 stars
Community profit
ST Anns 000477 Monroe 3 2 0 Not-for- 72 3 stars
Community profit
ST Cabrini 001125 Westchester 16 9 8 Not-for- 304 2 stars
Nursing Home profit
ST Camillus 000655 Onondaga 39 29 0 Not-for- 284 3 stars
Care Facility
ST Catherine 000252 Erie 2 2 0 Not-for- 80 4 stars
Laboure Health profit
Care Center
ST Catherine of 003422 Suffolk 5 23 0 Not-for- 240 4 stars
Siena Nursing and profit
Rehabilitation
Care
ST Johnland 000951 Suffolk 20 3 21 Not-for- 250 3 stars
Nursing Center, profit
INC
ST Johns Health 000442 Monroe 35 7 0 Not-for- 455 4 stars
Care Corporation profit
ST Luke 000735 Oswego 21 4 0 Not-for- 200 2 stars
Care Facility INC
ST Mary Center 004533 New York 0 2 0 Not-for- 40 5 stars
INC profit
28
12415719.2 5/5/2021
ST Patricks Home 001217 Bronx 26 0 14 Not-for- 264 3 stars
profit
ST Vincent 004543 Bronx 22 12 0 Not-for- 120 Not
Depaul Residence profit available
ST James 000950 Suffolk 31 14 0 For-Profit 230 2 stars
Rehabilitation &
Healthcare Center
ST Josephs Place 003914 Orange 7 1 1 Not-for- 46
profit
ST Peter’s 000017 Albany 15 0 0 Not-for- 160
Nursing and profit
Rehabilitation
Center
Staten Island Care 001756 Richmond 2 4 16 For-Profit 300 1 star
Center
Suffolk Center for 000888 Suffolk 2 9 1 For-Profit 120 2 stars
Rehabilitation and
Nursing
Sullivan County 000963 Sullivan 5 1 0 Public- 146
Adult Care Center County
Sunhabor Manor 000548 Nassau 26 17 10 For-Profit 266 4 stars
Sunnyside Care 000664 Onondaga 4 0 0 For-Profit 80
Center
Sunrise Manor 000931 Suffolk 3 16 3 For-Profit 84 2 stars
Center for
Nursing and
Rehabilitation
Sunset Nursing 000613 Oneida 9 1 0 For-Profit 120
and Rehabilitation
Center, INC.
Surge 000909 Suffolk 9 4 4 For-Profit 149 3 stars
Rehabilitation and
Nursing LLC
Susquehanna 000060 Broome 16 3 1 For-Profit 160 2 stars
Nursing &
Rehabilitation
Center, LLC
Sutton Park 001080 Westchester 7 17 7 For-Profit 160 3 stars
Center for
Nursing and
Rehabilitation
Syracuse Home 004323 Onondaga 2 1 0 Not-for- 120 4 stars
Association profit
Tarrytown Hall 001115 Westchester 3 7 0 For-Profit 120 3 stars
Care Center
29
12415719.2 5/5/2021
Ten Broeck 004710 Ulster 32 0 0 For-Profit 258 2 stars
Center for
Rehabilitation &
Nursing
Terence Cardinal 003089 New York 24 23 9 Not-for- 559 3 stars
Cooke Health profit
Care Center
Teresian House 000023 Albany 21 7 0 Not-for- 300 3 stars
Nursing Home profit
CO INC
Terrace View 001739 Erie 7 6 0 For-Profit 390 4 stars
Long Term Care
Facility
The Amsterdam 009186 Nassau 3 0 0 Not-for- 56 5 stars
at Harborside profit
The Baptist Home 000195 Dutchess 8 0 0 For-Profit 120 2 stars
at Brookmeade
The Brightonian, 000463 Monroe 11 1 0 For-Profit 54 1 star

INC
The Brook at 000434 Monroe 2 3 0 For-Profit 28 Not
High Falls available
Nursing Home
and Rehabilitation
The Chateau at 001383 Kings 9 4 20 For-Profit 189 3 stars
Brooklyn
Rehabilitation and
Nursing
The Citadel 001234 Bronx 9 3 49 For-Profit 385 2 stars
Rehab and
Nursing Center at
Kingsbridge
The Commons on 000092 Cayuga 48 9 0 Not-for- 300 2 stars
St. Anthony, A profit
Skilled Nursing &
Short
The Cottages at 000657 Onondaga 1 0 0 Not-for- 156 3 stars
Garden Grove, A profit
Skilled Nursing
The Emerald Peek 001042 Westchester 3 8 2 For-Profit 96 1 star
Rehabilitation and
Nursing Center
The Enclave at 001094 Westchester 4 7 17 For-Profit 160
Rye
Rehabilitation and
Nursing Center
30
12415719.2 5/5/2021
The Five Towns 000539 Nassau 8 10 2 For-Profit 280 3 stars
Premier
Rehabilitation &
Nursing Center
The Friendly 000464 Monroe 14 1 0 Not-for- 200 3 stars
Home profit
The Grand 000516 Nassau 19 15 14 For-Profit 158 2 stars
Pavilion for
Rehab & Nursing
at Rockville
The Grand 000154 Columbia 13 9 0 For-Profit 236 2 stars
Rehabilitation and
Nursing at
Barnwell
The Grand 000343 Genesee 6 1 0 For-Profit 62
Rehabilitation and
Nursing at
Batavia
The Grand 000403 Madison 3 0 0 For-Profit 80 2 stars
Rehabilitation and
Nursing at
Chittenango
The Grand 000521 Nassau 18 10 9 For-Profit 214 3 stars
Rehabilitation and
Nursing at Great
Neck
The Grand 000033 Albany 3 7 0 For-Profit 127 2 stars
Rehabilitation and
Nursing at
Guilderland
The Grand 000357 Herkimer 11 3 0 For-Profit 120 2 stars
Rehabilitation and
Nursing at
Mohawk
The Grand 000189 Dutchess 4 6 8 For-Profit 122 3 stars
Rehabilitation and
Nursing at
Pawling
The Grand 001675 Queens 3 21 0 For-Profit 179 2 stars
Rehabilitation and
Nursing at
Queens
The Grand 006232 Dutchess 3 0 0 For-Profit 160 2 stars
Rehabilitation and
Nursing at River
Valley
31
12415719.2 5/5/2021
The Grand 000593 Oneida 9 5 7 For-Profit 160 2 stars
Rehabilitation and
Nursing at Rome
The Grand 000564 Nassau 1 3 0 For-Profit 185
Rehabilitation and
Nursing at South
Point
The Grand 000609 Oneida 12 6 0 For-Profit 220 Not
Nursing at Utica
The Grove at 007605 Westchester 5 6 5 For-Profit 160 2 stars
Valhalla
Rehabilitation and
Nursing Center
The Hamlet 003230 Suffolk 8 7 8 For-Profit 240 2 stars
Rehabilitation
Healthcare Center
at
The Hamptons 006871 Suffolk 7 1 14 For-Profit 280 2 stars
Center for
Rehabilitation and
Nursing
The Heritage 001393 Kings 1 5 2 For-Profit 79 2 stars
Rehabilitation and
Health Care
Center
The Highlands at 005538 Monroe 21 5 0 Not-for- 145 4 stars
Brighton profit
The Hurlbut 000465 Monroe 10 0 7 For-Profit 160 3 stars
The Knolls 006519 Westchester 0 1 1 Not-for- 20 5 stars
profit
The New Jewish 001603 New York 48 6 13 Not-for- 514 2 stars
Home, Manhattan profit
The New Jewish 001113 Westchester 51 4 0 Not-for- 300 3 stars
Home, Sarah profit
Neuman
The Osborn 001134 Westchester 8 2 6 Not-for- 84 5 stars
profit
The Paramount at 001148 Westchester 14 11 20 For-Profit 300 2 stars
Somers
Rehabilitation and
Nursing
The Pavilion at 007298 Queens 4 15 11 For-Profit 302 1 star
Queens
Rehabilitation &
Nursing
32
12415719.2 5/5/2021
The Phoenix 001405 Kings 29 7 37 For-Profit 400 2 stars
Rehabilitation and
Nursing Center
The Pines at 000349 Greene 11 7 3 For-Profit 136 2 stars
Catskill Center
for Nursing &
Rehabilitation
The Pines at 001010 Warren 5 2 2 For-Profit 120 4 stars
Glens Falls
Center for
Nursing &
The Pines at 000186 Dutchess 13 15 1 For-Profit 200 3 stars
Poughkeepsie
Center for
Nursing &
The Pines at Utica 000608 Oneida 5 2 0 For-Profit 117 3 stars
Center for
Nursing &
Rehabilitation
The Pines 000083 Cattaraugus 0 1 0 Public- 115 3 stars
Healthcare & County
Rehabilitation
Centers Machias
The Plaza Rehab 001225 Bronx 27 12 49 For-Profit 744 2 stars
and Nursing
Center
The Riverside 001370 New York 50 16 18 For-Profit 520 1 star
The Shore Winds, 000437 Monroe 20 1 1 For-Profit 229
LLC
The Valley View 000702 Orange 53 16 3 Public- 360 2 stars
Center for Country
Nursing Care and
The Villages of 000716 Orleans 23 7 1 For-Profit 120
Orleans Health
and Rehabilitation
The Wartburg 001068 Westchester 22 11 13 Not-for- 210 3 stars
Home profit
The Willows at 000780 Rockland 8 1 18 For-Profit 203
Ramapo
Rehabilitation and
Nursing
Throgs Neck 004814 Bronx 7 1 36 For-Profit 205 1 star
Rehabilitation &
Nursing Center
Tolstoy 000785 Rockland 7 3 3 Not-for- 96 Not
Foundation profit available
33
12415719.2 5/5/2021
Rehabilitation and
Nursing Center
Townhouse 006050 Nassau 10 5 8 For-Profit 280 2 stars
Center for
Rehabilitation &
Nursing
Triboro Center for 001249 Bronx 3 16 12 For-Profit 405 2 stars
Rehabilitation and
Nursing
Troy Center for 000762 Rensselaer 5 5 0 For-Profit 78 3 stars
Rehabilitation and
Nursing
Union Plaza Care 006037 Queens 21 6 29 For-Profit 280 2 stars
Center
United Hebrew 001077 Westchester 5 0 6 Not-for- 294 4 stars
United Helpers 000810 Saint 13 3 0 Not-for- 96
Canton Nursing profit
Home
United Helpers 000802 Saint 21 1 0 Nott-for- 180
Nursing Home profit
Unity Living 003392 Monroe 5 6 0 Not-for- 120 4 stars
Center profit
University Center 001244 Bronx 2 1 2 For-Profit 46 3 stars
for Rehabilitation
and Nursing
Upper East Side 001582 New York 18 51 11 For-Profit 499 3 stars
Rehabilitation and
Nursing Center
Utica 000607 Oneida 6 2 0 For-Profit 120 2 stars
Rehabilitation &
Nursing Center
Valley Health 003170 Herkimer 10 0 0 Not-for- 160 3 stars
Services INC profit
Valley View 000131 Chenango 10 0 0 For-Profit 82
Manor Nursing
Home
Van Duyn Center 000650 Onondaga 45 8 1 For-Profit 513 2 stars
for Rehabilitation
and Nursing
Van Rensselaer 000761 Rensselaer 2 3 0 Public- 362 2 stars
Manor County
Verrazano 001754 Richmond 7 1 13 For-Profit 120 2 stars
Nursing Home
34
12415719.2 5/5/2021
Vestal Park 009514 Broome 7 2 2 For-Profit 160 2 stars
Rehabilitation and
Nursing Center
Victoria Home 001090 Westchester 2 4 4
Villagecare 001599 New York 2 0 0 Not-for- 105 5 stars
Nursing Center
Warren Center for 001008 Warren 5 2 0 For-Profit 80 2 stars
Rehabilitation and
Nursing
Washington 001026 Washington 5 1 0 For-Profit 122 2 stars
Center for
Rehabilitation and
Healthcare
Waters Edge 000899 Suffolk 6 8 2 For-Profit 120 2 stars
Rehab & Nursing
Center at Port
Jefferson
Waterview Hills 001144 Westchester 11 9 1 For-Profit 130 3 stars
Rehabilitation and
Nursing Center
Waterview 001677 Queens 2 2 5 For-Profit 200 2 stars
Nursing Care
Center
Waterville 000618 Oneida 4 1 0 For-Profit 92 2 stars
Residential Care
Center
Wayne Center for 001257 Bronx 0 1 0 For-Profit 243 2 stars
Nursing &
Rehabilitation
Wayne County 001034 Wayne 2 2 0 Public- 192
Nursing Home County
Wayne Health 001029 Wayne 15 2 0 Not-for- 180
Care profit
Wedgewood 000457 Monroe 2 1 0 For-Profit 29 Not
Nursing and available
Rehabilitation
Center
Wells Nursing 000335 Fulton 2 2 0 For-Profit 100 4 stars
Home Inc
Wellsville Manor 002589 Allegany 9 8 0 For-Profit 120 2 stars
Care Center
Wesley Garden 000449 Monroe 3 5 0 For-Profit 200 4 stars
Corporation
Wesley Health 000822 Saratoga 29 4 0 Not-for- 342 3 stars
Care Center INC profit
35
12415719.2 5/5/2021
West Lawrence 001726 Queens 8 20 2 For-Profit 215 1 star
Care Center LLC
Westchester 001069 Westchester 5 14 0 For-Profit 240 2 stars
Center for
Rehabilitation &
Nursing
Western New 005751 Genesee 18 5 0 Public-State 126
York State
Veterans Home
Westhampton 005638 Suffolk 23 10 0 For-Profit 180 2 stars
Care Center
White Oaks 003872 Nassau 33 13 8 For-Profit 200 2 stars
Rehabilitation and
Nursing Center
White Plains 001058 Westchester 5 0 0 For-Profit 88 Not
Center for available
Nursing Care
Wilkinson 000483 Montgomery 15 4 0 Not-for- 160 4 stars
Care Facility
Williamsbridge 001247 Bronx 2 6 1 For-Profit 77 2 stars
Center for
Rehabilitation and
Nursing
Williamsville 001378 Erie 8 15 0 For-Profit 220 2 stars
Suburban LLC
Willow Point 000064 Broome 35 15 0 Public- 300 2 stars
Rehabilitation and County
Nursing Center
Windsor Park 001699 Queens 9 3 0 For-Profit 70 2 stars
Nursing Home
Wingate at 006237 Dutchess 19 2 0 For-Profit 160 3 stars
Beacon
Wingate at 005760 Dutchess 3 4 0 For-Profit 160 3 stars
Dutchess
Wingate at Ulster 007064 Ulster 7 3 0 For-Profit 120 4 stars
Woodcrest 001700 Queens 5 18 0 For-Profit 200 2 stars
Rehabilitation &
Residential Health
Care
Woodhaven 000908 Suffolk 6 12 0 For-Profit 143 2 stars
Nursing Home
Woodland Pond 009136 Ulster 0 1 0 Not-for- 40 5 stars
at New Paltz profit
Workmen’s Circle 001219 Bronx 17 36 12 For-Profit 524 2 stars
Multicare Center
36
12415719.2 5/5/2021
Wyoming County 001154 Wyoming 4 3 0 Public- 138
Community County
Hospital SNF
Yonkers Gardens 001109 Westchester 7 8 12 For-Profit 200 3 stars
Center for
Nursing and
Rehabilitation
Yorktown 0003630 Westchester 7 6 5 For-Profit 125 2 stars
Rehabilitation &
Nursing Center
The numbers displayed are provided by ACF and NH facilities and capture COVID-19 presumed
deaths at NHs and ACFs, and COVUD-19 confirmed out of facility (hospital/other) deaths of
NH facility residents, as reported by NHs. Retrospective data reporting fates back to March 1,
2020 and data is updated as fatality reports are confirmed and validated by DOH.
Sources: NYS Department of Health, Center for Medicare and Medicaid Services.
37
12415719.2 5/5/2021
New York State Bar Association
One Elk Street, Albany, New York 12207 • 518/463-3200 • http://www.nysba.org
Committee on Disability Rights
Joseph J. Ranni, Esq.

Co-Chair
Ranni Law Firm
148 N Main St
Florida, NY 10921
(845) 651-0999
[email protected]
Alison Kate Morris, Esq.

Co-Chair
Cuddy Law Firm
400 Columbus Avenue, Suite 140S,
Valhalla, New York 10595
(914) 984-2602
www.cuddylawfirm.com
May 28, 2021

PROPOSED COMMENTS UPON TASK FORCE ON NURSING HOMES
AND LONG-TERM CARE
As Co-Chair of the Committee on Disability Rights I strongly applaud the comprehensive analysis
performed by the Task Force on Nursing Homes and Long-Term Care. The report demonstrates not only the
breath of the impact from the pandemic, but how a progressive institutionalization system has been created over
decades that was ill-equipped for the pandemic as a result of living environments that had an almost equal
detrimental effect upon quality of life. Frank discussions are now occurring about how we live as we die that
have been avoided for decades and are now being addressed forthrightly. The Task Force has bravely advanced
these discussions and on behalf of the Committee on Disability Rights I am grateful to the Task Force members
and our representatives Sheila Shea, Mary Morrissey and Simeon Goldman.
Recognition must be given to Association leadership and particularly President Karson for expeditiously
creating the Task Force to address ramifications from the pandemic. The work of the Task Force was clearly a
collaborative effort. Special mentioned must be given to Chair Hermès Fernandez. After one brief voicemail
message asking for the CDR to be included Hermes’ response was immediate and meaningful. This is merely
an example of the foresightful efforts of the Task Force to have diversity inclusion which is reflected
throughout the Report.
This Task Force report has been a pinion in moving forward to address the problems and create a format
to discuss solutions. None of the members involved had expertise in all areas addressed but collaboratively
created a report addressing the broad dynamic and coalescing similarities instead of solely being focused on
criticism and differences.
The nursing home industry, or indeed all large-scale congregate care, are not “villains” in the least. This
system has been a societal creation and for some reason our society has repeatedly created these systems. State
Hospitals are a living memory and were deconstructed to a community-based system. The pandemic has
exposed similar systemic fractures in congregate care which may have similar solutions.
The Report provides an excellent analysis of the broad similarities in how our “system” addresses
disabilities based upon age, type, program and payor source and the need to redirect towards appropriate
community-based residences with supports and services to facilitate quality of life in the least restrictive living
environment regardless of age.
There are many community programs that can be extended and enhanced to provide oversight and
assistance as they currently do in programs for different types of persons with disabilities. Examples are
Community Medicaid; Home and Community Based Services; “Open Door” (Money Follows the Person);
Nursing Home Transition and Diversion; TBI; and Mental Health Enriched Housing. Note these examples
further demonstrate the segmentation and silos that exist despite all have the same ultimate purpose.
The Report demonstrates the stark contrast between how we address aging related developmental
disabilities and other types of disability, particularly where the age onset is as a child instead of as an adult.
People with disabilities largely age in place. Group Homes are an example that includes persons who are part
of the Willowbrook Class and continue to reside in place despite now developing age related disabilities.
However, our aging population is shuffled between home, Adult Homes, Senior Housing, Assisted Living,
Nursing Homes and Hospice. All occurring while they are least capable to control their destiny and while they
are aware of their decreasing physical and mental capabilities. The lack of psychological supports and mental
health services are abysmal.
Part of the reason why large-scale congregate care has been created is a result of the need to create
housing that can accommodate disability and provide appropriate services. Many primary homes and
residences are unsuitable as a result of the curse of stairs and small bathrooms or that a person needs 24-hour
care requiring “overnights”. While the Report correctly points out most New Yorkers continue to live home,
they also correctly point out the severe staffing problems with historically low wages and no benefits have
deterred individuals from performing these often-demanding jobs. Who can blame a staff member without
benefits refusing work during the height of the pandemic? Yet, as this legislative session ends that problem will
necessarily persist. Care givers continue to have low wages and no benefits despite the physical, emotional and
very personal demands of the job.
The Report first and foremost recommends we “Rethink the Delivery of Long-Term Care” and provides
examples how this can be accomplished. The Report demonstrates how our system of caring for people with
disabilities, regardless of age, arises from a lack of accommodative community housing with appropriate service
delivery.
The attached Proposal began in concept amongst an ad hoc group of disability and elder professionals
including attorneys looking for solutions while learning Zoom. From there, the collaborative network branched
out and continues to grow. NYSBA was instrumental in the development and should take pride in the
professionalism and collegiality among our members. The Proposal is non-proprietary and a work in progress.
Like this Report, it is an effort to meaningfully address the crisis and inspire solutions not only to the current
environment but the embedded pre-existing challenges.
As the Report demonstrates, solutions exist but are unrecognized. Already a majority of the older
persons are aging in place. We already have community-based service delivery. We have existing programs
that provide for congregate care avoidance. While the Proposal is not unique in method or manner, it appears
unique as there is no similar program that allows primary residence condominium home ownership as a
Community Medicaid exempt asset; utilizing Community Exempt income to maintain monthly expenses while
remaining qualified to receive licensed and appropriate care services. Importantly, people can live with their
spouse, child or caregiver and never have to move. They will remain in their home with an appropriate and
comforting living environment through their passing.
Continuing discussions need to occur among the diverse perspectives reflected by the Task Force
membership and resulting Report. It has been a privilege for CDR to have participated in the creation of this
report and we look forward to continuing collaborations.
I WHOLLY RECOCOMMEND ACCEPTANCE OF THE REPORT WITH GRATEFUL
APPRECIATION.
____________________________________
Joseph J. Ranni
Co-Chair Committee on Disability Rights
The opinions expressed are those of the author and do not reflect endorsement or position of the Association or
any Section or Committee.
Accommodative Residences Utilizing Community Medicaid
Exemptions for Older Persons and Persons with Disabilities
A Multi-Disciplinary Collaborative Effort
Executive Summary Overview

The singular goal of the following non-proprietary proposal is to provide a
person centered cost-effective alternative approach for individuals who may
not need to be or can avoid being in a skilled nursing facility. Embodied in
the Nursing Home Medicaid system, there are predispositions toward
congregate care when daily care exceeds 12 hours and are directed towards
Nursing Homes instead of being provided supportive assistance that would
enable them to remain at home or in alternative accommodative housing
fully interwoven into the fabric of community living.
A significant reason people can’t remain home are architectural barriers such
as stairs and small bathrooms. A lack of accommodative housing for older
persons and persons with disabilities is historic and largely the reason people
with disabilities, regardless of age are compelled to large scale congregate
care. Medicaid thereby ultimately became the payor while the individual
becomes impoverished. In effect, a disability penalty and a living
environment few choose.
Community Medicaid, a quite different program from Nursing Home
Medicaid, was originally developed as a nursing home and congregate
avoidance program – patterned from the Willowbrook Decree that
deinstitutionalized state hospitals. In that instance, scaled-down community-
based group homes were developed as an alternative to permanent
institutional confinement, creating an array of modestly sized residences
supported by an elaboration of integrated programs and services.
The congregate care system evolved over centuries in an attempt to address
the complex and presumptively ‘burdensome’ issues commonly associated
with aging and disability. The need for changes in both policy and practice is
undeniable as events over the recent year have caused many of us to
rethink the reasons and economies for the existing system. In fact, there are
many programs that currently exist with the same purpose. Essentially, this
proposal provides a method for an individual to choose and provide for their
own accommodative housing without the need to depend on public funds for
their housing and monthly support. The individual preserves their assets or
uses their money otherwise lost to Medicaid impoverishment requirements
for a primary home-like residence in their local community. Medicaid will
save money as they are no longer responsible for room and board as well as
1
solving the “overnights” problem and fluid care delivery with small
economies of scale.
This proposal offers an alternative that is humane and cost effective, that
restores connection, dignity, and hopefulness to our most vulnerable
citizens. It develops accommodative housing that embraces a holistic,
person-centered approach to addressing the long-term care needs identified
by each individual, one that focuses on core health determinants, leverages
the strength of existing health care and social service providers (consistent
with existing Community Medicaid, Nursing Home Waiver, Redirection and
Avoidance programs). Importantly the proposal preserves personal
resources and yields Medicaid savings through the benefits of co-located
individuals requiring care. Regardless, as congregate facilities are being
challenged by the costs of maintaining large facilities, this proposal provides
an opportunity for integrating accommodative environment options
consistent with or beyond those currently being provided.
We are all familiar with the seemingly hopeless progression from home… to
senior housing… to assisted living… to nursing home… to hospice, yet little
attention is given to the transfer trauma. Virtually no one likes to move
from safe familiar surroundings yet doing so has become an integral part of
aging in our state and nation. As a state and nation, we have willingly if
reluctantly embraced this shuffle as unalterable, a march towards death that
strips us of our freedom, our sense of purpose and our connections with
family and community. They are replaced with a pattern of institutional
diversions designed to provide momentary distractions and to cajole loved
ones into thinking they have made the right decision.
Health care providers and systems are becoming increasingly aware of the
importance of caregiving approaches that promote continuing wellness by
addressing both medical needs and social determinants of health –
conditions directly associated with where people live, learn, work, and play
that affect a wide range of health and quality-of-life risks and outcomes.
Often, these are a key driver to ensuring health equity, where everyone can
attain their full wellness potential regardless of social position or other
socially determined circumstance. Moreover, multiple studies have found
that approximately 60 percent of the factors that influence health and
wellness are nonmedical social, behavioral, and environmental, while only 20
percent are genetic, and the remaining 20 percent are associated with health
care. The studies are numerous that demonstrate appropriate transitions
between hospitals and homes reduce readmissions and health care costs,
increases satisfaction with care, and achieve better outcomes.
Revealing the limitations inherent in the nursing home model of care is not
intended as a challenge to the dedication of caregivers, medical
professionals and administrators caught up in a broken system. They more
2
than anyone have personally witnessed the tragedy imposed by the
pandemic. Instead, this proposal is an opportunity to revisit the question of
care for older persons and people with significant disabilities. Collaboratively
we can find transformational solutions that redefine how best to apply our
resources to the challenge of “building back better”; to replacing isolation
with family and community contact, despair with hope, distraction with
purposeful activity, and to make aging in place a reality for members of our
community at all stages of life.
Proposal Description
The proposal is to develop a community condominium residence consisting
of 10-12 fully accessible suites with accompanying amenities, each being
connected directly with interior and exterior common areas. The direct
access to interior common areas could be through a foyer, but not a hallway.
Suites would be large enough to accommodate an individual or couple;
disabled child for whom an adult is a caregiver or adult child who is a
caregiver to their parent; in-home service providers as needed; or visiting
family members. The suite would be of universal design with private
bedroom, possibly a second bedroom; accommodative bath, sitting area,
and hazard-free kitchenette while exterior areas would include porches and
patios, with easy access to secure courtyards offering lawn and garden
areas, a playground (for visiting children) and barrier-free walkways.
All homes would be resident owned, enabling them to preserve financial
resources permissible through the Community Medicaid primary residence
exemption of $906,000. The suite and common non-care services would be
sustained through the monthly income exemption of $884 and potentially
additional exempt excess income expended consistent with existing
Community Medicaid regulations through currently well utilized Pooled
Trusts.
Medicaid requires near complete impoverishment since a person is only
allowed non-exempt assets of $15,750 and $884 of income per month. If a
spouse also requires Medicaid, then non-exempt assets are $23,400 and
income limit of $1,300. If the spouse does not need Medicaid, they are
entitled to a supportive Minimum Monthly Needs Allowance of at least
$3,259.50 or maintain their own income and contribute 25% of the excess
above $3,259.50 for the care and support of their spouse. The spouse is
also able to retain non-exempt resources up to $130,380.
3
For the individual, “excess income” which most people have beyond $884
(pensions, 401ks, IRAs, annuities; etc.) can be deposited in a “pooled” trust
that is professionally managed consistent with Medicaid guidelines and pays
for supports, services, and luxuries Medicaid does not. The categories are
very broad and can include any self-benefitting expense. For example,
proper expenses for art or music “therapy”; appropriate furniture; or
lightweight wheelchairs and other durable medical equipment to facilitate
not only the person but those who assist them. The individual retains
maximum independence and enjoys the benefit of using their own money as
long as they personally benefit from the expenditure. In fact, all of the
money to create and operate the residence is using the persons own
resources and income. Public benefits would provide the same service
delivery as currently exists for persons on Community Medicaid and residing
home. Medicaid should experience decreased expenditures from not having
to provide housing and benefitting from small economies of scale to deliver
care. Congregate care does have its benefits and few would argue different
as long as it is a personal choice and amongst options that aren’t Hobson’s
Choices. However, as we now see, the large economies of scale are now
dis-economic and there is a clear policy and demand shift away from what
was previously acceptable.
A person is eligible and qualifies for Community Medicaid when they are
below the above asset and income thresholds and need “hands-on” or “arm’s
reach” with at least three (3) Activities of Daily Living and a filed application.
The “spend downs” and elder planning must be done before the application.
An assessment is performed through a state designated entity which
evaluates the needs, care and supports as well as personal assistance
resources available (ex. family members). From the care plan established,
services can be obtained either through a MLTCP or CDPAS as the individual
may choose. If a person chooses a MLTCP they typically have a choice
amongst several companies who perform another assessment and “offer”
what services, they will provide.
Most people receive services based upon “hours a day” correlated to need
and a schedule to address those needs. Requiring more than 12 hours
(overnights) is a logistical challenge to remain home. While most advocates
argue the “per capita” rate paid MLTCPs encourages them to compel “high
needs” transfer to congregate care, there is also the reality of industry-wide
staff shortages. Small congregate care as proposed provides the
opportunity to achieve a small economy of scale.
4
Notably, as CDPAS programs allow people to self direct care providers who
are providing the needed services, traditional “licensing” of aides is not
required. Consequently, the program provides the opportunity to expand
the labor pool. All care givers under CDPAS must be properly vetted with
payments monitored through a Fiscal Intermediary (FI). The FI is
responsible to make sure the person is trained, able to perform the services
and actually performs the services. While government costs are not
increased by persons utilizing this program compared to Managed Long Term
Care Plans (MLTCP), the ability to “self-direct” the care services and person
providing them facilitates more appropriate care.
As previously stated, typical elder planning occurs prior to the filing of
Medicaid application regardless of whether the planning is for Nursing Home
or Community Medicaid. Both Medicaid programs were created to provide
necessary supports and services for poor people. Elder planning seeks to
protect assets while rendering individuals “poor” to qualify for benefits. If
the assets aren’t protected, they indeed will lack necessary resources due to
the very low Medicaid limits and often drag their spouse with them into
poverty. Beyond calculating the different “lookback periods” for Nursing
Home Medicaid and Community Medicaid related to “gifting” money away
from the person are strategies to “spend down” a person’s assets to get
under the Medicaid “resource” limit and preserve assets consistent with
Medicaid guidelines.
For Community Medicaid planning, the primary home is always the initial “go
to” for spending money on an exempt asset that provides an appropriate
and comfortable environment that is then preserved through the primary
residence exemption. Typical planning seeks to provide accommodative
housing that will facilitate the needs of the individual through death and
preserve assets to access in times of need.
Any money not properly preserved or transferred will be lost to Medicaid to
pay for the services Medicaid provided during life. Most are familiar with
spousal refusal where a spouse protects assets by refusing to make those
resources available to the needy spouse. Upon the Medicaid individual’s
death, Medicaid has a right to recover those expenses from remaining assets
with certain exemptions. Contrary to popular belief, the primary goal of
elder law is preserving assets for an individual’s benefit and preparing for
the most difficult transition we have in life. Regardless, most of us have
witnessed the depression and discouragement of a couple facing the loss of
their life’s savings and the evaporation of their hopes of providing for
progeny.
5
Special note should be made of the impact the current system has upon the
“well” spouse, often compromised as well. First, our system separates
spouses and the lack of appropriate housing is the primary reason. They
both can’t be where they are and can’t be together where the other has to
go. Additionally, they are compelled to “refuse” their spouse and a notably
sickening elder planning strategy of divorce. This proposal addresses these
issues as spouses will never have to part; be rendered poor; or struggle
without assistance because they will not separate.
Amazingly, despite older persons and persons with disabilities facing the
most challenging aspects of life there is a dearth of psychological supports,
services, or treatment. There are few things more disturbing to witness
than a person with a dementia realizing their loss of mental acuity. Yet, what
assistance exists? In the community there are mental health programs,
peer supports, family, friends, religious and social communities.
During the discussions in the crowdsourcing of this proposal staffing and
workforce issues came up continuously. Indeed, the lack of available
workforce was a chronic problem before the pandemic and worse now as
many caregivers have left the industry, some tragically. Of course, nursing
home occupancy rates have been drastically reduced, and more people are
remaining home requiring substantial assistance. It would be to deny the
obvious that 24-hour at home care stretches the available workforce even
thinner.
The proposal can expand the workforce available to perform this important
work as some non-caregiving services are being provided by the residence,
the most important being fresh food, security and housekeeping of common
areas. Additionally, there would be a reduced need for some services as
family, friends and community relationships are more readily available.
Community Medicaid currently considers available informal, volunteer and
family services as part of their assessment. Current community service
programs can be expanded for support, assistance, and oversight.
Optimally, Community Medicaid would waive any right of recovery against
the primary residence providing a further incentive so that suite
occupant/owners could pass the primary residence value to beneficiaries.
Notwithstanding, this proposal is not dependent upon such a waiver and
traditional elder planning could still occur.
Some have commented on the potential desirability for a non-disabled
person to want to reside in a residence. For some residences, that may be
true and desirable creating a more integrated setting. However, for
6
residences dominated by older persons, compelled to move there from
home, and the serious care giving most would be receiving, it is doubtful the
issue would be a problem though it would be a testament that the goal of
the proposal was achieved for the persons to whom it is directed.
Additionally, there is the potential that community residences could be
established for separate purposes that individuals would find attractive to
invest their personal funds, such as for young disabled adults or parents with
disabled children. Hopefully, these residences wouldn’t necessarily be
standalone structures or clustered but integrated with affordable housing,
workforce housing or perhaps even a golf community.
How creative might the free market be? The proposal would not require any
more capital to develop than a small housing development. There is not the
need for the capital-intensive system and basic utilitarian environment that
exists due to a dependency upon the Medicaid monthly billing and large
numbers of “beds” to create the necessary large economies of scale.
Developing a condominium plan per project would impose significant costs
that would inhibit development of single residences in rural areas where
there is the most need. In Western NY for instance the closest nursing
home could be more than 30 miles away. The goal of this proposal is to
reach all communities and the legal expenses are daunting relative to a
single project. Consequently, additional collaborative efforts are needed to
address how to streamline costs and approval. An acknowledgement needs
to be made to the NYS Attorney General’s Office who have been informative
and gracious.
Small economies of scale demonstrably exist. While this proposal can
certainly provide an alternative to Group Homes, Group Homes demonstrate
small economies of scale are achievable. Viability is further demonstrated
by alternative community-based housing innovations such as the Green
House Project (https://thegreenhouseproject.org/) which is based upon
being a small-scale nursing home of design consistent with this proposal.
However, there is no reason this small community based accommodative
residence couldn’t be created and operated consistent with Community
Medicaid exemptions described above with services provided through
existing long term care programs. Another notable current grassroots
example is people renovating their large homes to accommodate several
similarly situated persons and achieve a small economy of scale to receive
more appropriate services. A common planning practice in elder law is to
co-locate family members who need services. Additionally, religious
7
communities facing the issues of aging are also good examples of truly aging
in place.
This community-based solution seeks to provide permanent long-term
housing for older persons and people with disabilities that would offer the
array of collateral benefits typically associated with providing fully accessible
home ownership. First, unlike the current system, spouses would remain
together. Certainly, there are enhanced opportunities for contact with
friends, family members and religious communities. Expanded services can
be provided by community-based, multi-sector organizations that include
individually aligned health and social interventions aimed at addressing the
whole person.
This proposal seeks to achieve a better overall quality of life, providing the
least restrictive living environment and promoting the self-management of
chronic health conditions – which is particularly important as the health care
sector transitions to value-based payment models.
Smaller economies of scale can provide for the overnights economically and
provide more appropriate service delivery over the course of a day instead of
a rigid schedule often currently required for home care. Additionally, as
MLTCP benefit from providing services to people co-located there would be
the greater potential of obtaining more or better-quality services than would
be available at home.
With the goal of creating and sustaining independent environments that
comprehensively facilitate aging in place, the residence would be supported
by a number of on-site services including building management, food
services, housekeeping, and maintenance services of common areas. The
monthly excess income exemption allowed by Community Medicaid could be
used to offset non-Medicaid housing and cost of living related expenses.
Regardless, the home’s equity could still be accessed for any purpose,
sufficient funds would need to be available to offset monthly common
charges, perhaps mortality + 5 years to determine necessary reserves.
Questions arose in collaboration as to what type of licensing, if any, would
be appropriate. While a detailed analysis of the scope of existing licensing
provisions for nursing homes, assisted living, adult homes, enhanced adult
homes and Continuing Care Retirement Communities is beyond the scope of
this Overview, simplistically it is a tiered hierarchy based upon the functional
needs of the individual and insuring appropriate personal care services are
provided by licensed individuals. In the proposal, those care giving services
are provided not by the residence but by licensed care givers as would occur
8
if they lived at home. The residence would be providing services more
aligned with the hospitality industry which also provides food, common
facilities and housekeeping with the oversight and inspections common to
that industry.
Notwithstanding, oversight is also enhanced as the residence would be

located within or close to the community of their choice, assumedly close to
family and friends. Additionally, community programs exist that could be
expanded. There are many innovative proposals in NY and nationwide to
expand community services and oversight.
Proposal Development
The proposal is designed to serve all populations who may need any long-
term services and supports. At its core, this proposal embodies a new
vision… one that acknowledges and respects the right of all individuals to live
with dignity in the home of their choosing, and to play the central role in
decision-making that effects where they reside, the care they receive as well
as their participation in family and community living.
There is also opportunity to integrate with existing “self-help’ and supported
living initiatives that have long existed in assisting persons with disabilities.
The potential exists for a person on public benefits to invest exempt assets,
which like Community Medicaid typically exist in these types of programs, in
an exempt primary residence which facilitates the economic ability to
transition out of a supported program. The studies are numerous as to the
uplifting effect of home ownership for persons in transition.
There is no reason that persons with assets should be inhibited from
accessing a viable option as their economic situation may provide. A
common denominator of poverty is abhorrent. Our society is full of talented
builders, architects and entrepreneurs who can exercise creativity in
development. One benefit is that this proposal provides a local solution,
whether urban or rural, and is not dependent upon financing large
complexes. Notwithstanding, existing programs for the economically
disadvantaged can be expanded consistent with this proposal with similarly
potential reduced government expenditures.
There is near universal recognition of the demand and policy shifts away
from large scale congregate care and institutionalization towards small
community-based housing. This proposal provides a free market non-
9
governmental solution that will allow people to live with their spouse in an
accommodative environment of their choosing in their local community.
They will never be shuffled or transferred while preserving their resources
and liquidity. Medicaid will save money through small economies of scale
and more appropriate service delivery. Halcyon? Not at all, this proposal
could be developed tomorrow and should be. This a combination of existing
programs, nothing in it is truly unique.
Conclusion
The time has come to move away from the institutional model that has
governed the way people live as they are dying. How WE will live as we die.
The pandemic has created a tragic opportunity to address long standing
festering issues at their root and create appropriate and accommodative
living environments for all persons.
Respectfully Submitted,
Joseph J. Ranni, Esq.
May 28, 2021
The opinions expressed are those of the author and do not reflect any endorsement or position of
any person, legal or professional Association, Organization, or entity.
Joseph Ranni is the Co-chair of the Disability Rights Committee, a member the Health Law
Section Long Term Care Planning Committee and Public Health Committee, and the Elder
Law/Special Needs Section and Committee on Long Term Care Reform. He is also Board
President of the non-profit Independent Living, Inc. He received his JD from Brooklyn Law
School (’87) and LL.M.- Elder Law from Stetson College of Law (’15)
Doug Hovey, a Contributing Editor, is the Founder and Executive Director of Independent
Living Inc. (ILI) which provides community supports, services and accommodative housing
in the Hudson Valley. He is a noted statewide advocate and testifies frequently before the
NYS Legislature.
Assistance in drafting by A.J. Abrams is gratefully acknowledged.
Additional Recognition
Substantial feedback, guidance and encouragement from members of the New York State
Bar Association Health Law Section, Public Health Committee and Long Term Care
committee; the Elder Law/Special Needs Section and Long Term Care Reform Committee
and the Committee on Disability Rights which were critical to the development of this
proposal. Notwithstanding, contributions from elder rights advocates; Independent Living
Organizations and grassroots disability rights organizations are recognized as well.
10
Accommodative Residences Utilizing Community Medicaid
Exemptions for Older Persons and Persons with Disabilities
Executive Summary
May 11, 2021
PROPOSAL: Facilitate the development of accommodative housing for

persons with disabilities regardless of their age. Personal resource
preservation and service delivery would occur concurrently with existing
Community Medicaid, Nursing Home Waiver, Redirection and Avoidance
programs. Medicaid savings would occur though small economies of scale
and expanded community-based service programs currently existing.
CONCEPT: Purpose built small condominium community residences with 10-
12 suites of accommodative design for persons with disabilities to age in
place with spouses while preserving financial resources exemption for
primary home ownership consistent with the Community Medicaid Resource
Exemption. The Community Medicaid monthly income exemption (and
excess income) allows for the payment of monthly common charges for
food, utilities, housekeeping, maintenance, landscaping etc.
PURPOSE: Provide home ownership for individuals from which they would
never have to move who are otherwise eligible for congregate care. The
community residence would provide maximum independence for residents
regardless of physical or mental health challenges throughout the remainder
of their lives. As the residence could be in any small town or urban
neighborhood, access for family and friends can be maximized. Additionally,
existing community supports, and services programs can be expanded.
METHOD: Utilizing Community Medicaid resource and income exemptions to
allow the purchase and provide monthly expenses of a residential suite with
fully accommodative direct access to common interior and exterior areas.
Personal care services would be provided through existing Consumer
Directed Personal Assistance Services (CDPAS) programs and/or licensed
Managed Long Term Care Plan entities (MLTCP’s). Medicaid costs are
reduced through smaller service delivery economies of scale and nursing
home avoidance. Additionally, “overnights” and more fluid care delivery for
residents can occur as service delivery would be shared by Consumer
Directed program residents or MLTCP’s who would be able to provide
services to multiple clients.
1|Page
COMPOSITION: Small community residence condo apartments consisting
of suites directly opening to common interior and exterior areas. Suites
would be of universal design with private bedroom, accommodative bath,
sitting area, and hazard-free kitchenette. The suites could also have 2
bedrooms such that a parent, child, or caregiver could co-reside. Exterior
spaces would include porches and patios, grass and gardens, a playground,
and walkways.
OWNERSHIP: Condominium residence ownership in a structure built
consistent with nursing home construction specifications. The ownership
interest is an exempt resource asset under Community Medicaid eligibility
rules. While Medicaid has many rules and some exemptions, preserving
assets through home investment is a typical “spend down” strategy in
current elder planning to preserve resources in the primary residence
otherwise lost pursuant to Nursing Home Medicaid poverty requirements.
Unfortunately, many people live in homes that cannot accommodate their
disabilities and must move. Since Community Medicaid allows a principal
residence up to $906,000 to be exempt, residences could be simple or
complex, and the purchase funds preserved. A significant incentive would be
for Medicaid to waive any right of recovery against the primary residence
asset. Notwithstanding, current financial Medicaid planning strategies would
apply to protect assets according to existing law.
Residents retain all exclusive ownership rights and responsibilities typical of
primary homeownership for their individual condo suite. At any time, the
resident can sell their interest as is typical of any condominium interest.
Notwithstanding, while the equity may be accessed for any purpose,
sufficient balances must be preserved to provide an uninterrupted income
stream (ex. SSI, SSDI, pension, 401(k) etc.) such that monthly common
charges through the age of mortality +5 years can be paid.
MONTHLY EXPENSES: The residence would have a building manager, cook,
housekeeping, maintenance, and common environmental non-care services.
Community Medicaid allows an individual a monthly income exemption of
$884 with excess income to be used for non-Medicaid housing and costs of
living. Consequently, the typical SS, pension, IRA etc. income can be used
to pay a monthly expense that would be utilized for the maximum benefit
and discretion of the individual.
ADDITIONAL EXEMPT RESOURCES:
Again, Medicaid has many rules concerning “allowable” exempt resources
beyond the home. An individual is allowed assets of only $15,900; with
2|Page
Medicaid dependent spouse, $23,400; and non-Medicaid spouse is permitted
up to $130,380 of assets. Consequently, while the individual limits are very
low, an individuals with or without their spouse would be able to provide for
their needs suitably as the residence provides for basic “room and board”.
SERVICE DELIVERY: Currently, people living home on Community
Medicaid receive services inside the home through either a Managed Long
Term Care Plan (MLTCP) or Consumer Directed Personal Assistance Services
(CDPAS) programs as they may choose. They typically have a choice
amongst MLTCPs who perform an assessment and “offer” a menu of
services. Most people receive services based upon “hours a day” correlated
to need. Requiring more than 12 hours (overnights) is a logistical challenge
to remain home.
Smaller service delivery economies of scale can provide for the overnights
and provide more appropriate service delivery over the course of a day
instead of a rigid schedule often currently required for home care. The
concept would provide greater flexibility to facilitate care needs for persons
over the course of a day. Additionally, as MLTCPs benefit from providing
services to people co-located, there would be the greater potential of
obtaining more or enhanced services than would be available at home.
Each resident would have the right to choose their care services provider or
arrange services through a CDPAS as currently exists. Notwithstanding, all
care givers must be properly trained, licensed if necessary, and compliant
with the obligations consistent with any program pursuant to which services
are provided.
LICENSING and INSPECTIONS: All care giving through MLTCP or CDPAS
would be through licensed or approved entities, however, no licensing for
the residence specifically would be necessary except usual and customary
hospitality industry inspections and oversight for the common services and
facilities that would be provided. The residence is providing accommodative
design and services that if currently being provided to someone in their
home would not need separate licensing.
COMMUNITY SUPPORTS and SERVICES: Currently there are broad
community supports and services for persons with disabilities across a wide
spectrum. These include transportation, peer counseling services, visitation
and linking people to community-based services. There would also be
greater access to faith-based services. Notwithstanding, innovative
community-based programs are aggressively being considered and would
dovetail well with this proposal by providing oversight and services access.
3|Page
BROAD APPLICATION: While the proposal can be most helpful to the
current middle class, there are also possibilities for low-income individuals
through a set aside program whereby 20% of units may be available as
rentals using subsidies from a sponsoring agency. Perhaps an individual
could use exempt resources to invest in the exempt residence and “buy-out”
the state which can provide a bootstrap to transition out of the public
program.
Since these are small residences, they could be built for special purposes for
which people may want to socialize in their living situation. Whether
religious reasons, disability related or just similar interests they can
accommodate personal independence of choice for people in need of
accommodative housing.
Low or no interest loans could be offered to non-profits for build-out. There
are many possibilities using current programs. There are existing and new
policy efforts for greater community integration with other types of
affordable or workforce housing into which the concept could easily be
incorporated. While the residences can be operated standalone, optimally
they would be integrated into every community seamlessly. There is no
reason a residence could not be included in retirement or recreational
communities as well.
POSSIBLE INCENTIVE:
Medicaid Waiver of Recovery. NYS Medicaid currently retains a right of
recovery against the primary residential resource after the death of the
resident and potentially the surviving spouse. Should Medicaid waive such
right, and allow the resource to pass to beneficiaries, a significant financial
incentive would be created for this type of nursing home avoidance.
ADDITIONAL FEATURES
To provide the most integrated setting, no more than 5 residences should be
grouped on any building lot unless co-located with other forms of housing
with the residence comprising no more than 20% of the total units on the
lot.
Maximum 12 units per suite of accommodative design which must at
minimum consist of a bedroom, sitting area, kitchenette (hazard-free) and
bathroom. The sitting area must be large enough to provide for a pull-out
queen bed if no second bedroom.
4|Page
Each suite must open directly to the common area. While the suite entry can
be a foyer, it should not be a hallway, though recognizing urban design may
require otherwise.
Each residence shall maintain common exterior spaces directly accessible
from the common areas into which each suite opens directly and exterior
areas are accessible directly from an elevator.
Each residence should provide suitable space for use by visiting medical
professionals; therapists; and telehealth.
Each residence should provide residence based freshly prepared meals and
food service available a minimum of 12 hours per day and accessible 24/7.
Each residence would provide common area security, housekeeping services
and premises maintenance.
Each residence would provide for all common charges for utilities, water,
sewer, physical plant (not including interior suites), common areas both
interior and exterior.
CONCLUSION: The proposal provides an opportunity for individuals with
disabilities regardless of age, whether living in rural or urban settings, to
enjoy an appropriate living environment with improved quality of life while
having their support and care needs met. Most importantly they will
continue to reside in the community with their spouse, parent, child with a
disability or caregiver with direct access to friends and family. Lastly,
Medicaid will save money though more appropriate economies of scale while
also providing more appropriate community-based care.
There is nothing truly unique about this proposal. The goal is to provide a
transitional plan allowing people to live in the community rather than be
displaced. It seeks to incorporate existing programs across the elder and
disability spectrums, all of which have the same purposes and goals to
create supportive environments. Utilizing free market principles that will
facilitate local solutions can benefit communities throughout the state both
humanistically and economically. The question is not whether this proposal is
achievable, but how it may be developed aggressively now and improved
and refined over time.
Respectfully Submitted.
Joseph J. Ranni, Esq

Lead Collaborator
5|Page
From: New York State Bar Association
To: O"Clair, Melissa
Subject: Steven Richman commented on the "Report and recommendations of the Task Force on Nursing Homes and
Long-Term Care" library entry
Date: Wednesday, May 19, 2021 2:56:27 PM
Steven Richman commented on the 'Report and recommendations of the Task Force on
Nursing Homes and Long-Term Care' library entry
I recommend that Section H of the Recommendations be modified to refer to State and Local
Governments (page 121) as well as the Federal Government. Pending allegations under
review by both the NYS Attorney General and the State Assembly Impeachment Inquiry
include that politics played a significant role in the State’s response or lack thereof. I agree
that political considerations should not play a role in these vital issues on any government
level. The language should be revised to include... View More
You are receiving this notification because you followed the 'Report and recommendations of
the Task Force on Nursing Homes and Long-Term Care' library entry. If you do not wish to
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Staff Memorandum

· Protecting public health.

· Preparing for emergencies.

· Providing clear guidance.

· Preventing the spread of communicable diseases.

· Collecting and disseminating information.

Task Force on COVID-19 in New York

Nursing Homes and Long-Term Care

Hermes Fernandez, Esq. Sandra D. Rivera, Esq.

John Dalli, Esq.

John Henry Tator Dow, III, Esq.

William S. Friedlander, Esq.

Simeon Goldman, Esq.

David Ian Kronenberg, Esq.

Richard C. Lewis, Esq.

Mary Beth Quaranta Morrissey, Esq., Ph.D.

Lori E. Petrone, Esq.

Joanne Seminara, Esq.

Francis J. Serbaroli, Esq.

Sheila E. Shea, Esq.

Jeffrey J. Sherrin, Esq.

Thomas K. Small, Esq.

Executive Committee Liaison

Mark J. Moretti, Esq.

Advisor to the Task Force

Dr. Elin A. Gursky, ScD, MSc, IDHA

Research Assistant to the Task Force

Craig W. Anderson, Esq.

NYSBA Staff Liaison

Thomas J. Richards, Esq.

II. The Role of Government in Responding to a Pandemic .......................................... 24

III. Responsibilities of Government in Responding to a Pandemic ................................ 25

IV. A State and Nation Unprepared ............................................................................... 32

V. The Impact on Nursing Homes and their Residents................................................. 36

VI. Impact of COVID-19 in Other Long-Term Care Settings .......................................... 69

VII. Conclusion ........................................................................................................ 107

VIII. Recommendations............................................................................................ 111

assistance in compiling the applicable law and regulations.

IV regarding nursing homes.

Finally, we want to thank Thomas Richards, NYSBA’s Deputy General Counsel,

The COVID-19 pandemic – a public health crisis unmatched in a hundred years –

policies adequately protect vulnerable populations and guarantee equitable access to

high quality care.

The challenge of unraveling the complex picture presented by the

intersectionality of age, race, ethnicity, neighborhood, income inequality, disability,

residences licensed by the Office of Mental Health, and in-home care.

evidence documenting the pandemic’s impacts across multiple domains is available,

residents would still be at grave risk.

variegated dimensions of COVID-19.

make certain recommendations based upon existing evidence, including systems

consequences of future emergent diseases.

Force is to systematically review the long-term care sector pandemic experience. In

change including to applicable statutes, policies, and regulations where needed.

different long-term care settings.

Richard Mollot, Long Term Care Community Coalition

Bryan O’Malley, Consumer Directed Personal Assistance Association of

James Clyne, LeadingAge NY

Stephen Hanse, NYS Health Facilities Association

Christina Towne, Sivan Rosenthal, NYS Nurses Association

Claudette Royal, NYS Nursing Home Ombudsman

Ruth Heller, Todd Hobbler, Service Employees International Union (SEIU)

J.R. Drexelius, Developmental Disabilities Alliance of Western New York

Bill Hammond, Empire Center for Public Policy