TUESDAY, MARCH 9, 2021 1:53 P.M.
ACTING SPEAKER AUBRY: THE HOUSE WILL COME
TO ORDER.
IN THE ABSENCE OF CLERGY, LET US PAUSE FOR A MOMENT OF
SILENCE.
(WHEREUPON, A MOMENT OF SILENCE WAS OBSERVED.)
VISITORS ARE INVITED TO JOIN THE MEMBERS IN THE PLEDGE
OF ALLEGIANCE.
(WHEREUPON, ACTING SPEAKER AUBRY LED VISITORS AND
MEMBERS IN THE PLEDGE OF ALLEGIANCE.)
A QUORUM BEING PRESENT, THE CLERK WILL READ THE
JOURNAL OF MONDAY, MARCH 8TH.
MRS. PEOPLES-STOKES.
MRS. PEOPLES-STOKES: MR. SPEAKER, I MOVE TO
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NYS ASSEMBLY MARCH 9, 2021
DISPENSE WITH THE FURTHER READING OF THE JOURNAL OF MARCH THE 8TH AND
ASK THAT THE SAME STAND APPROVED.
ACTING SPEAKER AUBRY: WITHOUT OBJECTION, SO
ORDERED.
MRS. PEOPLES-STOKES.
MRS. PEOPLES-STOKES: THANK YOU SO MUCH, MR.
SPEAKER. I'D LIKE TO PROVIDE A QUOTE FOR THE DAY. AGAIN, WE ARE GOING
TO HEAR POSTHUMOUSLY FROM THE NOTORIOUS RBG, RUTH BADER GINSBURG.
AS EVERYONE KNOWS, SHE WAS AN ASSOCIATE JUSTICE OF THE UNITED STATES
SUPREME COURT. SHE LEFT US IN 2020, BUT THESE WORDS ARE STILL WITH US,
MR. SPEAKER, AND THEY SAY: FIGHT FOR THINGS YOU CARE ABOUT, BUT DO IT
IN A WAY THAT WILL LEAD OTHERS TO JOIN YOU.
MR. SPEAKER AND COLLEAGUES, MEMBERS DO HAVE ON
THEIR DESK THE MAIN CALENDAR AS WELL AS AN A-CALENDAR, AND I'D NOW
LIKE TO ADVANCE THAT A-CALENDAR, MR. SPEAKER.
ACTING SPEAKER AUBRY: ON MRS.
PEOPLES-STOKES' MOTION, THE A-CALENDAR IS ADVANCED.
MRS. PEOPLES-STOKES: THANK YOU. AFTER THERE
ARE ANY INTRODUCTIONS AND/OR HOUSEKEEPING, WE'RE GOING TO BEGIN OUR
WORK TODAY WITH THE -- ON THE CALENDAR WITH RESOLUTIONS ON PAGE 3, AND
THEN WE'RE GOING TO TAKE UP THE FOLLOWING SEVEN BILLS RELATING TO
NURSING HOMES: RULES REPORT NO. 27, RULES REPORT NO. -- BY MR.
GOTTFRIED; AND RULES REPORT NO. 34 BY MR. GOTTFRIED; RULES REPORT
NO. 35 BY MR. BRONSON; RULES REPORT NO. 36 BY MR. KIM; RULES
REPORT NO. 37, MR. GOTTFRIED; RULES REPORT NO. 38, MR. GOTTFRIED; AND
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NYS ASSEMBLY MARCH 9, 2021
RULES REPORT NO. 39 BY MS. LUNSFORD. MR. SPEAKER, THERE IS
ABSOLUTELY A NEED FOR A MAJORITY CONFERENCE AT THE CONCLUSION OF OUR
WORK TODAY. WE WILL SPEAK WITH OUR COLLEAGUES ON THE OTHER SIDE OF
THE AISLE TO HELP DETERMINE WHAT THEIR NEEDS ARE, BUT THAT'S WE HAVE,
MR. SPEAKER, AND WE'RE READY TO PROCEED.
ACTING SPEAKER AUBRY: THANK YOU, MRS.
PEOPLES-STOKES.
THE CLERK WILL READ RESOLUTION ON PAGE 3, ASSEMBLY
NO. 92.
THE CLERK: ASSEMBLY RESOLUTION NO. 92, MR.
DESTEFANO.
LEGISLATIVE RESOLUTION MEMORIALIZING GOVERNOR
ANDREW M. CUOMO TO PROCLAIM MARCH 2021 AS MUSIC IN OUR SCHOOLS
MONTH.
ACTING SPEAKER AUBRY: MR. DESTEFANO ON THE
RESOLUTION.
MR. DESTEFANO: THANK YOU, MR. SPEAKER, FOR THE
OPPORTUNITY TO SPEAK ON THIS RESOLUTION. MUSIC ENRICHES OUR LIVES AND
IS KEY TO A COMPONENT OF OUR CULTURE. IN A SCHOLASTIC SETTING, MUSIC
PROVIDES FOR A WELL-ROUNDED EDUCATION AND GROUNDS FOR STUDENTS IN
NUMEROUS DISCIPLINES THAT WILL BENEFIT THEM THROUGHOUT THEIR LIVES.
NATIONAL MUSIC IN OUR SCHOOLS MONTH IS AN ANNUAL CELEBRATION BY THE
NATIONAL ASSOCIATION FOR MUSIC EDUCATION WHICH ENGAGES MUSIC
EDUCATORS, STUDENTS, COMMUNITIES FROM AROUND THE COUNTRY IN
PROMOTING HIGH-QUALITY MUSIC AND EDUCATION. THIS YEAR, THE
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ASSOCIATION'S 48 IS HIGHLIGHTING MUSIC IN OUR SCHOOLS, AN EFFORT THAT
BEGAN AS A SINGLE STATEWIDE ADVOCACY DAY AND HAS SINCE GROWN TO A
NATIONWIDE, MONTH-LONG CELEBRATION.
AS PART OF THIS APPRECIATION MONTH, STUDENTS WILL
PERFORM VARIOUS CONCERTS IN STATE LEGISLATURES, CONCERT HALLS, AND
SCHOOLS TO SHOWCASE THEIR TALENT TO AMERICA'S YOUTH. MUSIC HAS BEEN
PART OF HUMAN HISTORY SINCE MANKIND FIRST DISCOVERED ITS LOVE FOR THIS
BEAUTIFUL AND CHERISHED ART FORM IN EVENTS SUCH AS OUR MUSIC IN OUR
SCHOOLS, TO ALLOW IT TO CONTINUE AND PROGRESS FOR IT TO EVOLVE. THAT'S
WHY I'M PROUD TO SPONSOR THIS RESOLUTION IDENTIFYING MARCH 2021 AS
MUSIC IN OUR SCHOOLS MONTH IN THE STATE OF NEW YORK. THIS
RECOGNITION WILL GO A LONG WAY TOWARD PRESERVING A PART OF AMERICAN'S
RICH PAST AND CONTRIBUTE GREATLY TO THE MUSIC EDUCATION OF OUR YOUTH.
THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: THANK YOU, SIR.
MR. MANKTELOW ON THE RESOLUTION.
MR. MANKTELOW: THANK YOU, MR. SPEAKER. I
WANT TO COMMEND THE SPONSOR FOR BRINGING THIS RESOLUTION FORWARD.
WHAT A GREAT TIME. WE'RE COMING INTO SPRINGTIME AND WE'RE DEALING
WITH THE COVID ISSUES THAT WE HAVE GOING ON, AND MUSIC IS SUCH AN
IMPORTANT PART TO THESE YOUNG PEOPLE'S LIVES IN OUR SCHOOL SYSTEMS,
WHETHER IT'S CATHOLIC SCHOOL, PUBLIC SCHOOL, PRIVATE SCHOOL, AND
ANYTHING THAT WE CAN DO AS LEGISLATORS TO MAKE SURE THEY'RE BACK
TOGETHER CREATING MUSIC TOGETHER, MAKING THAT LOVELY SOUND, ANYTHING
THAT WE CAN DO WOULD BE AWESOME. AND, AGAIN, MOVING THAT RULE FROM
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12-FOOT TO SIX-FOOT RULE TO GET THEM EVEN CLOSER.
SO AGAIN, I WANT TO THANK THE SPONSOR FOR THIS -- THIS
PIECE OF -- OR THIS RESOLUTION AND FULLY BACK IT, AND I THINK ABOUT OUR
CHILDREN BACK HOME AND I LOOK FORWARD TO HEARING THEM PLAY AGAIN.
SO THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: THANK YOU, SIR.
ON THE RESOLUTION, ALL THOSE IN FAVOR SIGNIFY BY SAYING
AYE; OPPOSED, NO. THE RESOLUTION IS ADOPTED.
PAGE 4, MAIN CALENDAR, RULES REPORT NO. 27, THE
CLERK WILL READ.
THE CLERK: ASSEMBLY NO. A05841-A, RULES
REPORT NO. 27, GOTTFRIED, WEINSTEIN, SAYEGH, STECK, SIMON, CUSICK,
BARRON, ABINANTI, COOK, GLICK, VANEL, LUNSFORD, CAHILL, L. ROSENTHAL,
PICHARDO, RICHARDSON, BRONSON, ZEBROWSKI, THIELE, WILLIAMS,
BICHOTTE HERMELYN, CARROLL, FALL, GALLAGHER, FORREST, CRUZ, STIRPE,
NOLAN, CLARK, COLTON, PERRY, SANTABARBARA, HUNTER, JACKSON,
ZINERMAN, GRIFFIN, KELLES, JACOBSON, SILLITTI. AN ACT TO AMEND THE
PUBLIC HEALTH LAW, IN RELATION TO THE USE OF PSYCHOTROPIC MEDICATIONS
IN NURSING HOMES AND ADULT CARE FACILITIES.
ACTING SPEAKER AUBRY: THERE IT IS.
(PAUSE)
AN EXPLANATION IS REQUESTED, MR. GOTTFRIED.
MR. GOTTFRIED: THANK YOU, MR. SPEAKER. THIS
BILL, WHICH WE'VE PASSED SEVERAL TIMES BEFORE, DEALS WITH REGULATING
HOW PSYCHOTROPIC DRUGS ARE PRESCRIBED AND ADMINISTERED IN NURSING
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HOMES. SEVERAL REPORTS HAVE DOCUMENTED THAT NEW YORK'S RATE OF
USING PSYCHOTROPIC DRUGS ESSENTIALLY AS WHAT ARE OFTEN CALLED
"CHEMICAL RESTRAINTS" ON NURSING HOME RESIDENTS IS A LOT WORSE THAN IN
A LOT OF OTHER STATES. IT IS A VERY SERIOUS PROBLEM WHERE, IN MANY CASES,
NURSING HOMES USE PSYCHOTROPIC DRUGS TO ESSENTIALLY ZONK OUT PATIENTS
SO THEY ARE QUIET AND SIT IN THE CORNER, AND DON'T DO ANYTHING, AND DON'T
EAT UP ANY STAFF TIME, AND IT DOES PEOPLE SERIOUS MEDICAL AND -- AND
PSYCHOLOGICAL DAMAGE.
AND THIS BILL WOULD PUT IN SOME TIGHT RESTRICTIONS TO
MAKE SURE THAT WHEN THESE DRUGS ARE PRESCRIBED, EITHER THE PATIENT --
THE RESIDENT OR A FAMILY MEMBER UNDERSTANDS WHAT'S BEING DONE, THAT
THERE ARE RESTRICTIONS SO THAT ONCE THE PRESCRIPTION IS WRITTEN, IT ISN'T
JUST USED AGAIN AND AGAIN JUST AT THE CONVENIENCE OF STAFF, ET CETERA. AS
I SAY, IT'S A BILL WE HAVE PASSED BEFORE. IT IS STRONGLY SUPPORTED BY
PEOPLE WHO ADVOCATE FOR THE WELFARE OF NURSING HOME RESIDENTS.
ACTING SPEAKER AUBRY: MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. WOULD THE SPONSOR
YIELD?
ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
YOU YIELD?
MR. GOTTFRIED: CERTAINLY.
ACTING SPEAKER AUBRY: MR. GOTTFRIED YIELDS.
MR. GOODELL: THANK YOU, MR. GOTTFRIED. IS THERE
A DEFINITION OF "PSYCHOTROPIC DRUGS" IN THIS BILL?
MR. GOTTFRIED: YES. IT'S RIGHT THERE AT THE
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BEGINNING OF THE BILL. IT MEANS A DRUGS THAT AFFECTS -- IF YOU WANT ME TO
READ IT, I CAN: "A DRUG THAT AFFECTS BRAIN ACTIVITY ASSOCIATED WITH
MENTAL PROCESSES AND BEHAVIOR INCLUDING, BUT NOT LIMITED TO,
ANTIPSYCHOTICS, ANTIDEPRESSANTS, ANTIANXIETY DRUGS OR ANXIOLYTICS AND
HYPNOTICS."
MR. GOODELL: WOULD THIS, THEN, ALSO INCLUDE
MEDICAL MARIHUANA?
MR. GOTTFRIED: IT PROBABLY WOULD NOT BECAUSE
THE MEDICAL MARIHUANA LAW SAYS THAT IT IS NOT A DRUG FOR A LOT OF LEGAL
PURPOSES. IT'S AN INTERESTING QUESTION. I DON'T THINK MEDICAL MARIHUANA
FITS THE DESCRIPTION THAT -- FITS THIS DEFINITION, IN ANY EVENT. AND ALSO,
WITH MEDICAL MARIHUANA, AS WITH CONTROLLED SUBSTANCES, WE HAVE A
FAIRLY STRICT SYSTEM FOR KEEPING TRACK IN THE STATE'S SYSTEM OF MEDICAL
MARIHUANA CERTIFICATIONS FOR PATIENTS. IT'S ALSO, AT THE MOMENT, A -- A
VERY EXPENSIVE PRODUCT BECAUSE NO THIRD-PARTY COVERAGE COVERS IT.
MR. GOODELL: THANK YOU, MR. GOTTFRIED. THIS
BILL REQUIRES THAT ANY PRESCRIPTION BE RENEWED EVERY TWO WEEKS, WITH
CERTAIN EXCEPTIONS IN THE EVENT OF AN EMERGENCY SITUATION. BUT IF IT'S A
NON-EMERGENCY SITUATION, DOES THIS BILL PROVIDE AN ALTERNATIVE
MECHANISM FOR RENEWING A ROUTINE PRESCRIPTION WHERE THE
REPRESENTATIVE MAY BE UNAVAILABLE, OUT OF TOWN, ON VACATION, OR NOT
RESPONDING IN ORDER TO GIVE CONSENT? SO OTHER THAN AN EMERGENCY
SITUATION, IS THERE ANY OTHER EXEMPTION FROM REQUIRING REAUTHORIZATION
BY THE PATIENT OR A REPRESENTATIVE EVERY TWO WEEKS?
MR. GOTTFRIED: WELL, I HAVEN'T READ THE BILL WORD
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NYS ASSEMBLY MARCH 9, 2021
BY WORD IN A LITTLE WHILE, BUT I DON'T BELIEVE THERE IS SUCH AN
EXEMPTION. THE NURSING HOME WOULD CERTAINLY WANT TO PAY ATTENTION
TO THE PATIENT'S PRESCRIPTION AND WHEN IT'S COMING DUE FOR A -- FOR A
REFILL. BUT THESE ARE -- THESE ARE DANGEROUS DRUGS AND I WOULD NOT WANT
A -- A NURSING HOME TO FALL INTO THE HABIT OF DECIDING THAT THEY WANT TO
GO LOOK FOR APPROVAL FOR RENEWAL WHEN THEY HAVE A REASON TO BELIEVE
THAT THE FAMILY MEMBER IS NOT AVAILABLE, OR -- OR TO NOT REALLY LOOK THAT
HARD FOR THE FAMILY MEMBER AND THEN CLAIM, OH, WE COULDN'T REACH
THEM. PEOPLE NEED TO TAKE THESE DRUGS A LOT MORE SERIOUSLY AND
CAREFULLY AND -- AND PROFESSIONALLY THAN THEY DO.
MR. GOODELL: CERTAINLY MANY OF THESE
MEDICATIONS, AS YOU POINT OUT, ARE VERY SERIOUS, BUT ALSO FOR MANY OF
THESE MEDICATIONS, THERE'S VERY, VERY SERIOUS HEALTH CONSEQUENCES IF
THEY ARE CUT OFF WITHOUT THE PATIENT GOING THROUGH A --A REGIMEN OF
REDUCING THE PRESCRIPTION AMOUNTS OR -- OR OTHERWISE BEING CAREFULLY
MONITORED. IS THERE ANY PROVISION TO PROTECT THOSE PATIENTS WHO ARE ON
LONG-TERM MEDICATIONS WHERE THE TERMINATION OF THE PRESCRIPTION, OR
DELAY IN THE RENEWAL ITSELF COULD CAUSE VERY SERIOUS ISSUES? OTHER THAN
THE EMERGENCY PROVISIONS, IS THERE ANYTHING ELSE IN THIS BILL THAT WOULD
DEAL WITH THOSE TYPES OF DRUGS WHERE THERE'S VERY SERIOUS WITHDRAWAL
SYMPTOMS AND POTENTIALLY FATAL PROBLEMS IF A PRESCRIPTION IS NOT
RENEWED?
MR. GOTTFRIED: WELL, FIRST OF ALL, I DON'T THINK
THERE IS SUCH LANGUAGE IN THE BILL BUT, SECOND OF ALL, MORE IMPORTANTLY,
YOU KNOW, THIS BILL'S BEEN AROUND FOR A LONG TIME AND IN ALL THAT TIME,
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NYS ASSEMBLY MARCH 9, 2021
NO PHARMACIST HAS TOLD ME THERE'S A PROBLEM WITH THE LANGUAGE. NO --
I DON'T THINK ANY PHYSICIAN HAS SAID, GEE, YOU'RE NOT ADEQUATELY
PROVIDING FOR RENEWALS, ET CETERA, ET CETERA. YOU KNOW, NO -- NO
NURSING HOME RESIDENT ADVOCATE HAS EXPRESSED CONCERN ABOUT THE
LANGUAGE. SO I -- I THINK -- I THINK IF SOMEBODY HAS SAID THIS TO YOU, I
THINK THEY ARE RAISING A PHANTOM CONCERN AND I'D HAVE TO WONDER WHAT
THEIR AGENDA WAS.
MR. GOODELL: ALONG THOSE LINES, I'M -- I'M HAPPY
TO FORWARD SOME OF THE MEMOS IN OPPOSITION THAT WE'VE RECEIVED THAT
MAY BE HELPFUL IN FILLING OUT THAT ISSUE. ONE OTHER QUESTION I HAD --
MR. GOTTFRIED: MAY I ASK WHETHER ANY OF THOSE
MEMOS CAME FROM SOMEBODY OTHER THAN NURSING HOME OPERATORS OR
THEIR TRADE ASSOCIATIONS?
MR. GOODELL: YES. THE MEDICAL SOCIETY OF THE
STATE OF NEW YORK HAS A MEMO IN OPPOSITION.
MR. GOTTFRIED: OKAY.
MR. GOODELL: AND I ASSUME THEY ARE THOUGHTFUL
ON THESE KINDS OF ISSUES.
MR. GOTTFRIED: GENERALLY, ALTHOUGH THEIR -- THEIR
GENERAL VIEW ON LEGISLATION IS THAT ANYBODY WHO TELLS ANY DOCTOR THAT
ON ANY GIVEN OCCASION YOU CAN'T DO SOMETHING OR YOU HAVE TO FOLLOW
SOME PROCESS, THE MEDICAL SOCIETY, LIKE ALMOST EVERY OTHER GROUP IN
AMERICA, WILL OPPOSE IT BECAUSE THEY ASSUME THEY KNOW BEST.
MR. GOODELL: INDEED, AS DO WE, AS LEGISLATORS
SOMETIMES WE FEEL THE SAME WAY.
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NYS ASSEMBLY MARCH 9, 2021
MR. GOTTFRIED: AS A GROUP THEY MAY KNOW BEST,
BUT THERE ARE CERTAINLY INDIVIDUAL PHYSICIANS AND AN AWFUL LOT OF THEM
WORK FOR NURSING HOMES WHO COOPERATE IN THE -- IN THE OUTRAGEOUS
ABUSE OF THESE DRUGS, AND THAT'S A SERIOUS PROBLEM. AND IF THE NURSING
HOME OR THE DOCTOR HAS TO PLAN AHEAD AND THINK ABOUT RENEWAL, THAT'S
BETTER THAN HAVING A LOT OF NURSING HOME RESIDENTS ZONKED OUT AND
SUFFERING THE MEDICAL CONSEQUENCES.
MR. GOODELL: AS YOU KNOW, SOME OF THESE
PSYCHOTROPIC DRUGS ARE PRESCRIBED ON A LONG-TERM BASIS. I MEAN, WE'RE
TALKING ABOUT A PATIENT THAT MIGHT BE ON THEM FOR YEARS AND YEARS AT A
TIME. IS THERE ANY EXCEPTION -- ANY EXCEPTION IN THIS LEGISLATION FOR
THOSE TYPES OF DRUGS WHERE THE MEDICATION IS PERIODICALLY REVIEWED,
NOT EVERY TWO WEEKS, BUT PERIODICALLY REVIEWED, BUT INTENDED TO BE A
LONG-TERM MEDICATION?
MR. GOTTFRIED: NO. THE BILL -- IN ORDER TO BE
PROTECTIVE AND TO AVOID THE CIRCUMSTANCE WHERE A NURSING HOME SAYS,
OH, THIS IS REALLY GOOD FOR GRANDMA. JUST SAYS, OH, GRANDMA NEEDS
THIS PERMANENTLY AND GRANDMA IS ZONKED OUT PERMANENTLY. WE DON'T
WANT THAT. AND IF IT MEANS THAT SOMEBODY HAS TO THINK EVERY TWO
WEEKS ABOUT ARE WE DAMAGING GRANDMA FOR THE CONVENIENCE OF THE
NURSING HOME OPERATOR, THAT'S BETTER THAN WHAT'S GOING ON TODAY.
MR. GOODELL: WELL, I WAS VERY THANKFUL THAT NONE
OF MY GRANDPARENTS, NOR EVEN MY PARENTS HAD TO BE ON ANY
PSYCHOTROPIC DRUGS, BUT I'M ALSO AWARE THAT OFTENTIMES THESE DRUGS,
WHEN USED PROPERLY, ENABLE A RESIDENT TO HAVE A NORMAL PRODUCTIVE
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LIFE. I MEAN, THEY'RE EXTRAORDINARILY HELPFUL FOR -- FOR MANY PATIENTS.
SO I'D BE HESITANT TO SUGGEST THAT OUR LICENSED PHYSICIANS WHO ARE
PRESCRIBING THESE ARE DOING SO WITH THE INTENT OF ZONKING OUT GRANDMA,
BUT IF I MAY -- AS YOU KNOW, SOMETIMES --
MR. GOTTFRIED: BY THE WAY, CERTAINLY THERE ARE
PHYSICIANS, MAYBE IT'S EVEN THE VAST MAJORITY OF PHYSICIANS, WHO WHEN
THEY PRESCRIBE THESE DRUGS ARE DOING IT FOR WHAT THEY BELIEVE ARE GOOD
REASONS. BUT THE CENTERS FOR MEDICAID AND MEDICARE SERVICES AND ANY
NUMBER OF ADVOCACY GROUPS HAVE ALL SAID THAT THE ABUSE AND OVERUSE OF
PSYCHOTROPIC DRUGS IN OUR NURSING HOMES IS A REALLY SERIOUS PROBLEM
AND IT IS ESPECIALLY SERIOUS IN NEW YORK COMPARED WITH OTHER STATES.
MR. GOODELL: AND, INDEED, YOU ARE CORRECT, OF
COURSE, BUT IN RESPONSE TO THAT, HASN'T THE MEDICAID PROGRAM AND
FEDERAL REGULATIONS BEEN IMPLEMENTED TO ADDRESS THIS ISSUE
SPECIFICALLY, AND I'M REFERENCING, FOR EXAMPLE, THE REGULATIONS
CONTAINED IN 42 CFR 483.43. I MEAN, IT SEEMS THAT THE FEDERAL
GOVERNMENT HAS ALREADY ACTED IN THIS AREA, HAVEN'T THEY?
MR. GOTTFRIED: WELL, THEY'VE TAKEN SOME ACTION.
BY THE WAY, THE TWO WEEK RENEWAL RULE HAPPENS TO BE ONE OF THOSE
FEDERAL RULES. SO WE'RE NOT INVENTING THAT, THAT IS ONE OF THOSE FEDERAL
RULES. AND YES, THE FEDERAL GOVERNMENT HAS FOR MANY YEARS BEEN
CONCERNED ABOUT WHAT'S GOING ON WITH THESE DRUGS AND HAS TRIED TO
CRACK DOWN ON THEM. AND SOME OF THE LANGUAGE IN THIS BILL COPIES
SOME OF THE FEDERAL PROTECTIONS AND PUTS THOSE -- THE ENFORCEMENT OF
THOSE DIRECTLY IN THE HANDS OF -- OF THE STATE, AS -- AS WELL AS CMS, AND
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THAT'S IMPORTANT BECAUSE THE HEALTH DEPARTMENT IS HERE; CMS IS NOT
ALWAYS RIGHT HERE. SO YOU KNOW, YOUR POINT ABOUT FEDERAL REGULATIONS
IS A GOOD ONE, AND THE BILL IS CONSISTENT WITH THOSE FEDERAL REGULATIONS
BUT EVEN WITH THOSE FEDERAL REGULATIONS, NEW YORK IS STILL AN OUTLIER
ON THIS ISSUE, SO WE NEED TO DO BETTER.
MR. GOODELL: ONE OF THE OTHER ISSUES THAT'S BEEN
RAISED BY SOME FOLKS IS THAT SOMETIMES THE PATIENT MAY BE SEEN IN A
PHYSICIAN'S OFFICE WHICH IS ALWAYS, YOU KNOW, A PREFERABLE WAY TO DO
IT. THE PHYSICIAN, BASED ON A CAREFUL AND THOUGHTFUL ANALYSIS OF THE
PATIENT MAY PRESCRIBE MEDICATION AND THEN THE PATIENT SUBSEQUENTLY
GOES INTO A NURSING HOME. DO YOU ENVISION THAT PHYSICIANS WHO DON'T
NORMALLY PRACTICE IN NURSING HOMES ARE NOW GOING TO BE FORCED TO
MAKE, IF YOU WILL, IN A SENSE, A HOUSE CALL EVERY TWO WEEKS, OR DO YOU
ENVISION THAT A NURSING HOME PHYSICIAN OR SOMEONE EMPLOYED BY THE
NURSING HOME WOULD HAVE TO TAKE OVER THAT CASE?
MR. GOTTFRIED: WELL, THERE ARE CIRCUMSTANCES IN
WHICH A PHYSICIAN CAN PRESCRIBE A DRUG WITHOUT HAVING THE PHYSICAL
PRESENCE OF THE PATIENT IN FRONT OF A PHYSICIAN, EVEN MORE SO NOW THAT
WE HAVE MORE USE OF TELEHEALTH, BUT -- AND THIS BILL WOULD NOT CHANGE
THOSE RULES, BUT PARTICULARLY BECAUSE THE NURSING HOME PATIENT IS
ISOLATED FROM ORDINARY DAY-TO-DAY SOCIAL CONTACT WITH PEOPLE WHO
COULD LOOK AT GRANDMA OR GRANDPA AND SAY, OH MY GOD, YOU KNOW, HE
SHOULDN'T BE SITTING THERE ZONKED OUT LIKE THAT. WHAT -- WHAT THE HECK
IS GOING ON? THAT'S, YOU KNOW, THAT'S PART OF THE PROBLEM. AND SO FOR
A DOCTOR SITTING IN HIS OR HER OFFICE WRITING A PRESCRIPTION FOR WHO
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NYS ASSEMBLY MARCH 9, 2021
KNOWS HOW MANY MONTHS IS -- IS -- IS NOT GOING TO BE IN A POSITION TO
BE DOING -- TO BE USING THE SAME LEVEL OF CARE AS IF THAT DOCTOR EVERY
TWO WEEKS IS REMINDED TO REEXAMINE THE SITUATION.
MR. GOODELL: THANK YOU, MR. GOTTFRIED. I
APPRECIATE YOUR COMMENTS.
MR. GOTTFRIED: AND, BY THE WAY, THAT'S WHY THE
FEDERAL GOVERNMENT -- THAT'S WHY -- PART OF WHY THE FEDERAL
GOVERNMENT REQUIRES THAT.
MR. GOODELL: THANK YOU, MR. GOTTFRIED.
FOR SOMEONE WHO GREW UP IN THE -- THE 1960S, I WILL
SHARE WITH YOU THAT I DID NOT PARTICIPATE IN PSYCHOTROPIC DRUGS,
PRESCRIPTION OR OTHERWISE, BUT THERE WERE MANY PEOPLE WHO PAID GOOD
MONEY TO BE ZONKED OUT APPARENTLY DURING THAT TIME FRAME, BUT THAT'S A
LITTLE BIT DIFFERENT THAN WHAT WE'RE DEALING WITH NOW.
ON THE BILL, SIR.
ACTING SPEAKER AUBRY: ON THE BILL, MR. --
MR. GOODELL: I APPRECIATE THE OBJECTIVE OF MY
COLLEAGUE MR. GOTTFRIED TO ENSURE THAT THE MEDICATION FOR OUR NURSING
HOME PATIENTS IS APPROPRIATE, AND THAT'S A CONCERN THAT'S BEEN
ADDRESSED EXTENSIVELY BY FEDERAL REGULATIONS AND IS ALREADY COVERED
BY A LOT OF PROVISIONS. THE CONCERN THAT I HAVE IS THAT SOME OF THESE
PROVISIONS, WHILE CERTAINLY WELL-INTENDED, CREATE VERY PRACTICAL
PROBLEMS. FIRST, THIS BILL WOULD REQUIRE THAT THE PATIENT, IF THEY'RE
CAPABLE, IF NOT, A REPRESENTATIVE, SIGN OFF ON A RENEWAL OF A
PRESCRIPTION. SO EVEN IF THE PHYSICIAN REEXAMINES IT, DOES THE FULL JOB,
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NYS ASSEMBLY MARCH 9, 2021
RECOMMENDS IT, CANNOT ISSUE A NEW PRESCRIPTION UNLESS A REPRESENTATIVE
OR THE PATIENT SIGNS OFF, AND IF THE PATIENT'S NOT CAPABLE AND THE
REPRESENTATIVE IS UNAVAILABLE BECAUSE THEY'RE ON VACATION OR THEY'RE OUT
OF THE COUNTRY OR OUT OF THE AREA, THEN YOU RUN THE RISK THAT EVEN
THOUGH A PHYSICIAN HAS CAREFULLY ANALYZED THE SITUATION AND
RECOMMENDED THE CONTINUATION OF THE PRESCRIPTION, THAT CANNOT BE
RENEWED.
SO BECAUSE WE ALREADY HAVE COMPREHENSIVE
REGULATIONS ON THIS AND THERE'S A TREMENDOUS DANGER IF SOME OF THESE
DRUGS ARE NOT RENEWED IN A THOUGHTFUL MANNER, I'M COMPELLED TO VOTE
AGAINST IT AND WOULD RECOMMEND THAT MY COLLEAGUES OPPOSE IT,
ALTHOUGH I CERTAINLY APPRECIATE MY COLLEAGUE'S DESIRE TO MAKE SURE THAT
GRANDMA'S NOT ZONKED OUT. THANK YOU, SIR.
ACTING SPEAKER AUBRY: THANK YOU.
(PAUSE)
READ THE LAST SECTION.
THE CLERK: THIS ACT SHALL TAKE EFFECT ON THE 180TH
DAY.
ACTING SPEAKER AUBRY: THE CLERK WILL RECORD
THE VOTE ON ASSEMBLY PRINT A-5841-A. THIS IS A PARTY VOTE. ANY
MEMBER WHO WISHES TO BE RECORDED AS AN EXCEPTION TO THE CONFERENCE
POSITION IS REMINDED TO CONTACT THE MAJORITY OR MINORITY LEADER AT THE
NUMBERS PREVIOUSLY PROVIDED.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. THE REPUBLICAN
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NYS ASSEMBLY MARCH 9, 2021
PARTY -- OR CONFERENCE, RATHER, WILL BE GENERALLY IN THE NEGATIVE ON THIS
BILL, BUT THOSE WHO WOULD SUPPORT IT SHOULD PLEASE CALL THE MINORITY
LEADER'S OFFICE AND LET US KNOW. THANK YOU, SIR.
ACTING SPEAKER AUBRY: THANK YOU.
MS. HYNDMAN.
MS. HYNDMAN: I WOULD LIKE TO REMIND MY
COLLEAGUES THAT THIS IS A PARTY VOTE. MAJORITY MEMBERS WILL BE
RECORDED IN THE AFFIRMATIVE. IF THERE ARE ANY EXCEPTIONS, I ASK MAJORITY
MEMBERS TO CONTACT THE MAJORITY LEADER'S OFFICE AT THE NUMBER
PREVIOUSLY PROVIDED.
(THE CLERK RECORDED THE VOTE.)
ACTING SPEAKER AUBRY: THANK YOU. AND AS
IS OUR CUSTOM, WE'LL GET BACK TO IT, THIS IS THE FIRST VOTE OF THE DAY.
MR. STIRPE TO EXPLAIN HIS VOTE.
MR. STIRPE: THANK YOU, MR. SPEAKER. TO EXPLAIN
MY VOTE. MY FATHER SPENT THE LAST ELEVEN-AND-A-HALF YEARS OF HIS LIFE IN
A NURSING HOME, AND AFTER A FEW MONTHS OF HIM WALKING AROUND LATE AT
NIGHT AND BEING ATTACKED BY ANOTHER RESIDENT, THEY STARTED GIVING HIM
HALOPERIDOL, WHICH IS KNOWN AS HALDOL. WITHIN A FEW MONTHS, HE
STOPPED READING THE PAPER, HE STOPPED WATCHING TV AND WITHIN LESS
THAN A YEAR, HE STOPPED RECOGNIZING US OR ANYBODY ELSE. SO IT WAS
PERFECT FOR THE NURSING HOME. HE DIDN'T MOVE AROUND AT ALL AND THEY
ALWAYS KNEW WHERE HE WAS. BUT I JUST WANT TO THANK THE SPONSOR FOR
THIS SORELY-NEEDED BILL AND I HOPE THE SENATE PASSES IT. THANK YOU, SIR.
ACTING SPEAKER AUBRY: MR. STIRPE IN THE
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NYS ASSEMBLY MARCH 9, 2021
AFFIRMATIVE. THANK YOU, SIR.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. PLEASE RECORD THE
FOLLOWING REPUBLICAN MEMBERS IN THE AFFIRMATIVE: MR. ASHBY, MR.
BYRNE, MR. GANDOLFO, MR. MILLER -- I APOLOGIZE, MS. MILLER, MELISSA
MILLER -- MR. REILLY, MR. SCHMITT, MR. TANNOUSIS, AND ALREADY
RECORDED HERE ON THE FLOOR IS MR. DURSO, MR. LAWLER, MR. GIGLIO -- OR
MS. GIGLIO. THANK YOU, SIR.
ACTING SPEAKER AUBRY: THANK YOU. SO
NOTED.
MRS. PEOPLES-STOKES.
ARE THERE ANY OTHER VOTES? ANNOUNCE THE RESULTS.
(THE CLERK ANNOUNCED THE RESULTS.)
THE BILL IS PASSED.
ON THE A-CALENDAR, RULES REPORT NO. 34, THE CLERK
WILL READ.
THE CLERK: ASSEMBLY NO. A00232-C, RULES
REPORT NO. 34, GOTTFRIED, DARLING, WOERNER, GALEF, BARRON, DINOWITZ,
BRONSON, GONZÁLEZ-ROJAS, CUSICK, STECK, ANDERSON, SIMON, JACOBSON,
COOK, COLTON, FORREST, SANTABARBARA, GRIFFIN. AN ACT TO AMEND THE
PUBLIC HEALTH LAW, IN RELATION TO INCREASING MONETARY PENALTIES FOR
PUBLIC HEALTH LAW VIOLATIONS AND PROVIDING SUPPORT FOR THE NURSING
HOME QUALITY IMPROVEMENT DEMONSTRATION PROGRAM.
MR. GOODELL: EXPLANATION, PLEASE.
ACTING SPEAKER AUBRY: AN EXPLANATION IS
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NYS ASSEMBLY MARCH 9, 2021
REQUESTED, MR. GOTTFRIED. WE NEED YOU TO UNMUTE YOURSELF. THERE WE
GO.
MR. GOTTFRIED: OKAY. THANK YOU, MR. SPEAKER.
SO THIS BILL WOULD INCREASE PENALTIES UNDER THE PUBLIC
HEALTH LAW IN SEVERAL WAYS. THE BASIC $2,000 PENALTY, WHICH HAS NOT
BEEN RAISED IN AN AWFUL LOT OF YEARS, WOULD BE RAISED TO $3,000; SAME
FOR PENALTIES IMPOSED BY LOCAL HEALTH DEPARTMENTS. FOR A VIOLATION
INVOLVING A NURSING HOME, A GENERAL HOSPITAL OR THINGS THAT ARE
COMMONLY CALLED ADULT HOMES, THE PENALTY WOULD BE RAISED TO $5,000.
FOR A SECOND OFFENSE WITHIN 12 MONTHS THAT INVOLVES DANGER TO HEALTH
AND SAFETY WHICH CURRENTLY HAS A $5,000 PENALTY, THAT WOULD GO UP TO
$10,000. AND FOR A VIOLATION THAT INVOLVES ACTUAL SERIOUS PHYSICAL
HARM TO A PATIENT, THE CURRENT $10,000 MAXIMUM PENALTY WOULD GO TO
$20,000. AND FOR PENALTIES INVOLVING A NURSING HOME WHERE THE DOLLAR
AMOUNT IS MORE THAN $10,000, THE EXCESS WOULD BE PAID INTO THE
NURSING HOME QUALITY IMPROVEMENT PROGRAM.
AND LET ME STRESS, THESE ARE MAXIMUM PENALTIES. IN
THE VAST MAJORITY OF CASES, THE PENALTY THAT IS ASSESSED IS DRAMATICALLY
LESS THAN THE MAXIMUM AND IN MANY CASES WHERE A PENALTY OR VIOLATION
IS FOUND, YOU KNOW, IF THE -- THE WRONGDOER CAN GENERALLY BARGAIN THEIR
WAY DOWN TO NO PENALTY IF THEY EVENTUALLY FIX THE PROBLEM. THE
PRIVILEGE THAT MOST NEW YORKERS WHO MIGHT GET ACCUSED OF
WRONGDOING ARE NOT AFFORDED.
ACTING SPEAKER AUBRY: MR. BYRNE.
MR. BYRNE: THANK YOU, MR. SPEAKER. WILL THE
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SPONSOR YIELD FOR SOME QUESTIONS?
ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
YOU YIELD?
MR. GOTTFRIED: CERTAINLY.
ACTING SPEAKER AUBRY: THE SPONSOR YIELDS.
MR. BYRNE: THANK YOU, MR. SPEAKER AND THANK
YOU, MR. CHAIRMAN. WE HAD SOME SIMILAR CONVERSATION IN COMMITTEE
EARLIER TODAY ABOUT FINES AND PENALTIES, SO I'M GOING TO TRY TO GO
THROUGH SOME OF THOSE SAME QUESTIONS, BUT BEFORE I START I DO WANT TO
COMMENT AGAIN, LIKE I DID IN COMMITTEE, THAT I'M GLAD THAT WE'RE
HAVING THIS DEBATE HERE AS A LEGISLATURE AND THAT THIS ISN'T CRAMMED
SIMPLY IN THE BUDGET, BECAUSE I KNOW THERE'S A SIMILAR PROPOSAL BUT
EVEN MORE EXTENSIVE IN THE GOVERNOR'S 30-DAY AMENDMENTS. WOULD
YOU MIND JUST BRIEFLY TRYING TO EXPLAIN THE DIFFERENCE BETWEEN THIS
BILL-IN-CHIEF AND SOME OF THE BUDGET AMENDMENTS?
MR. GOTTFRIED: WELL, FIRST OF ALL, BEFORE I DO THAT
I WANT TO APOLOGIZE TO YOU AND OTHER HEALTH COMMITTEE MEMBERS. I
MADE A MISTAKE IN THE MEETING WHEN WE WERE DISCUSSING THE PENALTIES.
I GUESS IN THE CONTEXT OF ONE OF THE OTHER BILLS WE MAY BE DOING TODAY
WHERE I SAID THAT THE PUBLIC HEALTH LAW SECTION 12 PENALTIES HAS
LANGUAGE THAT SAYS IF THERE IS SOME OTHER PIECE OF LAW THAT SETS A
DIFFERENT PENALTY, THAT OTHER ONE APPLIES. I WAS MISREMEMBERING A
PROVISION THAT SAID THAT IF SOME OTHER PIECE OF LAW SAYS THAT SOMETHING
IS A MISDEMEANOR OR A FELONY THAT APPLIES, BUT THE PUBLIC HEALTH LAW
DOES NOT SAY WHAT I SAID IT SAYS.
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NYS ASSEMBLY MARCH 9, 2021
AS FOR YOUR -- YOUR QUESTION, WHAT I ELABORATE ON THE
DIFFERENCES BETWEEN THE BILL IN FRONT OF US AND WHAT'S IN THE GOVERNOR'S
BUDGET PROPOSAL, I WILL SAY THAT WHAT'S IN THE GOVERNOR'S BUDGET RAISES
PENALTIES A WHOLE LOT MORE THAN THIS BILL DOES. I THINK WHERE WE
INCREASE THE PENALTY, LIKE, FROM $2,000 TO $3,000 I THINK HE EVEN
INCREASES IT FROM $2,000 TO $10,000. SO IF YOU THINK THIS IS HARSH,
WE'RE -- WE'RE NOWHERE NEAR IN THE GOVERNOR'S BALLPARK ON THAT POINT.
AND SO I -- YOU KNOW, WE'LL -- WE'LL SEE WHETHER ANY OF THAT GETS -- GETS
DONE AS PART OF THE BUDGET, BUT THIS BILL IS -- IS VERY DIFFERENT AND HAS
MUCH LOWER PENALTIES THAN THE GOVERNOR'S PROPOSING.
MR. BYRNE: WELL, THAT WAS MY READ AND WHILE I'LL
LIKELY BE OBJECTING AND VOTING NO ON THIS BILL, I WOULD SAY THAT IF I HAD
TO PICK BETWEEN THIS ONE OR THE GOVERNOR'S PROPOSAL, I WOULD PICK THIS
ONE, SO I WILL SAY THAT.
MR. GOTTFRIED: GOOD CHOICE.
MR. BYRNE: IT'S THE PREFERABLE OF THE TWO. BUT I DO
HAVE --
(LAUGHTER)
-- THANK YOU, AND THANK YOU FOR YOUR COMMENTS
EARLIER CLARIFYING THE RECORD FROM -- FROM OUR DISCUSSION IN COMMITTEE.
AS ALWAYS, WHEN WE TALK ABOUT INCREASING FINES AND PENALTIES, I THINK
THERE'S THIS INTENTION TO HELP DRIVE BETTER BEHAVIOR, BETTER ACTIONS, AND
HOPEFULLY BETTER QUALITY CARE, BUT THERE'S ALSO THIS OTHER CONCERN ABOUT,
WELL, WHERE ARE THOSE DOLLARS COMING FROM WHERE THEY COULD OTHERWISE
BE USED TO MAYBE INVEST IN CAPITAL EXPENSES, TO MAKE NOT ONLY TO HELP
19
NYS ASSEMBLY MARCH 9, 2021
WITH, PERHAPS, STAFFING, BUT ALSO JUST QUALITY OF LIFE ISSUES IN SOME OF
THESE FACILITIES, NOT NECESSARILY ALWAYS CARE, BUT THERE'S OTHER AMENITIES
THAT THEY COULD ADD THAT ARE NOT ALWAYS DIRECTLY TIED TO CARE. AND WHEN
WE'RE ADDING PENALTIES, SOMETIMES THERE'S THAT RISK OF TAKING THOSE --
THOSE DOLLARS AND RESOURCES FROM THEM.
I DO WANT TO -- OBVIOUSLY IF THEY DO SOMETHING THAT'S --
THAT'S WRONG, WE'RE NOT SAYING THERE SHOULDN'T BE ANY SORT OF
PUNISHMENT. YOUR COMMENT, I NOTICED YOU WERE SAYING, YOU'RE RIGHT.
A MAJORITY OF THESE FINES ARE LESS THAN THE MAXIMUM. A LOT OF THEM
MAY BE LESS THAN THE EXISTING MAXIMUM. SO LET ME JUST POSE THAT
QUESTION. IF -- IF SO MANY OF THEM ARE LESS THAN THE MAXIMUM, WHY ARE
WE LOOKING TO INCREASE IT NOW? IS THAT -- ARE WE LOOKING TO HAVE ALL OF
THESE -- BASICALLY ALL THE FINES BE SCALED UP?
MR. GOTTFRIED: WELL, I THINK -- I THINK THERE ARE
CASES IN WHICH THE MAXIMUM FINE IS LEVIED AND IN CASES IN WHICH YOU
WOULD WISH THAT THE FINE COULD BE SUBSTANTIALLY HIGHER, ESPECIALLY IN
THE CATEGORIES IN THIS BILL OF REPEAT OFFENDERS AND PEOPLE THAT CAUSE
HARM AND, REMEMBER, THE -- THE -- THE BASIC $2,000 PENALTY HAS NOT
BEEN TOUCHED IN MANY, MANY YEARS, I FORGET EXACTLY HOW MANY, BUT IF
YOU WERE JUST ADJUSTING FOR INFLATION YOU'D BE DOING THIS OR MORE. AND
ALSO, YOU KNOW, IF THE -- THE PENALTY IS $2,000 AND YOU'RE AN INSPECTOR
AND YOU SAY, WELL, THIS ISN'T THE WORST CASE I'VE SEEN, SO I'LL PROPOSE
$1,000. IF THE MAXIMUM IS $3,000 THEN MAYBE INSTEAD OF
RECOMMENDING $1,000 YOU MIGHT RECOMMEND $1,500. AND GIVEN
INFLATION SINCE THE LAST TIME WE LOOKED AT THESE PENALTIES, I THINK THAT'S
20
NYS ASSEMBLY MARCH 9, 2021
APPROPRIATE.
AND ON THE OTHER POINT ABOUT DOES THIS TAKE MONEY
AWAY FROM PATIENT CARE, YOU KNOW, UNFORTUNATELY THE -- THE PEOPLE WHO
GAVE -- (INAUDIBLE/MIC CUT OUT) WHOSE CONDUCT PUTS THEM IN LINE FOR
HIGHER FINES, PARTICULARLY FOR REPEAT OFFENDERS AND PEOPLE WHOSE
OFFENSES CAUSED ACTUAL HARM, WHICH IS WHERE THE -- THE REAL MEAT OF
THIS BILL IS, THOSE PEOPLE ARE NOT PEOPLE WHO IF THEY WEREN'T PAYING THE
FINE THEY'D BE PAYING FOR EXTRA NURSES OR EXTRA QUALITY FOOD. THEY'RE
PEOPLE WHO IF THEY WEREN'T PAYING A FINE IT WOULD EITHER BE GOING INTO
PROFIT OR -- OR AN EXECUTIVE SALARY OR FATTENING A CONTRACT WITH A -- WITH
A CONTRACTOR THAT THEY HAVE AN ECONOMIC RELATIONSHIP TO. SO THE NOTION
THAT WE'RE TAKING MONEY -- WE'RE TAKING FOOD OUT OF THE MOUTHS OF
NURSING HOME RESIDENTS I -- I THINK IS A FANTASY.
MR. BYRNE: WELL, ANOTHER QUESTION, SINCE YOU DID
KIND OF MENTION THIS I THINK EARLIER, THIS IS AMENDING THE PUBLIC HEALTH
LAW SO THIS IS NOT TARGETED AT ONE SPECIFIC SECTOR IN HEALTH CARE. THIS IS
-- THIS IS ALL SECTORS, THIS IS HOSPITALS, THIS IS NURSING FACILITIES, THIS IS
FULL CARE FACILITIES, PRIVATE, NON-PROFIT, PUBLIC SECTOR, ALL OF THE ABOVE;
THAT'S CORRECT?
MR. GOTTFRIED: THAT IS CORRECT.
MR. BYRNE: OKAY. AND I THINK THAT -- I THINK THAT'S
-- WHILE WE TALKED ABOUT THESE THINGS, I THINK THAT MAKES -- THAT MAKES
SENSE, WE -- WE AT LEAST LOOK AT -- TREAT THEM ALL EQUALLY. I JUST -- I
BRING THAT UP BECAUSE I KNOW IN PREVIOUS DEBATES ON OTHER BILLS WE --
WE KIND OF GET THIS -- THIS PERSPECTIVE ABOUT A CERTAIN SECTOR IS A CERTAIN
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NYS ASSEMBLY MARCH 9, 2021
WAY AND IF THERE'S -- THERE'S ISSUES, I THINK IT SHOULD BE LOOKED AT
REGARDLESS OF WHAT SECTOR THEY COME FROM. AND I -- I DO HAVE CONCERNS
ULTIMATELY THAT THIS MIGHT BE STILL TOO MUCH OF AN INCREASE, BUT I AGAIN,
MR. CHAIRMAN, I'LL THANK YOU FOR YOUR WORK ON THIS BILL. WHILE I WILL
BE VOTING NO, I DO PREFER IT THAN -- OTHER THAN THE BUDGET PROPOSAL FROM
THE GOVERNOR AND THE 30 DAY AMENDMENTS. SO WHILE I DON'T LIKE THESE
THINGS IN THE BUDGET TO BEGIN WITH, IF IT DOES, I WOULD RATHER HAVE YOURS
THAN THE GOVERNOR'S. THANK YOU.
MR. GOTTFRIED: THANK YOU.
ACTING SPEAKER AUBRY: THANK YOU.
MS. WALSH.
READ THE LAST SECTION.
THE CLERK: THIS ACT SHALL TAKE EFFECT IMMEDIATELY.
ACTING SPEAKER AUBRY: THE CLERK WILL RECORD
THE VOTE ON ASSEMBLY PRINT A-232-C. THIS IS A PARTY VOTE. ANY
MEMBER WHO WISHES TO BE RECORDED AS AN EXCEPTION TO THE CONFERENCE
POSITION IS REMINDED TO CONTACT THE MAJORITY OR MINORITY LEADER AT THE
NUMBERS PREVIOUSLY PROVIDED.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. ON RULES REPORT
NO. 34, ASSEMBLY BILL NO. 232-C, THE REPUBLICAN CONFERENCE IS
GENERALLY VOTING IN THE NEGATIVE. IF THERE ARE ANY MEMBERS WHO'D LIKE
TO VOTE IN THE AFFIRMATIVE, PLEASE CONTACT THE MINORITY LEADER'S OFFICE.
THANK YOU, SIR.
ACTING SPEAKER AUBRY: THANK YOU.
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NYS ASSEMBLY MARCH 9, 2021
MRS. PEOPLES-STOKES.
MRS. PEOPLES-STOKES: MAJORITY COLLEAGUES, THIS
WILL BE A MAJORITY MEMBERS IN THE AFFIRMATIVE ON THIS ONE. SHOULD
COLLEAGUES DESIRE TO VOTE NEGATIVE, PLEASE FEEL FREE TO CONTACT THE
MAJORITY LEADER'S OFFICE. WE WILL SO APPROPRIATELY RECORD YOUR VOTE.
ACTING SPEAKER AUBRY: THANK YOU, MRS.
PEOPLES-STOKES.
(THE CLERK RECORDED THE VOTE.)
MS. WALSH.
MS. WALSH: THANK YOU, MR. SPEAKER. TO EXPLAIN
MY VOTE.
ACTING SPEAKER AUBRY: TO EXPLAIN HER VOTE,
MS. WALSH.
MS. WALSH: YES, THANK YOU. I DIDN'T HAVE ANY
QUESTIONS BECAUSE MY -- MY COLLEAGUE MR. BYRNE ASKED THEM ALL, SO
THAT'S WHY I DIDN'T DEBATE THAT BILL, BUT I DO WANT TO SAY THAT I -- I AGREE
THAT WE DO NEED TO DETER BAD BEHAVIOR AND I THINK THAT THESE FINES HAD
NOT BEEN -- AND PENALTIES HAVE NOT BEEN INCREASED SINCE 2008, WHICH IS
13, IF MY MATH IS RIGHT, IS 13 YEARS AGO; THAT'S QUITE A LONG TIME. SO I
AM GOING TO BE VOTING IN FAVOR OF THIS BILL BECAUSE I THINK THAT IT SERVES
AN IMPORTANT PUBLIC POLICY. SO I WILL BE IN FAVOR OF IT. THANK YOU.
ACTING SPEAKER AUBRY: THANK YOU, MS.
WALSH.
MR. LAWLER.
MR. LAWLER: THANK YOU, MR. SPEAKER. I
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NYS ASSEMBLY MARCH 9, 2021
APPRECIATE THE SPONSOR PUTTING THIS BILL FORWARD. AS MY COLLEAGUE JUST
SAID, THESE FINES HAVE NOT BEEN RAISED IN MANY YEARS AND GIVEN WHAT
WE HAVE EXPERIENCED THIS YEAR AS A DETERRENT TO ENSURE THAT OUR NURSING
HOMES ARE DOING WHAT IS RIGHT AND DOING WHAT IS IN THE BEST INTEREST OF
THEIR PATIENTS, I -- I SUPPORT THE PUSH TO INCREASE THE FINES. I DON'T THINK
IT IS TOO EXORBITANT AN INCREASE AND I -- I THINK OBVIOUSLY GIVEN WHAT
WE HAVE SEEN AND WHAT WE ARE DEALING WITH IS IMPORTANT TO DO SO, SO I
WILL BE VOTING IN THE AFFIRMATIVE.
ACTING SPEAKER AUBRY: MR. LAWLER IN THE
AFFIRMATIVE.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. AS IS APTLY
DEMONSTRATED ON THIS BILL, THE REPUBLICAN CONFERENCE BELIEVES IN THE
BIG TENT WITH ENCOURAGING OUR MEMBERS TO EXPRESS THEIR PERSONAL
VIEWS, AND I THINK WE'RE ALL STRENGTHENED BY THAT DIVERSITY. HAVING
SAID THAT, WITH THE GREATEST RESPECT AND ADMIRATION FOR A COUPLE OF MY
COLLEAGUES, I WANTED TO MENTION THE REASONS WHY I'M VOTING NO.
DURING THE LAST YEAR WE'VE SEEN AN EXTRAORDINARY
DIFFICULT TIME FOR MANY OF OUR RESTAURANTS, HEALTH CARE WORKERS,
BUSINESSES, NURSING HOMES. IN MY DISTRICT, OUR NURSING HOME WAS
STRUGGLING TO PROVIDE THE HIGH-QUALITY CARE. ONE OF MY NURSING HOMES
IN PARTICULAR NEVER HAD A CITATION. THEY HAD A SUBSTANTIAL NUMBER OF
THEIR STAFF THAT WERE OUT ON QUARANTINE AND, AS YOU KNOW, PARTICULARLY
DURING THE EARLY PHASES, PEOPLE WOULD GO OUT ON QUARANTINE IF THEY
WERE EXPOSED AND THERE WASN'T ENOUGH TEST KITS AROUND. AND THEN THEY
24
NYS ASSEMBLY MARCH 9, 2021
FOLLOWED IT UP WITH A MASSIVE AMOUNT OF TESTING, WHICH WAS
EXTRAORDINARILY DISRUPTIVE, AND THEN IF THEY HAD A POSITIVE CASE THEY
HAD TO IMPLEMENT VERY STRICT PROTOCOLS. AND IN ONE OF MY NURSING
HOMES, THE ADMINISTRATOR HERSELF WAS DELIVERING MEALS TO THE RESIDENTS
BECAUSE THEY WERE SO SHORT-STAFFED. AND WE'VE SEEN RESTAURANTS WHO
ARE JUST STRUGGLING TO STAY ALIVE, AND TAKE-OUT WAS FINE FOR SOME
RESTAURANTS, BUT WITHOUT FULL CAPACITY, MANY OF THE RESTAURANTS IN MY
DISTRICTS COULDN'T EVEN SURVIVE.
AND SO TO COME UP RIGHT AT THIS TIME AND TALK ABOUT
INCREASING FINES ANYWHERE FROM 50 PERCENT OR DOUBLING FINES, IT'S THE
WRONG MESSAGE. WE NEED TO HELP OUR BUSINESSES SURVIVE, MOVE
FORWARD RATHER THAN COMING AT THEM WITH A BIG STICK, WE NEED TO BE
ENCOURAGING THEM EVERY WAY WE CAN TO SURVIVE. THANK YOU, SIR.
ACTING SPEAKER AUBRY: MR. GOODELL IN THE
NEGATIVE.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. THE FOLLOWING
HIGHLY RESPECTED MEMBERS FROM MY CONFERENCE ARE VOTING YES: MR.
LAWLER, MS. MILLER, MS. WALSH AND MR. DURSO. THANK YOU, SIR.
ACTING SPEAKER AUBRY: SO NOTED.
ARE THERE ANY OTHER VOTES? ANNOUNCE THE RESULTS.
(THE CLERK ANNOUNCED THE RESULTS.)
THE BILL IS PASSED.
THE CLERK: ASSEMBLY NO. A01010-A, RULES
REPORT NO. 35, BRONSON, LUPARDO, SEAWRIGHT, STERN, CLARK, GOTTFRIED,
25
NYS ASSEMBLY MARCH 9, 2021
NOLAN, JACOBSON, MEEKS, SIMON, ENGLEBRIGHT, GRIFFIN, LUNSFORD,
AUBRY, FORREST, SANTABARBARA, ANDERSON. AN ACT TO AMEND THE PUBLIC
HEALTH LAW, IN RELATION TO DIRECTING THE DEPARTMENT OF HEALTH TO MAKE
PUBLICLY AVAILABLE THE RESULTS OF ALL INSPECTIONS CONDUCTED BY SUCH
DEPARTMENT IN NURSING HOMES AND OTHER RESIDENTIAL HEALTH CARE
FACILITIES IN THE STATE DURING THE COVID-19 STATE DISASTER EMERGENCY
AND THEREAFTER.
ACTING SPEAKER AUBRY: AN EXPLANATION IS
REQUESTED, MR. BRONSON.
MR. BRONSON: YES, MR. SPEAKER. THIS BILL WOULD
REQUIRE THE COMMISSIONER OF HEALTH TO PUBLISH EACH NURSING HOME
INSPECTION ON THEIR WEBSITE WITHIN 30 DAYS OF THE ENACTMENT OF THE BILL,
AND ANY PATIENT IDENTIFYING INFORMATION WOULD BE REDACTED FROM THE
PUBLISHED INFORMATION.
ACTING SPEAKER AUBRY: MS. WALSH.
MS. WALSH: MR. SPEAKER, WILL THE SPONSOR YIELD
FOR JUST A FEW QUESTIONS?
ACTING SPEAKER AUBRY: MR. BRONSON, WILL
YOU YIELD?
MR. BRONSON: YES, I WILL, MR. SPEAKER.
ACTING SPEAKER AUBRY: THE SPONSOR YIELDS.
MS. WALSH: THANK YOU SO MUCH. SO JUST A COUPLE
OF QUESTIONS. AS FAR AS THE TIME FRAME OF 30 DAYS, DO YOU BELIEVE THAT
THAT IS A REALISTIC TIME FRAME TO ACCOMPLISH THE POSTING THAT THE BILL IS
GOING TO REQUIRE?
26
NYS ASSEMBLY MARCH 9, 2021
MR. BRONSON: THE -- YES, BECAUSE THEY HAVE THIS
INFORMATION AND PREVIOUSLY, THERE WAS REQUIREMENTS FOR THEM TO HAVE
THIS INFORMATION AVAILABLE FOR FOIL REQUESTS AND THINGS OF THAT NATURE.
CURRENT LAW REQUIRES SUMMARIES OF THESE REPORTS TO BE PROVIDED, BUT
NOT THE ACTUAL REPORT. SO THEY HAVE THE INFORMATION. WE -- WE CHOSE
TO ONLY GO BACK TO A START DATE OF MARCH 7TH WHICH IS AROUND THE
BEGINNING OF THE COVID SITUATION, AND WE FELT IT WAS IMPORTANT FOR
THIS INFORMATION TO GET UP ON THIS WEBSITE AS SOON AS POSSIBLE FOR
FAMILY MEMBERS AND OTHERS TO HAVE THE INFORMATION AVAILABLE TO THEM.
MS. WALSH: YEAH, AND WHILE I COMPLETELY AGREE
WITH YOU THAT I THINK THAT THIS IS VERY IMPORTANT INFORMATION THAT I
WOULD WANT TO HAVE, YOU KNOW, REGARDING A PLACE WHERE MY OWN
LOVED ONE WAS LIVING, I JUST -- I WAS WONDERING HOW LONG IT'S TAKING
CURRENTLY FOR THIS INFORMATION EVEN IN THE SUMMARY FORM THAT YOU
INDICATED, THE LESS DETAILED FORM, IS MAKING IT ON TO A WEBSITE. ISN'T IT
MANY, MANY MONTHS OR, LIKE, OVER A YEAR ON AVERAGE DOESN'T IT TAKE TO
GET ON -- ON TO THE WEBSITE?
MR. BRONSON: WELL, IF IT'S TAKING -- I -- I DON'T
KNOW IF THAT'S THE CASE, BUT IF IT'S TAKING THAT LONG IT'S UNACCEPTABLE.
AND THIS LAW IS GOING TO REQUIRE 30 DAYS AND, YOU KNOW, CERTAINLY IN
THE BEGINNING FOR THEM TO CATCH UP FROM MARCH 7TH TO THE DATE THAT THIS
LAW IS -- IS SIGNED AND IMPLEMENTED, YOU KNOW, THAT -- THAT MAY HAVE
SOME BURDEN ON THE DEPARTMENT OF HEALTH BUT, YOU KNOW, I THINK THAT
BURDEN IS FAR OUTWEIGHED BY THE NEED FOR FAMILIES TO HAVE THIS
INFORMATION AND, QUITE FRANKLY, THE NEED FOR THE LEGISLATURE TO HAVE
27
NYS ASSEMBLY MARCH 9, 2021
THAT INFORMATION AVAILABLE. SO WITH THAT ADDITIONAL INFORMATION, WE
POSSIBLY COULD BE MAKING POLICY DECISIONS THAT WILL IMPROVE THE
SITUATIONS THAT IS HAPPENING IN NURSING HOMES.
MS. WALSH: SO ONE QUESTION I HAD IS WHAT ABOUT A
FACILITY'S RESPONSE TO AN INSPECTION? SO SAY THAT THERE'S AN INSPECTION
AND THERE'S CERTAIN DEFICIENCIES THAT HAVE BEEN NOTED IN THE COURSE OF
THE INSPECTION. WILL THE WEBSITE INDICATE THE FACILITY'S RESPONSE TO THAT
ASSESSED DEFICIENCY?
MR. BRONSON: IT -- IT -- IT DOESN'T CALL FOR THEIR
RESPONSE, BUT IT DOES CALL FOR THE NEED FOR WHATEVER THE CORRECTIVE
ACTIONS ARE REQUIRED. SO THE CORRECTIVE ACTIONS WOULD BE REQUIRED, BUT
NOT NECESSARILY, YOU KNOW, IF THEY HAVE A RETORT OR A RESPONSE OR THEY
HAVE A COUNTER POSITION; THE LEGISLATION DOESN'T SPEAK TO THAT BEING
PUBLISHED.
MS. WALSH: ALL RIGHT, YEAH, AND THAT'S KIND OF WHAT
I WAS GETTING AT. SO IF -- IF YOU'RE NOT GOING TO -- AND I MEAN THIS IS
VERY IMPORTANT DATA THAT I'M SURE WILL BE RELIED UPON BY FAMILY
MEMBERS BECAUSE IT WILL ALLOW USERS TO COMPARE NURSING HOMES
THROUGHOUT NEW YORK. SO I THINK IT'S IMPORTANT THAT INFORMATION GET
OUT THERE, BUT ALSO IF THERE -- IF THERE IS A POSITION THAT THE FACILITY HAS,
IT SEEMS LIKE THAT MIGHT BE SOMETHING THAT SHOULD ALSO BE INDICATED. IF
THERE IS CORRECTIVE ACTION THAT IS BEING REQUIRED, WILL THE WEBSITE BE
UPDATED TO INDICATE PERHAPS THAT THOSE DEFICIENCIES HAVE BEEN
ADDRESSED AND HOW QUICKLY OR ANYTHING LIKE THAT?
MR. BRONSON: WELL, IT DOESN'T SPECIFICALLY REQUIRE
28
NYS ASSEMBLY MARCH 9, 2021
THAT, BUT CERTAINLY THAT WOULD BE ALLOWED. IT'S NOT REQUIRED. WHAT'S
REQUIRED IS THAT THE INSPECTION AND THE RESULTS OF THE INSPECTION ARE --
ARE POSTED. CERTAINLY -- AND INCLUDED IN THOSE INSPECTIONS, AS I
UNDERSTAND IT, IS, YOU KNOW, WHAT WOULD BE THE REMEDIAL STEPS THAT ARE
NECESSARY. SO, YOU KNOW, THE INFORMATION'S OUT THERE AND THE PUBLIC,
FAMILIES, THE LEGISLATURE, WE WOULD BE ABLE TO FOLLOW UP AND -- AND
CHECK WITH THE NURSING HOME TO SEE IF THEY'VE TAKEN CORRECTIVE STEPS.
MS. WALSH: THANK YOU VERY MUCH.
MR. SPEAKER, ON THE BILL.
MR. BRONSON: THANK YOU.
ACTING SPEAKER AUBRY: ON THE BILL, MS.
WALSH.
MS. WALSH: SO I COMPLETELY AGREE WITH THE
SPONSOR AND I THANK THE SPONSOR FOR BRINGING THIS BILL FORWARD IN TERMS
OF WANTING TO PROVIDE GOOD, ACCURATE INFORMATION IN A REASONABLE TIME
FRAME THAT WILL ALLOW LOVED ONES TO BE ABLE TO HELP TO SEEK OUT THE BEST
CARE FOR THEIR -- FOR THEIR FAMILY MEMBERS THROUGHOUT THE STATE. I
WOULD JUST SUGGEST, AND THAT'S KIND OF WHERE I WAS TRYING TO GO WITH MY
QUESTIONING, THAT THERE IS KIND OF ANOTHER SIDE TO A STORY AND I THINK IT
WOULD BE GOOD INFORMATION, I WOULD WANT TO KNOW AS A FAMILY
MEMBER, WELL, IF THERE WAS A DEFICIENCY BUT IF IT WAS CORRECTED AND IT
WAS CORRECTED IMMEDIATELY, THAT WOULD ALSO TELL ME SOMETHING THAT
MIGHT BE USEFUL INFORMATION IN MAKING DETERMINATIONS ABOUT WHERE TO
PLACE MY LOVED ONE.
SO I WOULD, YOU KNOW, I WOULD ENCOURAGE THAT
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NYS ASSEMBLY MARCH 9, 2021
CONSIDERATION. I UNDERSTAND THAT THIS IS PERHAPS A LOT OF DATA THAT'S
GOING TO BE PUT INTO THE WEBSITE, BUT MAYBE MOVING FORWARD THAT COULD
BE CONSIDERED. I THINK JUST OUT OF FAIRNESS TO THE NURSING HOME
FACILITIES WHO WILL OBVIOUSLY WANT TO TAKE CORRECTIVE ACTION, THE GOOD
ONES WILL, AND IT WOULD BE GOOD TO NOTE THAT FOR PEOPLE WHO ARE
INTERESTED IN THE CONSUMERS. SO THANK YOU.
ACTING SPEAKER AUBRY: THANK YOU, MS.
WALSH.
MR. MANKTELOW.
MR. MANKTELOW: THANK YOU, MR. SPEAKER.
WOULD THE SPONSOR YIELD FOR A FEW QUESTIONS?
ACTING SPEAKER AUBRY: MR. BRONSON, WILL
YOU YIELD?
MR. BRONSON: YES, I WILL, MR. SPEAKER.
ACTING SPEAKER AUBRY: MR. BRONSON YIELDS.
MR. MANKTELOW: THANK YOU, MR. BRONSON. IT'S
GOOD TO SEE YOU. I WISH YOU WERE ON THE FLOOR DOWN HERE WITH ME, BUT
IT'S GOOD TO SEE YOU ON -- ON THE SCREEN. ONE OF THE QUESTIONS I HAD
WAS THE 30 DAYS, IS THAT FROM THE START OF THE INVESTIGATION OR IS THAT
FROM THE DAY OF THE FINDINGS?
MR. BRONSON: IT WOULD BE ONCE THE INSPECTION IS
COMPLETED AS WE MOVE FORWARD. CERTAINLY THERE WERE INSPECTIONS THAT
WERE CONDUCTED SINCE MARCH 7TH, SO THAT WOULD BE 30 DAYS FROM THE
SIGNING OF THE LAW.
MR. MANKTELOW: ALL RIGHT, THANK YOU, SIR. AND
30
NYS ASSEMBLY MARCH 9, 2021
DO THESE INSPECTION REPORTS INCLUDE ONLY ANNUAL INSPECTIONS OR DO THEY
ALSO INCLUDE DOH INSPECTIONS SUCH AS INFECTION CONTROL OR
RESIDENT/FAMILY COMPLAINTS?
MR. BRONSON: THESE ARE DEPARTMENT OF HEALTH
INSPECTIONS OF NURSING HOMES.
MR. MANKTELOW: SO THESE THAT I JUST SAID WOULD
ALL BE INCLUDED IN THAT, IS THAT CORRECT?
MR. BRONSON: ANY -- ANY INSPECTION WHETHER IT'S
A REGULARLY SCHEDULED INSPECTION OR I THINK AS REQUIRED UNDER LAW THAT
THERE IS AT LEAST ONE UNANNOUNCED INSPECTION OVER A CERTAIN PERIOD OF
TIME, I DON'T RECALL SPECIFICALLY IF IT'S 12 MONTHS OR 18 MONTHS.
MR. MANKTELOW: OKAY. I HAVE JUST TWO MORE
QUESTIONS AND I BELIEVE MY COLLEAGUE PROBABLY COVERED THESE, BUT I
JUST WANT TO BE SURE. WILL THE DOH WEBSITE SHOW POINT OF CORRECTION
ACTIVITIES BY THE NURSING HOME AT ANY TIME?
MR. BRONSON: IT WILL SHOW WHAT THE INSPECTION
RESULTS ARE AND WHAT THE CORRECTIVE, REMEDIAL STEPS NEED TO BE.
MR. MANKTELOW: AND MY LAST QUESTION, MR.
BRONSON, IS IF A FACILITY IS APPEALING THE FINDINGS OF THE INSPECTION, WILL
-- WILL DOH NOTE OR UPDATE IF THE APPEAL IS UPHELD OR ADJUDICATED?
MR. BRONSON: IT'S NOT SPECIFICALLY ADDRESSED IN
THE PIECE OF LEGISLATION, BUT MY ANTICIPATION WOULD BE IN THE
DETERMINATION OF WHEN IS A COMPLETED INSPECTION, AND IF THEY'RE STILL A,
YOU KNOW, THAT THE DOH AND THE NURSING HOME ARE GOING BACK AND
FORTH ON THAT, THAT I WOULDN'T CONSIDER THAT A COMPLETED INSPECTION UNTIL
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NYS ASSEMBLY MARCH 9, 2021
THE DOH FINALIZES ITS FINDING PLUS WHAT THE REMEDIAL STEPS ARE TAKEN.
MR. MANKTELOW: SO THEN IT'S MY UNDERSTANDING
THAT IF THE FACILITY IS APPEALING THE INSPECTION, THEN IT WOULD NOT BE
POSTED UNTIL THAT IS FINALIZED, IS THAT CORRECT?
MR. BRONSON: YEAH. AGAIN, IT'S NOT SPECIFICALLY
ADDRESSED, BUT I THINK THE INTENT IN THE -- IN THE LEGISLATION IS THAT ONCE
THE INSPECTION'S COMPLETED, MEANING ANY APPEAL PROCESSES OR THINGS OF
THAT NATURE, ONCE THAT'S COMPLETED THEN THERE'S A FINAL DETERMINATION BY
DOH. THAT'S WHAT WOULD BE POSTED.
MR. MANKTELOW: OKAY. THANK YOU, MR.
SPONSOR, AND THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: THANK YOU, SIR.
READ THE LAST SECTION.
THE CLERK: THIS ACT SHALL TAKE EFFECT IMMEDIATELY.
ACTING SPEAKER AUBRY: THE CLERK WILL RECORD
THE VOTE ON ASSEMBLY PRINT 1010-A. THIS IS A FAST ROLL CALL. ANY
MEMBER WHO WISHES TO BE RECORDED IN THE NEGATIVE IS REMINDED TO
CONTACT THE MAJORITY OR MINORITY LEADER AT THE NUMBERS PREVIOUSLY
PROVIDED.
(THE CLERK RECORDED THE VOTE.)
MS. GONZÁLEZ-ROJAS TO EXPLAIN HER VOTE.
MS. GONZÁLEZ-ROJAS: THANK YOU, MR. SPEAKER,
TO EXPLAIN MY VOTE.
ACTING SPEAKER AUBRY: PLEASE.
MS. GONZÁLEZ-ROJAS: I RISE IN FAVOR OF THIS
32
NYS ASSEMBLY MARCH 9, 2021
LEGISLATION AND I THANK THE BILL SPONSOR FOR THEIR WORK ON IT. AS I HAVE
SAID PREVIOUSLY, THE DEATH OF NEW YORKERS IN NURSING HOMES MUST BE
REMEMBERED AS A LOSS OF MANY LOVED ONES WHO DIED BECAUSE OF SERIOUS
GAPS IN OUR HEALTH CARE SYSTEM AND BECAUSE OF SPECIAL INTEREST. BUT WE
CAN RIGHT THESE WRONGS NOW THAT EXISTED PRIOR TO COVID-19 AS WELL.
THIS LEGISLATION WILL REQUIRE THE DEPARTMENT OF HEALTH
TO PUBLISH ONLINE ALL INSPECTIONS CONDUCTED IN NURSING HOMES AND
RESIDENTIAL HEALTH CARE FACILITIES DURING THE COVID-19 CRISIS. IT IS PART
OF THE MANY STEPS THAT WE NEED TO TAKE TO ENSURE THAT NEW YORKERS ARE
PROVIDED WITH THE INFORMATION NECESSARY FOR ACCOUNTABILITY AND SOUND
DECISION-MAKING. WITH THE ADDITIONAL VISITS ENCOURAGED BY THIS
LEGISLATION TO NURSING HOMES TO EXAMINE IF VIOLATIONS OR DEFICIENCIES
HAVE BEEN CORRECTED AND A STUDY ON BEST PRACTICES, I AM HOPING THAT WE
WILL NOT SEE THE DEVASTATING LOSS OF LIFE THAT WE HAVE SEEN IN THIS STATE.
THANK YOU SO MUCH AND I VOTE IN THE AFFIRMATIVE.
ACTING SPEAKER AUBRY: MS. GONZÁLEZ-ROJAS
IN THE AFFIRMATIVE.
MR. BRONSON TO EXPLAIN HIS VOTE.
MR. BRONSON: YES, MR. SPEAKER, TO EXPLAIN MY
VOTE. THIS BILL WOULD REQUIRE THE COMMISSIONER OF HEALTH TO PUBLISH
ON THE DEPARTMENT OF HEALTH WEBSITE IN A MANNER THAT IS PUBLICLY
ACCESSIBLE THE RESULTS OF ALL INSPECTIONS CONDUCTED IN A NURSING HOME.
IT WOULD HAVE TO BE DONE WITHIN 30 DAYS AND ANY PATIENT IDENTIFYING
INFORMATION WOULD BE REDACTED AND THE PUBLISHED INFORMATION WOULD
INDICATE WHY THAT PARTICULAR PIECE OF INFORMATION WAS REDACTED. IT
33
NYS ASSEMBLY MARCH 9, 2021
WOULD APPLY RETROACTIVELY TO ALL INSPECTIONS BEGINNING ON THE DAY OF
THE EMERGENCY DECLARATION FOR COVID.
MR. SPEAKER, IT SHOULDN'T TAKE A SCATHING REPORT BY THE
ATTORNEY GENERAL FOR CRITICAL INFORMATION ABOUT OUR STATE NURSING
HOMES TO BE ACCESSIBLE TO THE PUBLIC. IN THE WAKE OF THIS TRAGEDY, IT'S
MORE IMPORTANT THAN EVER THAT NEW YORKERS HAVE THE TRANSPARENCY
THEY NEED TO MAKE INFORMED DECISIONS AND TRUST THAT THEIR LOVED ONES
ARE BEING PROPERLY CARED FOR. THIS LEGISLATION WILL ENSURE THE PUBLIC
RECEIVES THE COMPLETE AND ACCURATE INFORMATION WE NEED TO BETTER
PROTECT OUR MOST VULNERABLE, AS WELL AS ENSURE NO OTHER FAMILIES EVER
HAVE TO UNDERGO THIS COMBINATION OF CONFUSION AND GRIEF AGAIN THAT
THEY EXPERIENCED DURING COVID.
WITH THAT, MR. SPEAKER, I WITHDRAW MY REQUEST AND
VOTE IN THE AFFIRMATIVE.
ACTING SPEAKER AUBRY: MR. BRONSON IN THE
AFFIRMATIVE.
ARE THERE ANY OTHER VOTES? ANNOUNCE THE RESULTS.
(THE CLERK ANNOUNCED THE RESULTS.)
THE BILL IS PASSED.
THE CLERK: ASSEMBLY NO. A03131-A, RULES
REPORT NO. 36, KIM, STECK, HEVESI, EPSTEIN, L. ROSENTHAL, NIOU,
BICHOTTE HERMELYN, GLICK, THIELE, GRIFFIN, MONTESANO, JACOBSON,
DICKENS, MCMAHON, SEAWRIGHT, STERN, BARRON, ROZIC, BYRNES,
GOTTFRIED, BARNWELL, SOLAGES, NORRIS, MCDONOUGH, ZINERMAN,
ABINANTI, SANTABARBARA, MITAYNES, LUPARDO, JACKSON, DESTEFANO,
34
NYS ASSEMBLY MARCH 9, 2021
LAWLER, HAWLEY, SALKA, BYRNE, ANDERSON, TAGUE, SIMPSON, KELLES,
WALLACE, DINOWITZ, FORREST, BLANKENBUSH. AN ACT TO AMEND THE PUBLIC
HEALTH LAW, IN RELATION TO ESTABLISHING REQUIREMENTS FOR RESIDENTIAL
HEALTH CARE FACILITIES DURING A STATE DISASTER EMERGENCY INVOLVING A
DISEASE OUTBREAK.
MR. GOODELL: AN EXPLANATION, PLEASE.
ACTING SPEAKER AUBRY: MR. KIM, AN
EXPLANATION IS REQUESTED.
MR. KIM: THANK YOU, MR. SPEAKER. AT THE PEAK OF
THE COVID PANDEMIC, MANY OF US WHO DEALT WITH NURSING HOMES AND
THE FAMILIES WITH LOVED ONES IN THESE FACILITIES EXPERIENCED FIRST HAND
THE LACK OF CLEAR AND RESPONSIBLE DIRECTIONS AND ACCOUNTABILITY FROM
THE STATE DEPARTMENT OF HEALTH. THIS BILL WOULD PROVIDE A FRAMEWORK
FOR GREATER ACCOUNTABILITY AND OVERSIGHT FOR NURSING HOMES, ESPECIALLY
-- SPECIFICALLY DURING TIMES OF CRISIS SUCH AS THE CURRENT STATE DISASTER
EMERGENCY DECLARED AS A RESULT OF COVID-19.
ACTING SPEAKER AUBRY: MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. WOULD THE SPONSOR
YIELD?
ACTING SPEAKER AUBRY: MR. KIM, WILL YOU
YIELD?
MR. KIM: YES, SIR. YES.
MR. GOODELL: THANK YOU, MR. KIM. UNDER THIS
BILL, IF THE INFECTION RATE WITHIN A PARTICULAR FACILITY GOES ABOVE A
THRESHOLD, I THINK IT'S FIVE PERCENT, THEN IT TRIGGERS AN OBLIGATION BY THE
35
NYS ASSEMBLY MARCH 9, 2021
COMMISSIONER OF HEALTH TO APPOINT A TEMPORARY OPERATOR, IS THAT
CORRECT?
MR. KIM: YES. IF THE NURSING HOME FATALITY RATE OF
AT LEAST FIVE PERCENT OF THE RESIDENTS RESULTING FROM THE DISEASE
OUTBREAK, THE COMMISSIONER OF HEALTH WOULD BE REQUIRED TO ESTABLISH
DAILY COMMUNICATIONS WITH THE FACILITY TO ENSURE THE FACILITY IS
ADEQUATELY PREPARED TO ENSURE THE HEALTH AND SAFETY OF RESIDENTS. JUST
TO CLARIFY, MR. GOODELL, THIS IS ONLY WHEN THE RATE INCREASES OR REMAINS
THE SAME OVER A 15-DAY PERIOD, THE COMMISSIONER OF HEALTH WILL
APPOINT -- SHALL APPOINT A TEMPORARY OPERATOR TO ASSUME RESPONSIBILITY
FOR OPERATING THE FACILITY.
MR. GOODELL: THANK YOU. AS YOU APPRECIATE, AS
WE COME OUT OF THE COVID CRISIS, INITIALLY THEY WERE TALKING ABOUT A
14-DAY QUARANTINE, SO MY QUESTION THEN IS SHOULDN'T THE TIME PERIOD BE
LONGER THAN 15 DAYS SINCE ANY INFECTION RATE OR DEATH RATE WITHIN A
FACILITY MIGHT REFLECT WHAT HAPPENED A WEEK OR TWO EARLIER?
MR. KIM: THAT'S CERTAINLY A GOOD POINT, MR.
GOODELL. WE'VE LOOKED AT DIFFERENT RATES AND DAYS, THIS IS WHAT WE
CAME UP WITH AFTER SPEAKING WITH THE FAMILIES AND THE WORKERS AND A
NUMBER OF OTHER EXPERTS, BUT WE CAN CERTAINLY REVISIT IT AT A LATER TIME.
BUT THIS IS THE COMPROMISED DATE AND PERCENTAGE THAT WE CAME UP WITH
FOR -- FOR THIS BILL.
MR. GOODELL: AND THIS BILL CALLS, THEN, FOR THE
APPOINTMENT OF A TEMPORARY OPERATOR APPOINTED BY THE HEALTH
COMMISSIONER TO ASSUME SOLE CONTROL AND SOLE RESPONSIBILITY FOR THE
36
NYS ASSEMBLY MARCH 9, 2021
OPERATION OF THE FACILITY UNTIL SUCH TIME AS, A, ALL THE RESIDENTS HAVE
BEEN SAFELY TRANSFERRED TO ANOTHER RESIDENTIAL CARE FACILITY OR, B,
TRANSFERRED TO A COMMUNITY-BASED SETTING. AM I CORRECT THAT THOSE --
THOSE ARE THE TWO ONLY TWO TRIGGERS, OR THE ONLY TWO RESPONSIBILITIES OF
THE TEMPORARY OPERATOR?
MR. KIM: RIGHT. BUT ALSO, YOU KNOW, WE WILL BE
TRACKING THE INFECTION RATE PERCENTAGE SO IF THEY'RE ABLE TO CONTROL -- I'M
SORRY, HOLD ON ONE SECOND. HOLD ON ONE SECOND. MR. GOODELL, I'LL BE
RIGHT BACK.
MR. GOODELL: AS WITH MR. KIM, I ALWAYS TAKE
PHONE CALLS FROM MY WIFE NO MATTER WHAT I'M DOING --
(LAUGHTER)
-- AND I MEANT THAT AS A COMPLIMENT TO BOTH MY WIFE
AND MR. KIM.
MR. KIM: ALL RIGHT. I'M TRYING TO RESTART MY VIDEO,
MR. GOODELL, IF THEY'LL LET ME.
MR. GOODELL: CERTAINLY.
MR. KIM: OKAY. THANK YOU.
YES, MR. GOODELL --
MR. GOODELL: (INAUDIBLE) -- LOOKING GOOD, MR.
KIM.
MR. KIM: THANK YOU, MR. GOODELL.
SO IF WE ARE ABLE TO CONTROL THE INFECTION RATE, WE
BELIEVE UNDER THIS BILL WE CAN GO BACK TO RESTORING THE NORMAL
PROCEDURES AND GIVE THE AUTHORITY BACK TO THE NURSING HOME FACILITIES.
37
NYS ASSEMBLY MARCH 9, 2021
MR. GOODELL: AND I APPRECIATE THAT COMMENT
VERY MUCH, MR. KIM, BECAUSE THE LANGUAGE OF THE BILL SAYS THAT THE
TEMPORARY OPERATOR WILL STAY IN CONTROL UNTIL ALL THE RESIDENTS ARE
TRANSFERRED OUT. BUT AM I CORRECT FROM WHAT YOU JUST SAID THAT IN
REALITY, LET'S SAY A WEEK LATER, THE INFECTION RATE DROPS PRECIPITOUSLY,
THEN THE TEMPORARY OPERATOR WOULD NO LONGER BE IN CONTROL, IS THAT
CORRECT?
MR. KIM: THE INTENT IS TO GIVE THE FACILITIES, IF
THEY'RE ACTING IN GOOD FAITH, AS MUCH OPPORTUNITY TO GO BACK INTO DOING
THEIR JOBS, WHICH IS WHY THE OTHER PARTS OF THE LANGUAGE IS MORE OF A
SUPPORTIVE -- PROVIDING SUPPORTIVE MEASURES SO THEY COULD ACTUALLY DO
THEIR JOBS, WHETHER IT'S EMERGENCY MONEY, EMERGENCY HEALTH
APPROPRIATIONS OR OTHER WAYS TO SUPPORT THE FACILITIES, ESPECIALLY THE
ONES THAT ARE TRYING TO ACT IN GOOD FAITH, A CHANCE TO DO THEIR JOBS.
MR. GOODELL: AS YOU CAN APPRECIATE, FOR MANY
RESIDENTS OF A SKILLED NURSING FACILITY, IN PARTICULAR, A TRANSFER ITSELF CAN
BE EXTRAORDINARILY DISRUPTIVE, UPSETTING, AND EVEN DANGEROUS FOR SOME
OF THEM. SHOULDN'T THE FIRST PRIORITY OF A TEMPORARY OPERATOR BE TO KEEP
THE -- TO CORRECT THE INFECTION, ADDRESS THE HEALTH ISSUES AND KEEP THE
RESIDENTS IN THE SAME FACILITY? SHOULDN'T THAT BE THEIR FIRST OBJECTIVE
AND THEN ONLY IF THEY ARE UNABLE TO, LOOK AT TRANSFERRING RESIDENTS TO
SOME OTHER FACILITY?
MR. KIM: MR. GOODELL, YES. OUR FIRST GOAL IS TO
HAVE DAILY COMMUNICATIONS TO MEASURE THE PPE STATUS, THE STAFFING
STATUS, AS WELL AS THE INFECTION RATE. SO THERE IS AMPLE OPPORTUNITIES IN
38
NYS ASSEMBLY MARCH 9, 2021
THE FRONT END TO GIVE THE NURSING HOME FACILITIES A CHANCE TO CONTROL THE
SPREAD OF INFECTION RATES. ONLY IF THEY CANNOT DO SO AFTER A CERTAIN
PERIOD, THE TEMPORARY OPERATOR WILL BE ACTIVATED. AND I JUST WANT TO
CLARIFY, THIS IS A DIRECT, YOU KNOW, LEGISLATION THAT COMES FROM MY
PERSONAL EXPERIENCE BEING ON THE GROUND, AND AS WELL AS THE FAMILIES,
WHERE FOR MONTHS, ALL THE DEPARTMENT OF HEALTH HAS DONE WAS CALL
THESE FACILITIES ONCE A DAY TO GET FATALITY NUMBERS. THAT'S ALL THEY'VE
DONE, THAT'S ALL WE'VE WITNESSED AT THE PEAK OF THE PANDEMIC. THEY
HAVE NOT DONE ENOUGH AND THIS IS A WAY TO MAKE SURE THAT THEY'RE
GIVING CLEAR SUPPORT, AS WELL AS A MECHANISM TO PRIORITIZE THE NEEDS OF
THE FAMILIES AND THE RESIDENTS THAT ARE IN THESE PLACES AT THE PEAK OF
THESE TYPE OF PANDEMICS.
MR. GOODELL: I SHARE YOUR TOTAL FRUSTRATION WITH
THE ROLE OF THE STATE HEALTH DEPARTMENT DURING THIS CRISIS, WHETHER IT
GOES BACK TO ORDERING COVID-POSITIVE PATIENTS IN THE NURSING HOMES
OR THE GOVERNOR'S INSISTENCE ON COMPLETE LIABILITY EXEMPTION. I'M JUST
CONCERNED, THOUGH, THAT IF I READ THIS BILL CORRECTLY, THERE'S NO DUE
PROCESS PROVISIONS IN THE BILL FOR A FACILITY THAT MIGHT BE FACING CLOSURE
TO EVEN QUESTION WHAT WAS HAPPENING, IS THAT CORRECT?
MR. KIM: WE BELIEVE IT'S AN EMERGENCY SO WE WANT
TO ACT SWIFTLY AND GIVE THE FACILITIES PLENTY OF OPPORTUNITIES TO GET IT
UNDER CONTROL. IF THEY ARE NOT PROTECTING THE LIVES AND THE SAFETY OF
RESIDENTS, WE BELIEVE THE DEPARTMENT OF HEALTH SHOULD HAVE THE
AUTHORITY TO ACT AND PROTECT THESE RESIDENTS.
MR. GOODELL: AND IF THE DEPARTMENT OF HEALTH IS
39
NYS ASSEMBLY MARCH 9, 2021
WRONG EITHER IN THEIR DATA OR THEIR APPROACH, OR THE TEMPORARY OPERATOR
UNFORTUNATELY SHUTS DOWN THE FACILITY EVEN IF THE INFECTION RATE DROPS
WITHIN A MATTER OF DAYS AFTER HE TAKES OVER, DOES THIS BILL AUTHORIZE THE
OWNERS OF THE NURSING HOME TO BRING AN ACTION, A CIVIL ACTION AGAINST
THE DEPARTMENT OF HEALTH, OR THE STATE, OR THE TEMPORARY OPERATOR IF
THEY ARE NOT OPERATING PROPERLY?
MR. KIM: IT DOES NOT.
MR. GOODELL: THANK YOU, MR. KIM.
ON THE BILL, SIR.
ACTING SPEAKER AUBRY: ON THE BILL, MR.
GOODELL.
MR. GOODELL: MY COLLEAGUE HAS BEEN UPFRONT FOR
SOME TIME URGING A DIFFERENT APPROACH TO OUR NURSING HOMES, AND I
COMMEND HIM FOR THAT. I SHARE IN HIS DEEP, DEEP FRUSTRATION WITH A LOT
OF THE ACTIONS BY THE STATE HEALTH DEPARTMENT, STARTING WITH A DEADLY
ORDER, CONTINUING WITH A DOCTORED REPORT - I CAN'T BELIEVE OUR TOP
DOCTOR IS DOCTORING REPORTS - THE CONTINUED COVERUP, AND THE ENTIRE
SITUATION ON EVERY ONE OF US ON BOTH SIDES OF THE AISLE ARE DEEPLY
CONCERNED AND DEEPLY FRUSTRATED. AT THE SAME TIME, I THINK WE NEED TO
RECOGNIZE THAT WHEN WE'RE DEALING WITH PRIVATE ENTITIES, WHETHER
THEY'RE A PRIVATE NOT-FOR-PROFIT OR A PRIVATE FOR-PROFIT FACILITY, WE NEED
TO HAVE A BALANCED APPROACH. AND THAT MEANS THAT THE LEGISLATION ITSELF
NEEDS TO PROVIDE DUE PROCESS, BASIC DUE PROCESS PROTECTIONS.
OVER THE LAST YEAR, WE'VE SEEN OVER AND OVER WHERE
OUR HEALTH DEPARTMENT HAS FALLEN DOWN ON THE JOB. THAT THIS BILL
40
NYS ASSEMBLY MARCH 9, 2021
ASSUMES THAT THE HEALTH DEPARTMENT NEVER MAKES A MISTAKE, THAT
THEY'RE ENTIRELY ACCURATE AND CORRECT, A HEALTH DEPARTMENT THAT
WOULDN'T PROVIDE US WITH DATA FOR TEN MONTHS IS ASKED TO ACT WITHIN 15
DAYS BASED ON DATA. THAT WOULD SCARE THE LIVING DAYLIGHTS OUT OF ME IF
I WERE AN OWNER OR OPERATOR OF A FOR-PROFIT OR A NOT-FOR-PROFIT NURSING
FACILITY. AND THERE'S NO ABILITY UNDER THIS LEGISLATION FOR THAT OPERATOR
TO CHALLENGE THAT DETERMINATION, OR SEEK JUDICIAL REVIEW, AND THAT'S
CRITICAL.
AND THEN THE LANGUAGE GOES ON TO SAY THAT THE
TEMPORARY OPERATOR WILL CONTINUE UNTIL ALL THE PATIENTS ARE TRANSFERRED
OUT. IN OTHER WORDS, WILL CONTINUE IN CONTROL UNTIL THE FACILITY IS SHUT
DOWN. IT DOESN'T RECOGNIZE -- THE LANGUAGE OF THE BILL DOES NOT
RECOGNIZE THAT THE TEMPORARY OPERATOR SHOULD ONLY OPERATE UNTIL THE
INFECTION RATE HAS BEEN ADDRESSED, AND THAT THEIR MISSION, THEIR FIRST
MISSION SHOULD BE TO BRING THE FACILITY INTO COMPLIANCE AND TO PROTECT
THE LIFE AND SAFETY OF THE RESIDENTS. THEIR MISSION SHOULD NOT BE, FIRST
AND FOREMOST, TO TRANSFER ALL THE RESIDENTS SOMEWHERE ELSE. AND FOR
THOSE WHO AREN'T FAMILIAR WITH THE NURSING HOME INDUSTRY, I'LL SHARE
WITH YOU: THE NURSING HOMES MUST RUN WITH A 95 PERCENT OR HIGHER
OCCUPANCY WITH A CERTAIN NUMBER OF PRIVATE-PAY PATIENTS OR THEY
CANNOT SURVIVE, THEY SIMPLY CANNOT SURVIVE. AND SO FOR MANY PARTS OF
OUR STATE, SHUTTING DOWN A NURSING HOME IS NOT EASY BECAUSE THERE'S NO
CAPACITY ELSEWHERE, AND SOMETIMES THE CLOSEST NURSING HOME IS A LONG
WAYS AWAY; IN MY COUNTY, IT COULD BE 20, 30, 40, 50 MILES AWAY.
SO WE NEED TO BE VERY CAREFUL WITH THE ACTUAL
41
NYS ASSEMBLY MARCH 9, 2021
LANGUAGE. AND PART OF THE CHALLENGE WE ALL WRESTLE WITH IS WHEN WE
ARE SO FRUSTRATED WITH WHAT'S HAPPENED OVER THE LAST SEVERAL MONTHS
THAT WE DON'T -- WE OVERREACT. WE AREN'T CAREFUL ABOUT MAKING SURE
THERE'S DUE PROCESS. WE AREN'T CAREFUL ABOUT TREATING A TEMPORARY
OPERATOR AS JUST A TEMPORARY OPERATOR. WE'RE NOT CAREFUL ABOUT
INCLUDING IN THE LANGUAGE THE PROTECTIONS THAT WE NEED TO HAVE A
BALANCED APPROACH. SO WHILE I'M DEEPLY, DEEPLY THANKFUL FOR MY
COLLEAGUE'S EFFORTS AND LEADERSHIP IN THIS AREA, I WILL NOT BE SUPPORTING
THIS BILL UNTIL THE LANGUAGE OF THE BILL REFLECTS THE FUNDAMENTAL FAIRNESS
WITH OPERATORS AS WELL AS THE RESIDENTS, GIVES THE OPERATORS DUE PROCESS
THAT EXPRESSLY STATES THAT OUR FOCUS HAS TO BE ON PATIENT SAFETY AND NOT
JUST TRANSFERRING OR SHUTTING DOWN A FACILITY. THANK YOU, SIR, AND THANK
YOU TO MY COLLEAGUE.
(PAUSE)
ACTING SPEAKER AUBRY: READ THE LAST SECTION.
THE CLERK: THIS ACT SHALL TAKE EFFECT IMMEDIATELY.
ACTING SPEAKER AUBRY: THE CLERK WILL RECORD
THE VOTE ON ASSEMBLY PRINT 3131-A. THIS IS A FAST ROLL CALL. ANY
MEMBER WHO WISHES TO BE RECORDED IN THE NEGATIVE IS REMINDED TO
CONTACT THE MAJORITY OR MINORITY LEADER AT THE NUMBERS PREVIOUSLY
PROVIDED.
(THE CLERK RECORDED THE VOTE.)
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. WHILE THIS IS A FAST
ROLL CALL VOTE WHICH MEANS THAT MEMBERS WILL TYPICALLY BE VOTING YES
42
NYS ASSEMBLY MARCH 9, 2021
UNLESS THEY CALL THE MINORITY LEADER'S OFFICE, AND THIS IS ON RULES
REPORT NO. 36, CALENDAR NO. A-3131, I WILL BE VOTING NO AND THOSE
WHO ALSO HAVE CONCERNS OVER THIS BILL, PARTICULARLY THE DUE PROCESS
ISSUES AND THE FOCUS ON CLOSING THE FACILITY RATHER THAN FIXING THE
FACILITY, ARE ENCOURAGED TO CALL THE MINORITY LEADER'S OFFICE. WE DO
HAVE SEVERAL FINE MEMBERS OF MY CAUCUS THAT WILL CERTAINLY BE VOTING
YES, AND I ENCOURAGE ANYONE WHO WANTS TO VOTE YES TO DO SO, BUT IF
THEY ARE CONCERNED AS I AM, THEN I WOULD RECOMMEND THEY CALL AND LET
US KNOW. THANK YOU, SIR.
ACTING SPEAKER AUBRY: IT IS 3131-A, MR.
GOODELL.
MR. GOODELL: THANK YOU, SIR.
ACTING SPEAKER AUBRY: YOU'RE WELCOME.
MR. KIM TO EXPLAIN HIS VOTE.
MR. KIM: THANK YOU, MR. SPEAKER. I JUST WANT TO
TAKE THIS MOMENT TO THANK THE SPEAKER, MY COLLEAGUES, AND EVERYONE
INVOLVED ON PUTTING THE SLEW OF NURSING HOME BILLS, INCLUDING THE ONE
THAT WE'RE VOTING ON TODAY, AND THANK EVERYONE FOR JUST FOCUSING ON
SOLUTIONS THAT WILL PUT THIS INDUSTRY -- HOLD THIS INDUSTRY ACCOUNTABLE
WHILE FINDING REAL SOLUTIONS TO MAKE SURE THAT WE PRIORITIZE THE NEEDS
OF THE RESIDENTS AND THE WORKERS IN THESE FACILITIES.
THIS PARTICULAR BILL THAT WE'RE PASSING, I BELIEVE, IS A
STEP TOWARDS STRENGTHENING THE NURSING HOMES' RESIDENTS BILL OF RIGHTS,
WHICH MANY OF YOU ALREADY KNOW THAT THE FEDERAL GOVERNMENT ALREADY
PASSED IN 1986 AND THE STATE OF NEW YORK ALSO CODIFIED INTO LAW, BUT
43
NYS ASSEMBLY MARCH 9, 2021
DURING EMERGENCIES, WE FOUND THAT THE STATE, UNDER THE DEPARTMENT OF
HEALTH AND UNDER THIS EXECUTIVE, OFTEN PRIORITIZES THE NEEDS OF THE
BUSINESSES INSTEAD OF THE LIVES THAT ARE -- THAT ARE DESPERATE FOR SUPPORT
AND HELP IN THESE FACILITIES. I BELIEVE THIS BILL CORRECTS THAT BY MAKING
SURE THAT WE ARE HOLDING THE DEPARTMENT OF HEALTH MORE ACCOUNTABLE
TO DO THEIR JOB, TO -- TO TAKE A BALANCED APPROACH IN PROVIDING THE
SUPPORT UP FRONT, BUT IF NOT, WE, YOU KNOW, GIVE THEM THE AUTHORITY TO
GO IN AND TAKE OVER THESE FACILITIES THAT MAY NOT BE EQUIPPED TO SAVE
PEOPLE'S LIVES.
THE ISSUE OF DUE PROCESS, THE ESTABLISHED OPERATOR HAS
AN OPPORTUNITY TO HAVE A HEARING PRIOR TO THE APPOINTMENT UNDER THE
CURRENT TEMPORARY OPERATOR STATUTE, SO THERE IS DUE PROCESS BUILT IN TO
THIS PROCEDURE AND I HOPE -- AND I WILL SUPPORT IN THE AFFIRMATIVE AND I
HOPE MY COLLEAGUES WILL DO SO AS WELL. THANK YOU SO MUCH, MR.
SPEAKER.
ACTING SPEAKER AUBRY: MR. KIM IN THE
AFFIRMATIVE.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. PLEASE RECORD THE
FOLLOWING REPUBLICANS IN THE NEGATIVE: MR. ANGELINO, MR. BROWN, MR.
DIPIETRO, MR. FITZPATRICK, MR. GALLAHAN, MR. HAWLEY, MR. MANKTELOW,
MR. MONTESANO AND MR. TAGUE.
ACTING SPEAKER AUBRY: SO NOTED.
MR. GOODELL: THANK YOU, SIR.
ACTING SPEAKER AUBRY: ARE THERE ANY OTHER
44
NYS ASSEMBLY MARCH 9, 2021
VOTES? ANNOUNCE THE RESULTS.
(THE CLERK ANNOUNCED THE RESULTS.)
THE BILL IS PASSED.
THE CLERK: ASSEMBLY NO. A05684-A, RULES
REPORT NO. 37, GOTTFRIED, GALEF, CLARK, TAYLOR, PAULIN, ABINANTI,
BICHOTTE HERMELYN, MCDONALD, HEVESI, BRONSON, WALLACE, STECK,
DINOWITZ, THIELE, PERRY, GONZÁLEZ-ROJAS, ENGLEBRIGHT, JACKSON,
CUSICK, ANDERSON, SIMON, BARRETT, SILLITTI, JACOBSON, COOK, MCMAHON,
RICHARDSON, FORREST, BUTTENSCHON, SANTABARBARA. AN ACT TO AMEND THE
PUBLIC HEALTH LAW, IN RELATION TO REQUIREMENTS FOR RESIDENTIAL HEALTH
CARE FACILITIES AND NURSING HOMES.
ACTING SPEAKER AUBRY: AN EXPLANATION IS
REQUESTED, MR. GOTTFRIED.
MR. GOTTFRIED: OKAY. THANK YOU, MR. SPEAKER.
THIS BILL DEALS WITH THE -- WHAT IS COMMONLY CALLED THE CERTIFICATE OF
NEED PROCESS, THE PROCESS BY WHICH A NEW NURSING HOME IS -- IS
APPROVED BY THE HEALTH DEPARTMENT OR A SALE OF A -- OF A NURSING
HOME, OR A MAJOR MODIFICATION TO IT. AND THE BILL SAYS THAT THERE WOULD
BE NOTICE TO A LIST OF -- OF PARTIES INCLUDING THE GENERAL PUBLIC, THE
LONG-TERM CARE OMBUDSMAN, THE REGIONAL HEALTH DEPARTMENT OFFICE.
IF THERE ARE -- IF IT'S A MODIFICATION OR A SALE OF AN EXISTING NURSING
HOME THE NOTICE WOULD GO TO -- TO RESIDENTS AND TO EMPLOYEES, LABOR
ORGANIZATIONS REPRESENTING EMPLOYEES AND THE LIKE.
THE APPLICATION WOULD INCLUDE LOOKING AT WHETHER
THERE IS A PRIOR HISTORY OF ANY PROPOSED CONTROLLING PERSON, PRINCIPAL
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SHAREHOLDER, PRINCIPAL MEMBER, ET CETERA, OF THE APPLICANT IN OWNING
ANOTHER NURSING HOME AND WHETHER THEY PROVIDE A -- A HIGH LEVEL OF --
OF CARE THERE, AND -- AND BEING ABLE TO TAKE THAT INTO CONSIDERATION IN
WHETHER TO IMPROVE THEM FOR TAKING OVER THIS NEW FACILITY. IT WOULD
PROVIDE THAT INFORMATION ON THOSE OWNERSHIP -- OTHER INTERESTS BE MADE
PUBLIC. IT WOULD PROVIDE THAT A -- THE OPERATOR HAS TO NOTIFY THE HEALTH
DEPARTMENT OF ANY FAMILY TIES OF THE -- OF THE OWNERSHIP WITH SERVICE
PROVIDERS AND FACILITY CONTRACTORS. IT PROVIDES THAT IF THERE IS A, YOU
KNOW, A CHANGE IN OWNERSHIP THAT FOR A PERIOD OF TIME THE -- THE
STAFFING AND THE TERMS OF EMPLOYMENT OF THOSE STAFF MEMBERS HAS TO BE
CONTINUED SO THEY AREN'T JUST THROWN OUT WHOLESALE ON DAY ONE.
IT ALSO SAYS THAT IF A NURSING HOME OWNER OR OPERATOR
DELEGATES THE OPERATION OR CONTROL OF THE FACILITY TO SOME OTHER PARTY,
THAT THAT DOES NOT DIMINISH THE OPERATOR OR OWNERS' RESPONSIBILITY AND
LIABILITY FOR THE OPERATION OF THE FACILITY.
ACTING SPEAKER AUBRY: MR. BYRNE.
MR. BYRNE: THANK YOU, MR. SPEAKER. AND THANK
YOU, MR. CHAIR, FOR THAT VERY THOROUGH EXPLANATION OF THIS BILL. COUPLE
THINGS THAT I WANTED TO JUST DRILL DOWN ON. MUST PROVIDE NOTICE OF AN
APPLICATION TO THE PUBLIC, I THINK THAT'S GOOD. PROVIDE THE APPLICATION
TO THE STATE OFFICE OF LONG-TERM CARE OMBUDSMAN AND THE REGIONAL
OFFICE HAVING GEOGRAPHICAL LOCATION WHERE THE NURSING HOME IS, I THINK
THAT'S GOOD, I THINK THERE'S SOME GOOD THINGS IN THIS BILL. MY FIRST
QUESTION IS WHEN WE'RE TALKING ABOUT --
ACTING SPEAKER AUBRY: MR. BYRNE, YOU'RE
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ASKING THE SPONSOR TO YIELD, ARE YOU NOT?
MR. BYRNE: YES, OH, I'M SORRY. I'M GOING RIGHT
INTO IT, SIR. YES. WILL THE SPONSOR YIELD?
ACTING SPEAKER AUBRY: THAT'S OKAY. THERE
WE GO.
MR. GOTTFRIED, WILL YOU YIELD?
MR. GOTTFRIED: YES.
MR. BYRNE: MR. CHAIRMAN, IT IS NOT THE SAME
BEING THERE ON THE FLOOR, I MISS THE SERGEANT-AT-ARMS, HIS CANDY OVER
TO THE RIGHT OF ME AND I'M IN MY DISTRICT OFFICE WHERE WE JUST PAINTED
SO IT'S A -- A LITTLE CRAZY OVER HERE, BUT I THANK YOU FOR YIELDING AND
INDULGING ME WITH THAT THOROUGH EXPLANATION. AS I SAID, THERE ARE
SOME GOOD THINGS IN THIS BILL THAT I THINK ALMOST EVERYBODY IN THE
CHAMBER CAN ACCEPT AND SUPPORT. I DO STILL HAVE SOME -- SOME
QUESTIONS TO DRILL DOWN ON. WHERE IT TALKS ABOUT REQUIRING AN
APPLICATION FOR A NURSING HOME'S ESTABLISHMENT OR INCORPORATION TO
INCLUDE INFORMATION REGARDING CHARACTER COMPETENCE AND STANDING IN
THE COMMUNITY, THAT IS REFERENCED AGAIN WHERE THE BILL PROHIBITS AN
APPLICATION FROM BEING APPROVED UNLESS THESE PERSONS OR ENTITIES HAVE
DEMONSTRATED CHARACTER COMPETENCE AND STANDING IN THE COMMUNITY.
IS THERE A DEFINITION FOR THOSE TERMS? I KNOW THERE'S SOME OTHER
EXAMPLES WHERE PEOPLE CANNOT BE CONSIDERED IN THIS BILL, BUT SPECIFIC
TO THOSE TERMS, CHARACTER COMPETENCE AND STANDING IN THE COMMUNITY
AND PROVIDING A HIGH -- CONSISTENTLY HIGH LEVEL OF CARE AT ANY NURSING
HOME. IS THERE A DEFINITION OR INTENT THAT YOU CAN SPEAK TO ON THE BILL?
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MR. GOTTFRIED: WELL, CERTAINLY CHARACTER
COMPETENCE AND STANDING IN THE COMMUNITY ARE TERMS THAT HAVE BEEN
IN THIS VERY STATUTE FOR DECADES THAT I KNOW OF AND I IMAGINE EVEN
LONGER THAN THAT. AND CERTAINLY OVER THAT PERIOD OF TIME, AND I -- I
IMAGINE THERE IS LANGUAGE IN HEALTH DEPARTMENT REGULATIONS THAT
CLARIFIES IT, CERTAINLY THERE ARE -- THERE IS EXPERIENCE WITH PROBABLY TENS
OF THOUSANDS OF CON APPLICATIONS OVER THE YEARS THAT HAVE GIVEN THOSE
WORDS, INCLUDING THROUGH LITIGATION, A -- A SETTLED MEANING. SO I KNOW
I COULDN'T RECITE THAT OFF THE TOP OF MY HEAD, BUT I COULD, YOU KNOW,
FIND YOU ANY NUMBER OF -- OF LAWYERS WHO COULD RECITE CASE LAW ON
THAT IN THEIR SLEEP.
THE HIGH LEVEL OF -- OF CARE, THERE IS LANGUAGE LATER IN
THE BILL THAT -- THAT SETS SOME EXAMPLES OF THAT, BUT IT'S ALSO -- IT WOULD
ALSO BE A -- A JUDGMENT QUESTION FOR THE -- FOR THE PUBLIC HEALTH AND
HEALTH PLANNING COUNCIL TO CONSIDER, JUST LIKE CHARACTER COMPETENCE
AND STANDING IN THE COMMUNITY.
MR. BYRNE: THANK YOU, MR. CHAIRMAN, AND I -- I
UNDERSTAND THAT. I JUST THINK WHEN WE'RE PASSING THIS, IT'S NICE TO GET
THINGS ON THE RECORD AS FAR AS HOW YOU DEFINE IT AND YOUR INTENT. ALSO,
YOU DID MENTION AT LEAST -- THERE ARE SPECIFICS THAT ARE ALSO MENTIONED
IN THE BILL - I ALLUDED TO IT EARLIER - A FACILITY CANNOT BE CONSIDERED TO
HAVE PROVIDED A HIGH LEVEL OF CARE -- A HIGH LEVEL OF CARE IF IT HAS, FOR
EXAMPLE, EARNED A 2-STAR RATING OR LESS BY THE FEDERAL CENTER OF
MEDICARE AND MEDICAID SERVICES, COMMONLY KNOWN AS THE CMS
RATING. WE'VE TALKED ABOUT THIS A FEW TIMES IN COMMITTEE WITH OUR
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COLLEAGUES, AND I KNOW THERE'S SOMETIMES CONCERN ABOUT USING THIS AS
A BAROMETER FOR LOOKING AT OUR FACILITIES AND AN EXAMPLE THAT WAS
RAISED IN ONE MEMO THAT I RECEIVED WAS THAT, FOR EXAMPLE, A 2-STAR
OVERALL RATING, EVEN THOUGH IT MAY -- A FACILITY MAY HAVE A 2-STAR
OVERALL RATING EVEN THOUGH IT HAS A 5-STAR RATING OF QUALITY AND
MEASURES SIMPLY BECAUSE IT HAD A BAD SURVEY THREE YEARS EARLIER. YOU
-- WOULD YOU AGREE WITH THAT AS A POSSIBILITY, AND IS THAT SOMETHING YOU
THINK THIS BILL ALSO ADDRESSES OR NO?
MR. GOTTFRIED: WELL, I THINK IT IS APPROPRIATE TO
CONSIDER THAT RECORD. YOU KNOW, IT'S NOT EASY TO GET IN A -- IN A FINAL
RECORD THAT THERE ARE SERIOUS PROBLEMS IN A FACILITY. AND IF THAT -- IF IT
WAS THERE TWO YEARS AGO, IT'S NOT LIKELY THAT THEY HAVE MIRACULOUSLY
TURNED INTO, YOU KNOW, MODEL CITIZENS OVERNIGHT. SO I -- I THINK
LOOKING AT RECENT HISTORY -- YOU KNOW, WE'RE NOT TALKING ANCIENT
HISTORY, BUT LOOKING AT RECENT HISTORY IS -- IS REALLY APPROPRIATE.
MR. BYRNE: OTHER -- OTHER QUESTION, AND I THINK I
KNOW THE ANSWER TO THIS, BUT SOMETIMES I SURPRISE MYSELF AND WILL ADD
SOMETHING, I GET A COMPLETELY DIFFERENT RESPONSE AND THEN IT CHANGES
OUR DEBATE, BUT ONE OF THE LATTER SECTIONS IN THE BILL THAT A NURSING HOME
OPERATOR CANNOT DIMINISH THEIR RESPONSIBILITY OR LIABILITY TO OPERATE A
NURSING HOME OR PROVIDE CONTRACTED OR AGREED TO NURSING HOME
SERVICES, DELEGATING RESPONSIBILITIES TO A THIRD-PARTY. NOW I'M LOOKING
AT THAT AND I'M UNDERSTANDING THAT AS A FACILITY COULD BE CONTRACTING OUT
FOR PER DIEM WORKERS, STAFF, BUT ALSO IT COULD BE SOME SORT OF A CATERING
SERVICE. WOULD THOSE EXAMPLES APPLY TO YOU, WOULD THAT MAKE SENSE,
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AND ARE THERE OTHER EXAMPLES THAT YOU CAN THINK OF.
MR. GOTTFRIED: WELL, I THINK WE'RE -- WE'RE
MAKING SURE HERE THAT, YOU KNOW, ORDINARY RULES OF LIABILITY ARE NOT
EVADED HERE. YOU KNOW, IF YOU HIRE SOMEBODY TO COME INTO YOUR
FACILITY AND PROVIDE FOOD, YOU HAVE A CERTAIN RESPONSIBILITY TO CHECK
THEM OUT AND MAKE SURE THEY'RE DOING A GOOD JOB. AND IF -- IF THEY GET
PEOPLE IN YOUR FACILITY SICK, THERE IS A FAIR CHANCE THAT YOU MAY WELL BE
HELD LIABLE FOR THE MISCONDUCT OF THE PEOPLE THAT YOU CHOSE AND
BROUGHT INTO THE FACILITY. YOU KNOW, THAT'S KIND OF ANCIENT,
ANGLO-AMERICAN COMMON LAW AND IT OUGHT TO -- WE OUGHT TO BE
MAKING SURE THAT IT APPLIES HERE BECAUSE OTHERWISE, YOU HAVE A
SITUATION WHERE, YOU KNOW, YOU CONTRACT OUT THE OPERATION OF THE
FACILITY TO A PAPER CORPORATION THAT HAS NO ASSETS AT ALL AND NO BUSINESS
DOING ANYTHING LIKE THIS, AND WHEN SOMETHING GOES WRONG, THE OWNER
WHO HAS ALL THE MONEY, YOU DON'T WANT THAT OWNER SAYING, OH, GO SUE
THE XYZ SHELL CORPORATION THAT HAS NO ASSETS, SEE WHAT IT GETS YA. ME
WITH ALL THE MONEY, I'M OFF THE HOOK. SO WE DON'T WANT THAT.
MR. BYRNE: BUT YOU MENTION THAT THIS IS MORE OF A
COMMON LAW OR AN ANGLO-SAXON LAW THAT'S BEEN LONG ESTABLISHED,
BUT HERE WE ARE CHANGING THE LAW TO -- TO MAKE THIS HAPPEN. SO YOU
BRING UP SOME OF THOSE EXAMPLES, ARE YOU SAYING THAT THAT IS SOMETHING
THAT IS HAPPENING TODAY, THAT THERE ARE PEOPLE WHO HAVE BEEN WRONGED
BY THESE -- THESE THIRD-PARTIES THAT HAVE NOT BEEN ABLE TO HOLD THE
FACILITIES LIABLE THAT HAVEN'T BEEN ABLE TO FILE A SUIT?
MR. GOTTFRIED: WELL, WHAT WE WANT TO DO HERE IS
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NYS ASSEMBLY MARCH 9, 2021
-- AND, YEAH, THERE ARE LOTS OF INSTANCES WHERE NURSING HOME OWNERS
CERTAINLY TRY TO EVADE THAT RESPONSIBILITY. I CAN'T CITE YOU EXAMPLES OF
CASES WHERE THEY'VE GOTTEN AWAY WITH IT, BUT I THINK IT'S IMPORTANT TO
PUT IT CLEARLY IN THE STATUTE. AND THE BILL DOES NOT -- IS CAREFULLY
WORDED HERE. IF YOU LOOK ON LINE 54, WHAT IT SAYS IS THAT THAT
CONTRACTING OUT, ET CETERA, SHALL NOT DIMINISH ANY RESPONSIBILITY OR
LIABILITY THAT THE OPERATOR WOULD OTHERWISE HAVE. SO WE'RE NOT
IMPOSING NEW LIABILITY HERE, WE'RE SAYING THE CONTRACTING OUT DOESN'T
GET YOU OFF THE HOOK FOR A LIABILITY THAT YOU WOULD OTHERWISE HAVE.
MR. BYRNE: IT'S A GOOD POINT, I APPRECIATE THAT.
AND ANOTHER QUESTION: WE'RE TALKING ABOUT NURSING HOMES, BUT THE
STATE IS ALSO A VERY LARGE STAKEHOLDER IN THIS FOR MANY REASONS OF WHICH
WE HAVE STATE-RUN FACILITIES. THIS WOULD APPLY TO THEM AS WELL NOW
AND ARE THEY -- IS THE STATE PROTECTED FROM THIS LIABILITY NOW BEFORE THIS
BILL PASSES?
MR. GOTTFRIED: WELL, YOU WOULDN'T BE SUING -- IF
YOU HAD A -- A CLAIM AGAINST A STATE-RUN NURSING HOME, YOU WOULD BE
SUING THE -- THE AGENCY OR PROBABLY FREESTANDING CORPORATION THAT IS THE
OWNER OF THAT NURSING HOME, SO YOU'RE NOT SUING THE STATE OF NEW YORK
ITSELF. SO IF YOU WERE GOING -- IF YOU WERE HEADING TOWARDS THE
QUESTION OF SOVEREIGN IMMUNITY, THAT WOULD NOT APPLY BECAUSE YOUR
LAWSUIT WOULD BE AGAINST THE NURSING HOME THAT THE STATE HAPPENS TO
OWN.
MR. BYRNE: OKAY. THANK YOU, CHAIRMAN.
I'LL BE SPEAKING ON THE BILL, MR. SPEAKER.
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ACTING SPEAKER AUBRY: ON THE BILL, MR.
BYRNE.
MR. BYRNE: THANK YOU, MR. SPEAKER. WITH
WHATEVER TIME I HAVE LEFT, I WANT TO CERTAINLY THANK THE CHAIRMAN FOR
HIS VERY THOROUGH EXPLANATION AND TAKING THE TIME TO ANSWER MY
QUESTIONS. WE'VE DISCUSSED THIS BILL, I THINK, SEVERAL TIMES WHETHER IT
BE IN COMMITTEE OR ON THE FLOOR TODAY. AND I UNDERSTAND THE INTENT
AND I COMMEND THE SPONSOR FOR THE INTENT THAT HE'S TRYING TO PRESENT
HERE AND HELP ALL THOSE NURSING HOME RESIDENTS AND MAKE SURE THAT
THERE'S TRANSPARENCY IN THIS PROCESS AND PUBLIC INPUT, AND VALUED
STAKEHOLDERS.
I DO HAVE CONCERN ABOUT HOW THIS COULD DELAY OR
PREVENT CONSOLIDATIONS AMONG NON-PROFITS -- NOT-FOR-PROFIT NURSING
HOMES AND MAY DELAY SOME NECESSARY CONTRACTUAL ARRANGEMENTS FOR
MANAGEMENT OR STAFFING SERVICES. I DO HAVE CONCERNS ABOUT OPENING
UP LIABILITY AS WELL. I THINK THE SPONSOR SPOKE ACTUALLY PRETTY WELL ON
THAT AND ADDRESSED SOME OF MY CONCERNS BUT, NONETHELESS, I STILL HAVE
SOME REMAINING QUESTIONS ON THAT. SO I EXPECT I'LL BE VOTING NO ON THIS
BILL, BUT AGAIN, I WANT TO THANK THE SPONSOR FOR TAKING THE TIME TO
ANSWER MY QUESTIONS. THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: CERTAINLY. THANK
YOU, MR. BYRNE, AND THANK YOU FOR THOSE SENTIMENTS AS YOU STARTED. I
CAN ONLY REMIND YOU OF AN OLD DIANA ROSS SONG, SOMEDAY WE'LL BE
TOGETHER.
(LAUGHTER)
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MS. WALSH.
MS. WALSH: THANK YOU, MR. SPEAKER. WILL THE
SPONSOR YIELD?
ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
YOU YIELD?
MR. GOTTFRIED: YES, I WILL.
MS. WALSH: THANK YOU SO MUCH, MR. GOTTFRIED.
SO MY -- MY COLLEAGUE ASKED SOME OF THE QUESTIONS THAT I WANTED TO
ASK, I DO HAVE A COUPLE MORE AND IF THEY'RE REDUNDANT, I APOLOGIZE, BUT
I JUST WANT TO BE SURE THAT I'M UNDERSTANDING THE -- THE BILL PROPERLY.
AS FAR AS THE SECTION WHICH WOULD REQUIRE 90 DAYS NOTICE OF ANY
MANAGEMENT OR STAFFING CONTRACT, I'M -- I'M A LITTLE CONCERNED THAT --
THAT DURING, YOU KNOW, A PANDEMIC, AS WE'VE BEEN EXPERIENCING, MANY
NURSING HOMES HAD TO USE STAFFING AGENCY CONTRACTS TO MAINTAIN SAFE
STAFFING LEVELS. WOULD YOU CARE TO COMMENT ABOUT THAT 90 DAYS NOTICE
AS BEING A PRACTICAL PROBLEM, PARTICULARLY DURING A STATE OF EMERGENCY
OR THE CURRENT PANDEMIC.
MR. GOTTFRIED: POINT ME TO THE -- DO YOU HAVE
THE PAGE AND LINE?
MS. WALSH: I BELIEVE IT'S -- WELL, PAGE AND LINE IS
DIFFICULT. I THINK IT'S SECTION 2803-X OF THE PUBLIC HEALTH LAW. LET'S
SEE IF I CAN FIND IT.
MR. GOTTFRIED: AH, OKAY, I GOT IT. YEAH.
MS. WALSH: THANK YOU. YOU'RE BETTER THAN I.
(PAUSE)
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NYS ASSEMBLY MARCH 9, 2021
MR. GOTTFRIED: WELL, THE FIRST PART OF THAT
SENTENCE IS -- IS EXISTING LAW. ALL WE'RE DOING THERE IS CHANGING THE
TERM "RESIDENTIAL HEALTH CARE FACILITY" TO "NURSING HOME," ON THE THEORY
THAT THREE SYLLABLES ARE BETTER THAN TEN.
(PAUSE)
MS. WALSH: IT WOULD BE PAGE 3, MAYBE AROUND LINE
14 OR SO.
MR. GOTTFRIED: YEAH, YEAH.
MS. WALSH: YEAH.
MR. GOTTFRIED: WELL, THAT SENTENCE APPLIES --
THAT SAYS YOU HAVE TO GIVE THE DEPARTMENT PRIOR NOTICE IF YOU HAVE A
FAMILY RELATIONSHIP WITH THE ENTITY THAT YOU'RE PROPOSING TO CONTRACT
WITH. YOU KNOW, IT'S NOT ALL THAT HARD TO FIND A STAFFING AGENCY THAT
YOUR COUSIN DOESN'T RUN. THE PROBLEM HERE IS THAT ALL TOO OFTEN,
NURSING HOMES CONTRACT OUT WITH ENTITIES THAT ARE REALLY A, YOU KNOW, A
SHAM AND THEY'RE RUN BY A FAMILY MEMBER AND IT'S JUST A WAY TO SYPHON
MONEY OF THE FACILITY OFF INTO, YOU KNOW, YOUR COUSIN'S POCKET AND IT
FIND ITS WAY BACK INTO YOUR POCKET. SO IF THERE'S AN EMERGENCY AND
YOU URGENTLY NEED TO CONTRACT WITH SOMEBODY AND IT'S NOT JUST A
QUESTION OF, YOU KNOW, EXPANDING AN EXISTING CONTRACT, THAT SENTENCE
ONLY REQUIRES NOTICE TO THE DEPARTMENT WHERE YOU HAVE PICKED A
FAMILY MEMBER'S AGENCY TO CONTRACT WITH.
MS. WALSH: YOU'RE ABSOLUTELY RIGHT. SO INSTEAD OF
LOOKING THERE, WOULD YOU PLEASE TAKE A LOOK AT PAGE 3, LINE -- STARTING
AROUND 35. SO THE NOTIFICATION REGARDING THE MANAGEMENT OPERATIONS,
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NYS ASSEMBLY MARCH 9, 2021
STAFFING AGENCY OR OTHER ENTITY TO BE INVOLVED IN THE OPERATIONS OF THE
FACILITY. I APOLOGIZE, I THINK I MISDIRECTED YOU AT THE BEGINNING THERE.
MR. GOTTFRIED: OKAY. LET ME JUST READ IT.
MS. WALSH: OF COURSE.
(PAUSE)
MR. GOTTFRIED: WELL, AGAIN, IT'S -- IT'S VERY
IMPORTANT THAT THE HEALTH DEPARTMENT HAVE THIS KIND OF INFORMATION.
THE LIKELIHOOD THAT A NURSING HOME ON SUCH SHORT NOTICE IS GOING TO
WANT TO BRING IN A STAFFING AGENCY THAT THEY DON'T ALREADY HAVE A
CONTRACT WITH AND IT'S JUST A MATTER OF EXPANDING IT I THINK IS LIMITED.
ALSO, AS WE'VE SEEN IN EMERGENCIES, THE HEALTH COMMISSIONER - AND
I'M NOT HERE REFERRING SPECIFICALLY TO THE GOVERNOR'S POWERS UNDER THE
EXECUTIVE LAW - BUT IN EMERGENCIES, HEALTH COMMISSIONERS HAVE
AUTHORITY TO -- TO MAKE EXEMPTIONS AND MAKE EXCEPTIONS. SO I THINK IF
YOU'RE TALKING ABOUT A GENUINE EMERGENCY, I DON'T THINK THIS WOULD BE
AN OBSTACLE. AND I DON'T KNOW WHETHER IN THE CASE OF THE COVID
EPIDEMIC ANY NURSING HOME ACTUALLY DIDN'T BRING IN A BRAND NEW
STAFFING AGENCY ON LESS THAN THREE-MONTHS NOTICE.
MS. WALSH: THAT'S -- THAT'S ACTUALLY WHAT -- THE
REASON WHY I ASKED THE QUESTION IS AT LEAST ANECDOTALLY I HEARD THAT THAT
WAS THE CASE, THAT THERE WERE SOME NURSING HOMES THAT HAD NEVER, IN
THE PAST, NEEDED TO BRING IN OUTSIDE STAFFING AGENCY, BUT BECAUSE OF THE
PANDEMIC AND I DON'T KNOW WHETHER IT WAS -- I DON'T KNOW WHAT THE
PROBLEM WAS WITH THE EXISTING STAFF, MAYBE IT WAS AN INFECTION OR
MAYBE IT WAS A RELUCTANCE TO, YOU KNOW, TO WORK IN A FACILITY WHERE
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THEY WERE AFRAID OF DANGER TO THEMSELVES, WHATEVER THE REASON THERE
WERE SOME NURSING HOMES THAT FELT THE NEED TO GO OUT AND CONTRACT IN
ORDER TO MAINTAIN THESE SAFE STAFFING LEVELS. SO I THINK YOUR
EXPLANATION IS WELL-TAKEN THAT IN A TRUE EMERGENCY, THE DEPARTMENT OF
HEALTH, THEN, WOULD HAVE THE ABILITY TO RELAX THESE REQUIREMENTS AS
CONTAINED IN THE BILL AND THE SECTION THAT WE WERE JUST TALKING ABOUT,
AND THAT'S FINE.
I THINK JUST -- I THINK JUST MOVING AHEAD, THE -- IS THERE
ANYTHING IN THE BILL -- I THINK THAT I HAD A NOTE HERE THAT IF A
NOT-FOR-PROFIT CONSOLIDATED WITH ANOTHER NOT-FOR-PROFIT OR A HOSPITAL,
THEN THE NEW PARENT COMPANY WOULD BE REQUIRED TO MAINTAIN OR RETAIN
ALL OF THE EMPLOYEES. IS THAT A TRUE STATEMENT BASED ON HOW THIS BILL
WOULD OPERATE?
(PAUSE)
MR. GOTTFRIED: YEAH, IF YOU LOOK ON THE TOP OF
PAGE 4 STARTING ON LINE 1, IT SAYS THAT A NEW OWNER OR OPERATOR,
MANAGEMENT COMPANY, ET CETERA, SHALL RETAIN ALL EMPLOYEES FOR AT LEAST
60 DAYS. THERE IS AN EXCEPTION - AT THE VERY END OF THAT SENTENCE IT
SAYS "EXCEPT FOR CAUSE." SO IF THERE ARE EMPLOYEES WHO, FOR CAUSE,
NEED TO BE FIRED, THEY COULD CERTAINLY DO THAT.
MS. WALSH: AND I DO SEE THAT, AND THANK YOU. I
THINK THAT THE CONCERN WITH THAT SECTION IS JUST THAT THAT MIGHT, EVEN IF
YOU TAKE THE CAUSE OUT OF IT, IT MIGHT JUST BE EXPENSIVE AND POSSIBLY
REDUNDANT TO HAVE TWO CFOS, TWO IT DIRECTORS, TWO DIRECTORS OF
SOCIAL WORK, YOU KNOW, ET CETERA, AND THAT COULD, IN FACT, DRIVE UP THE
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NYS ASSEMBLY MARCH 9, 2021
COST UNNECESSARILY AT A TIME, REALLY, WHEN, AS I THINK HAS BEEN POINTED
OUT, MEDICAID REIMBURSEMENT IS NOT COVERING COSTS AND SOME
NOT-FOR-PROFITS ARE FACING THE PROSPECT OF A CLOSURE OR SALE. SO I THINK
THAT'S MORE OF A -- I SUPPOSE THAT'S MORE OF A COMMENT THAN A QUESTION,
BUT I DID JUST WANT TO MAKE SURE THAT THAT IS, IN FACT, HOW THE -- HOW THE
BILL WOULD OPERATE, AT LEAST FOR THAT 60-DAY PERIOD. EVERYBODY, WHEN --
WHEN THE TWO ENTITIES CONSOLIDATED, WOULD NEED TO BE STILL RETAINED, BUT
FOR CAUSE.
MR. GOTTFRIED: WELL, AND -- AND -- AND THERE ARE
EXCEPTIONS. FOR EXAMPLE, THE -- THE NURSING HOME ADMINISTRATOR COULD
BE REPLACED IMMEDIATELY, BUT ESSENTIALLY WHAT THIS CALLS FOR IS A -- A
SHORT, REASONABLE TRANSITION PROCESS PRIMARILY SO THAT WORKERS ARE NOT
JUST UNCEREMONIOUSLY THROWN OUT. AND I THINK IT WOULD BE -- IT WOULD
BE RARE WHEN A BONA FIDE -- WHERE YOU HAVE A BONA FIDE MERGER OR
TAKEOVER OF A NOT-FOR-PROFIT BY ANOTHER NOT-FOR-PROFIT WHERE THIS KIND
OF TRANSITION PROCESS WOULD BE AN OBSTACLE. AND IT'S EASY TO SEE
CIRCUMSTANCES IN WHICH HAVING ONE OWNER COME IN AND JUST THROW
EVERYBODY ELSE OUT OVERNIGHT COULD -- COULD CREATE A REAL PROBLEM --
MS. WALSH: YEAH.
MR. GOTTFRIED: -- BOTH FOR -- FOR FRONTLINE
WORKERS, BUT ALSO FOR -- FOR ADMINISTRATORS AND FOR THE RUNNING OF THE
FACILITY.
MS. WALSH: THANK YOU FOR THAT ANSWER. I GUESS --
I JUST HAVE A LITTLE BIT OF REMAINING TIME. I WANTED TO BRING UP AN ISSUE
THAT MR. BYRNE, MY COLLEAGUE, HAD BROUGHT UP, AND THAT HAS TO DO WITH
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NYS ASSEMBLY MARCH 9, 2021
THE NURSING HOME OPERATOR NOT BEING ABLE TO DIMINISH THE
RESPONSIBILITY OR LIABILITY TO OPERATE THE NURSING HOME OR PROVIDE
CONTRACTED OR AGREED TO NURSING HOME SERVICES DELEGATING
RESPONSIBILITIES TO A THIRD-PARTY. HE MENTIONED SOMETHING LIKE FOOD,
YOU KNOW, LIKE A FOOD SERVICE OR SOMETHING. I WAS THINKING LIKE
CLEANING SERVICES, BUT IN ANY EVENT, UNDER CURRENT LAW A FACILITY
OPERATOR WHO NEGLIGENTLY HIRED AN INCOMPETENT CONTRACTOR WOULD BE
RESPONSIBLE, BUT THIS SEEMS TO MAKE THE FACILITY A GUARANTOR OF ANYBODY
THAT THEY WOULD CONTRACT OUT WITH. WOULD IT ALLOW A FACILITY TO
MAINTAIN, FOR EXAMPLE, LIKE A CROSS CLAIM IF THEY WERE SUED; COULD THEY
STILL CROSS CLAIM OR ARE THEY -- OR IT'S STRICTLY LIABLE?
MR. GOTTFRIED: NO, THERE'S NO OBSTACLE HERE TO
THE NURSING HOME SUING THE CONTRACTOR, AND THERE'S REALLY NO OBSTACLE TO
THE INJURED PARTY SUING THE CONTRACTOR. IT'S JUST THAT YOU WOULD BE -- THE
INJURED PARTY WOULD BE ENTITLED, ESSENTIALLY, TO HAVE THE PEOPLE HOLDING
THE MONEY BE -- ALSO BE NAMED AS A DEFENDANT. AND AGAIN, THE
PROBLEM HERE IS - AND IT'S NOT JUST IN THE NURSING HOME WORLD, IT
HAPPENS IN OTHER LINES OF BUSINESS, I'M SURE AS WELL - WHERE YOU PUT
PIECES OF THE OPERATION IN THE HANDS OF A SHELL COMPANY THAT HAS NO
ASSETS AND THEN WHEN -- WHEN THERE'S A LAWSUIT, THE INJURED PARTY IS LEFT
HOLDING THE BAG. AND THAT, WE JUST DON'T WANT THAT HAPPENING HERE AND
SO THAT'S THE PURPOSE OF THAT LANGUAGE.
MS. WALSH: I SEE, BUT EVEN -- EVEN UNDER OUR
CURRENT LAW, A COURT COULD PIERCE THE CORPORATE VEIL WHERE THE
CORPORATION IS MERELY A SHELL, SO IS THIS LANGUAGE THAT'S BEING INSERTED
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IN THE BILL REALLY NECESSARY?
MR. GOTTFRIED: WELL, I THINK IT IS THERE TO MAKE
EVERYTHING VERY CLEAR, BECAUSE THERE -- THERE ARE INSTANCES IN WHICH
THIS KIND OF THING HAPPENS AND IT -- THE BILL JUST MAKES CLEAR THAT THIS IS
NOT A WAY FOR EVADING YOUR LEGAL RESPONSIBILITY.
MS. WALSH: VERY GOOD. THANK YOU SO MUCH FOR
YOUR RESPONSES, MR. GOTTFRIED.
MR. GOTTFRIED: YOU'RE WELCOME.
ACTING SPEAKER AUBRY: THANK YOU.
MR. MONTESANO.
MR. MONTESANO: THANK YOU, MR. SPEAKER.
ON THE BILL.
ACTING SPEAKER AUBRY: ON THE BILL, SIR.
MR. MONTESANO: THANK YOU. FIRST, I JUST WANT
TO TAKE THIS OPPORTUNITY TO THANK THE SPONSOR OF THIS BILL BECAUSE I THINK
IT IS MUCH NEEDED IN TODAY'S TIMES. YOU KNOW, RIGHT NOW, UNLESS
ANYBODY HERE HAS THE EXPERIENCE, AND I'VE DONE SO FOR MANY OF MY
CLIENTS IN THE PAST, THERE IS MUCH MORE SCRUTINY THAN THIS WHEN YOU'RE
APPLYING FOR A STATE LIQUOR AUTHORITY LICENSE TO OPEN A BAR OR A
RESTAURANT. THE BACKGROUND CHECKS, THE FINGERPRINTS, THE FINANCIAL
DATA, EVERYTHING THEY DO IS EVEN MORE SUBSTANTIAL THAN WHAT WE'RE
ASKING HERE FOR NOW. AND I THINK THIS IS A VERY TIMELY PIECE OF
LEGISLATION BECAUSE THE OWNERS AND OPERATORS OF NURSING HOMES HAVE
BECOME VERY CREATIVE OVER THE YEARS OF HOW THEY INCORPORATE
THEMSELVES, WHO THEY DO BUSINESS WITH, HOW THEY INVOLVE THEMSELVES
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WITH DIFFERENT VENDORS.
AND THE BIG ITEM TODAY IS FARMING OUT WORK; HOSPITALS
DO IT ALSO. AS A MATTER OF FACT, IN OUR COURT SYSTEM THEY BRING AN
OUTSIDE VENDOR TO PROVIDE MAINTENANCE AND CLEANING; THEY DON'T USE
IN-HOUSE PEOPLE. EVERYBODY IS USING OUTSIDE VENDORS FOR COST-SAVING
MEASURES. BUT ADDITIONALLY, IT WILL TAKE LIABILITY OFF OF THEMSELVES OR
REDUCE THEIR LIABILITY WHEN SOMETHING ELSE GOES WRONG. IF YOU BRING IN
AN OUTSIDE VENDOR, BOTH OF YOU'S ARE GOING TO SHARE LIABILITY. SO IT
REDUCES THE LIABILITY EXPOSURE TO A NURSING HOME BECAUSE THEY HAVE
SOMEBODY ELSE TO CHARGE IT OUT TO.
BUT I THINK WE HAVE TO LOOK AT, IT'S VERY APPROPRIATE
THAT THERE'S A HIGH LEVEL OF SCRUTINY FOR PEOPLE WHO APPLY FOR A LICENSE
TO OPERATE A NURSING HOME. THERE'S A LOT OF FOREIGN INFLUENCES
INVOLVED, THERE'S A LOT OF DIFFERENT PEOPLE INVOLVED IN CREATING THESE
NURSING HOMES AND TO OPERATE THEM BECAUSE THEY'RE VERY LUCRATIVE,
NOTWITHSTANDING WHAT A LOT OF PEOPLE WOULD LIKE US TO BELIEVE. AND
THERE ARE EXCEPTIONS TO THE RULE BECAUSE THERE ARE SOME SMALL NURSING
HOMES, ESPECIALLY IN THE MORE RURAL PART OF THE STATE, THAT STRUGGLE TO
STAY AFLOAT AND, YOU KNOW, RUN A LEGITIMATE OPERATION. BUT AS WE COME
DOWNSTATE, ESPECIALLY INTO WESTCHESTER, NASSAU, SUFFOLK, NEW YORK
CITY, IT'S A PHENOMENAL BUSINESS AND IT'S HUNDREDS OF MILLIONS OF
DOLLARS A YEAR THAT'S FUNNELED THROUGH THEM BY MEDICAID AND BY
SELF-PAY PATIENTS. SO WE DO HAVE TO SCRUTINIZE WHO RUNS THESE PLACES.
YOU KNOW, GETTING TO THE ISSUE THAT WAS RAISED BY
SOME OF MY COLLEAGUES BEFORE, WHEN YOU TALK ABOUT A SHELL CORPORATION
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AND PIERCING THE CORPORATE VEIL, I'VE COME ACROSS THIS PERSONALLY IN THE
COURSE OF MY PRACTICE WHERE CORPORATE SHARES OR LLC SHARES BEING
HELD BY A CORPORATION THAT HOLDS AN INTEREST IN A NURSING HOME DOESN'T
HAVE INDIVIDUALS HOLDING THOSE SHARES, BUT THOSE SHARES ARE HELD BY A
TRUST, WHICH FURTHER INSULATES ANYBODY GETTING A JUDGMENT AGAINST
THEM. SO FORGET ABOUT THE SHELL CORPORATION NOT HAVING AN ASSET, THEY
COULD HAVE THEIR CORPORATE SHARES HELD BY A TRUST AND YOU'RE NOT GETTING
INTO THAT TRUST.
SO THERE'S MANY DIFFERENT OBSTACLES THEY USE TO PROTECT
THEMSELVES, TO INSULATE THEMSELVES, AND I SEE NO REASON WHY WE
SHOULDN'T BE MORE STRINGENT WITH THEM WHEN APPLYING FOR AN OPERATING
LICENSE, AND THE RULES OF HOW THEY OPERATE, VENDORS THEY BRING IN, THAT'S
ALL ACCEPTABLE, I KNOW WHY THEY BRING IN VENDORS, AGAIN, COST SAVINGS,
BUT ALSO TO SPREAD OUT LIABILITY. BUT IT'S UP TO THEM TO SCRUTINIZE WHO
THESE PROVIDERS ARE, WHO THESE VENDORS ARE AND WHO THEY'RE EMPLOYING.
WE'VE BEEN SPEAKING IN THE LAST SEVERAL WEEKS ABOUT
THE VULNERABLE POPULATION WE HAVE IN NURSING HOMES, AND THIS IS
EXACTLY WHY WE NEED TO HAVE THIS HEIGHTENED LEVEL OF SCRUTINY, BECAUSE
THESE PEOPLE CAN'T TAKE CARE OF THEMSELVES, THEY CAN'T EVEN SPEAK FOR
THEMSELVES IN MANY CASES, AND THEIR FAMILIES CANNOT BE ON TOP OF THEM
ALL THE TIME FOR THOSE WHO EVEN HAVE FAMILIES AVAILABLE TO BE WITH
THEM. THERE ARE SOME PEOPLE IN NURSING HOMES THAT HAVE NO ONE
WHATSOEVER TO PAY ATTENTION TO WHAT GOES ON. SO I THINK WHILE, YOU
KNOW, WE DON'T LIKE TO BE TOO RESTRICTIVE WITH THEM, I THINK IN THIS TYPE
OF CASE WE HAVE TO BE.
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AND ONE NOTE I WOULD MAKE, YOU KNOW, TO THE
SPONSOR AND TO OTHER MEMBERS IS THAT I THINK DOWN THE LINE WE HAVE TO
TAKE A SERIOUS LOOK AT HOW WE FUND THE DEPARTMENT OF HEALTH AND THEIR
STAFFING. YOU KNOW, IN MY -- NOW IN MY 11TH YEAR IN THE LEGISLATURE,
WE PASS MANY BILLS THAT THROWS MORE RESPONSIBILITY AND WORK ON THE
DEPARTMENT OF HEALTH, THE DEC AND OTHER STATE AGENCIES, BUT WE NEVER
ATTACH ANY FUNDING TO THEM FOR EXTRA STAFF. AND WE'RE ALWAYS TOLD WELL,
THEY'LL BE ABLE TO DO THIS WITHIN THE SCOPE OF THEIR CURRENT, YOU KNOW,
BUDGET OR WORK STAFF. AND I THINK WE'VE COME TO THIS POINT, ESPECIALLY
WITH THE DEPARTMENT OF HEALTH, THAT WE'VE OVERTAXED THEM. AND, YOU
KNOW, IT TAKES STAFF TO GO OUT AND INVESTIGATE, IT TAKES STAFF TO GO OUT
AND REVIEW DOCUMENTS AND SO ON AND SO FORTH, AND THAT ALSO TAKES
FUNDING. SO I THINK AS WE MOVE ALONG IN THESE AREAS, THIS IS SOMETHING
THAT WE'RE GOING TO HAVE TO TAKE, YOU KNOW, A GOOD -- A CLOSER LOOK AT.
SO FOR THESE REASONS AND FOR THE REASONS PRESENTED BY
THE SPONSOR IN HIS EXPLANATION AND DEBATE, I'LL BE SUPPORTING THIS BILL
AND VOTING IN THE AFFIRMATIVE. THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: THANK YOU, SIR.
MR. BURDICK.
MR. BURDICK: THANK YOU, MR. SPEAKER. AND I
FIRST WANT TO COMMEND THE SPONSOR FOR HIS WORK ON THIS BILL AND HIS
PERSISTENCE IN BRINGING IT FORWARD. AND I'VE BEEN LISTENING CLOSELY TO
THE VERY INTERESTING DISCUSSION AND DEBATE ABOUT IT AND, YOU KNOW, I
THINK THAT WHAT DISTINGUISHES WHAT'S GOING ON IN THE NURSING HOME
INDUSTRY FROM OTHER LINES OF BUSINESS IS THAT WE'RE FINDING THAT PRACTICES
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HAVE BECOME PERVASIVE, THAT IT THEN CALLS UPON OUR RESPONSIBILITY TO DO
SOMETHING ABOUT. I THINK THAT CHAIR GOTTFRIED HAS SAID DOES THIS OCCUR
IN OTHER AREAS? YES, IT PROBABLY DOES, BUT AT A POINT I THINK WE HAVE A
RESPONSIBILITY TO STEP IN, AND I THINK WE'VE REACHED THAT POINT, AND
PARTICULARLY, WHEN YOU'RE DEALING WITH A VERY VULNERABLE POPULATION.
AND SO THAT'S WHY I THINK THAT THERE IS SUBSTANTIAL REASON TO TAKE ACTION.
AND THE ARGUMENT HAS BEEN MADE ABOUT YES, YOU COULD PIERCE THE
CORPORATE VEIL WHERE YOU HAVE AN EFFORT TO INSULATE ONE CORPORATION
FROM LIABILITY BY CREATING ANOTHER CORPORATION, BUT PIERCING THE
CORPORATE VEIL IS NOT AN EASY THING TO DO. IT'S A PRETTY HEAVY BURDEN ON
THE PLAINTIFF TO BRING THAT.
I ALSO WOULD LIKE TO ALIGN MY THINKING WITH THE
PREVIOUS SPEAKER ABOUT THE FUNDING FOR THE DEPARTMENT OF HEALTH,
BECAUSE JUST IN THE SHORT TIME SINCE I'VE ARRIVED IN THE ASSEMBLY, THIS
BEING MY FIRST TERM, I HAVE SEEN TIME AND AGAIN WHERE WE ARE TAKING
ACTION WHICH DOES REQUIRE MORE FROM AGENCIES THAT NEED TO ENFORCE IT.
SO I HOPE THAT WE'LL BE MINDFUL OF THAT AS WE CONTINUE IN OUR WORK ON
THE BUDGET.
SO I WILL BE SUPPORTING THIS AND, AGAIN, I COMMEND
CHAIRMAN GOTTFRIED FOR HIS WORK ON IT AND FOR THE SPEAKER FOR BRINGING
THIS TO THE FLOOR. THANK YOU.
ACTING SPEAKER AUBRY: CERTAINLY.
MR. BURDICK AND FOR NEW MEMBERS, IF YOU'RE SPEAKING
ON A BILL, YOU NEED TO ANNOUNCE THAT IT IS ON THE BILL, OR THAT YOU'RE
ASKING THE SPONSOR TO YIELD SO THAT THE SPONSOR DOES NOT HAVE TO, IF HE
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WERE HERE IN THE CHAMBER, HE'D BE STANDING WHILE HE WAS TRYING TO
FIGURE OUT WHAT YOU WERE GOING TO GET TO. SO PLEASE KEEP THAT IN MIND.
THANK YOU VERY MUCH.
READ THE LAST SECTION.
THE CLERK: THIS ACT SHALL TAKE EFFECT IMMEDIATELY.
ACTING SPEAKER AUBRY: THE CLERK WILL RECORD
THE VOTE ON ASSEMBLY PRINT 5684-A. THIS IS A PARTY VOTE. ANY
MEMBER WHO WISHES TO BE RECORDED AS AN EXCEPTION TO THE CONFERENCE
POSITION IS REMINDED TO CONTACT THE MAJORITY OR MINORITY LEADER AT THE
NUMBERS PREVIOUSLY PROVIDED.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. ON RULES REPORT
NO. 37, BILL 5684, THE REPUBLICAN CONFERENCE IS GENERALLY IN THE
NEGATIVE, ALTHOUGH WE CERTAINLY HAVE SOME FINE MEMBERS THAT WANT TO
CALL THE LEADER'S OFFICE AND EXPRESS THEIR SUPPORT FOR THIS BILL. THANK
YOU, SIR.
ACTING SPEAKER AUBRY: MRS. PEOPLES-STOKES.
MRS. PEOPLES-STOKES: THANK YOU, MR.
SPEAKER. I SHOULD REMIND COLLEAGUES THAT THIS WILL BE -- MAJORITY
MEMBERS WILL BE VOTING IN THE AFFIRMATIVE. SHOULD COLLEAGUES DECIDE
TO BE AN EXCEPTION, THEY CAN CONTACT THE MAJORITY LEADER'S OFFICE AND
THEIR VOTE WILL BE PROPERLY RECORDED.
(THE CLERK RECORDED THE VOTE.)
ACTING SPEAKER AUBRY: MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. PLEASE RECORD THE
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FOLLOWING REPUBLICAN ASSEMBLYMEMBERS VOTING IN THE AFFIRMATIVE:
MR. DURSO, MR. FITZPATRICK, MS. MILLER, MR. MONTESANO AND MR. RA.
ACTING SPEAKER AUBRY: SO NOTED.
MRS. PEOPLES-STOKES.
MRS. PEOPLES-STOKES: MR. SPEAKER, IF YOU
COULD PLEASE RECORD OUR COLLEAGUE, JUDY GRIFFIN, IN THE NEGATIVE ON THIS
ONE.
ACTING SPEAKER AUBRY: SO NOTED.
ARE THERE ANY OTHER VOTES? ANNOUNCE THE RESULTS.
(THE CLERK ANNOUNCED THE RESULTS.)
THE BILL IS PASSED.
THE CLERK: ASSEMBLY NO. A05685-A, RULES
REPORT NO. 38, GOTTFRIED, GUNTHER, GALEF, CLARK, TAYLOR, PAULIN,
ABINANTI, BICHOTTE HERMELYN, MCDONALD, HEVESI, BRONSON, WALLACE,
STECK, DINOWITZ, THIELE, PERRY, JACOBSON, ENGLEBRIGHT, JACKSON,
CUSICK, ANDERSON, SIMON, BARRETT, SILLITTI, COOK, COLTON, MCMAHON,
AUBRY, RICHARDSON, FORREST, KELLES, BUTTENSCHON, SANTABARBARA,
DURSO. AN ACT TO AMEND THE PUBLIC HEALTH LAW, IN RELATION TO
ESTABLISHING A REQUIRED RESIDENT CARE SPENDING RATIO FOR NURSING HOMES.
ACTING SPEAKER AUBRY: AN EXPLANATION IS
REQUESTED, MR. GOTTFRIED.
MR. GOTTFRIED: THANK YOU, MR. SPEAKER. THIS
BILL WOULD ESTABLISH A MANDATORY MINIMUM PERCENTAGE OF A NURSING
HOME'S RESIDENT -- REVENUE THAT MUST BE SPENT ON WHAT THE BILL DEFINES
AS "RESIDENT CARE." THERE'S A LONG DEFINITION OF WHAT WOULD BE TREATED
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AS "RESIDENT CARE," AND IT REQUIRES THAT AT LEAST 70 PERCENT OF THE -- OF
THE TOTAL REVENUE BE SPENT ON RESIDENT CARE AND THAT AT LEAST 60 PERCENT
BE SPENT ON EMPLOYEES WHO PROVIDE DIRECT CARE TO RESIDENTS,
SPECIFICALLY NURSE AIDES, LPNS AND RNS. AND IF A NURSING HOME IN A
PARTICULAR YEAR DOES NOT MEET THOSE REQUIREMENTS, THE HEALTH
DEPARTMENT WOULD BE AUTHORIZED TO RECOUP THE DIFFERENCE EITHER BY
TAKING IT FROM THEIR NEXT YEAR'S MEDICAID FUNDING OR BY SUING THE
NURSING HOME. AND THAT'S PRETTY MUCH WHAT THE BILL DOES.
ACTING SPEAKER AUBRY: THANK YOU. MR.
BYRNE.
MR. BYRNE: THANK YOU, MR. SPEAKER. WILL THE
SPONSOR YIELD?
MR. GOTTFRIED: YES, INDEED.
ACTING SPEAKER AUBRY: THE SPONSOR YIELDS.
MR. BYRNE: I REMEMBERED THAT PART THIS TIME.
THANK YOU, MR. CHAIRMAN, AGAIN. THIS BUSY DAY OF BACK AND FORTH
DEBATING WITH YOU, SIR, IT IS A PLEASURE, AS ALWAYS.
FIRST QUESTION I HAVE FOR YOU IS WE TALKED ABOUT
PREVIOUS PROPOSALS AND POLICIES ABOUT NOT-FOR-PROFITS AND FOR-PROFITS
AND PUBLIC NURSING HOMES AND HOW GREAT OUR NOT-FOR-PROFIT NURSING
HOMES ARE IN THAT THEY DEDICATE THEIR REVENUE TOWARDS THEIR MISSION.
THIS BILL APPLIES TO ALL NURSING HOMES, INCLUDING NON-PROFITS. MAY I
ASK WHY?
MR. GOTTFRIED: WELL, BECAUSE WE DO WANT TO
MAKE SURE THAT EVEN IN A NON-PROFIT NURSING HOME, FUNDING IS --
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FUNDING GOES PRIMARILY TO DIRECT CARE BECAUSE YOU COULD HAVE A
NON-PROFIT ENTITY WHOSE OWNERSHIP ENTITY WAS NOT QUITE AS
PUBLICLY-SPIRITED AS SOME OTHERS AND WAS SYPHONING MONEY OFF TO
EXECUTIVES OR FAMILY MEMBERS OF EXECUTIVES, ET CETERA. SO WHILE IT IS
TRUE THAT ON THE WHOLE, NON-PROFIT NURSING HOMES SPEND A MUCH HIGHER
PERCENTAGE OF THEIR REVENUE ON RESIDENT CARE THAN FOR-PROFITS, YOU
KNOW, THERE'S A -- THERE'S A SPREAD AND WE WANT TO GET THEM ALL UP TO AN
APPROPRIATE LEVEL.
MR. BYRNE: WOULD YOU ACKNOWLEDGE THAT A LOT OF
CAPITAL COSTS FROM THESE FACILITIES ARE ALSO NECESSARY TO EITHER DELIVER
DIRECT CARE SAFELY OR IMPROVE RESIDENT QUALITY -- QUALITY OF LIFE? THAT'S
SOMETHING WE AT LEAST ALLUDED TO EARLIER IN A DIFFERENT DEBATE, BUT
OBVIOUSLY IT'S NOT JUST THE -- THE DIRECT CARE, BUT CAPITAL COSTS CAN ALSO
IMPROVE QUALITY OF LIFE AND DIFFERENT AMENITIES FOR RESIDENTS AT NURSING
HOMES. WOULD YOU AGREE WITH THAT STATEMENT AS WELL?
MR. GOTTFRIED: WELL, IN A GENERAL SENSE, SURE.
IF, YOU KNOW, IF THE ROOF FALLS IN IT'S HARD TO DELIVER QUALITY CARE. AND
THIS BILL CERTAINLY ALLOWS NURSING HOMES TO DO CAPITAL SPENDING, IT JUST
WOULDN'T COME OUT OF THE 70 PERCENT. AND, OF COURSE, YOU KNOW, IN
ALMOST ALL CASES, YOU KNOW, IF YOU HAVE $1 MILLION CAPITAL EXPENDITURE,
YOU DON'T PAY FOR THAT OUT OF ONE YEAR'S BUDGET, YOU -- YOU BORROW
MONEY AND YOU PAY IT OUT IN -- IN DEBT SERVICE OVER A PERIOD OF -- OF
YEARS. THAT'S HOW ANY ENTITY WOULD DO THAT.
MR. BYRNE: I WOULD AGREE. I MEAN, EVEN LOCAL
MUNICIPALITIES WITH BONDING, AND I CAN COMPLETELY AGREE WITH THAT
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STATEMENT. I FIND THAT INTERESTING BECAUSE OBVIOUSLY DEBT SERVICE IS
EXCLUDED FROM THAT 70 PERCENT NUMBER, YES --
MR. GOTTFRIED: CORRECT.
MR. BYRNE: -- PERCENT NUMBER, AS WELL. SO I COULD
MARRY INTO THAT, AS WELL, AND I'LL GET TO THAT POINT, BUT AS FAR AS CAPITAL
PROJECTS, AND I BROUGHT THIS UP IN COMMITTEE AND IN WAYS AND MEANS A
LITTLE BIT, BUT I DIDN'T REALLY QUITE DRILL DOWN. I WANTED TO BRING UP A
COUPLE CAPITAL IMPROVEMENTS THAT A LOT OF FACILITIES MAY HAVE TO DO IN
DEALING WITH THE PANDEMIC. FOR EXAMPLE, UPGRADING HVAC AND AIR
FILTRATION SYSTEMS, THAT'S IMPORTANT CONTROL OF AIRBORNE INFECTIONS,
CONVERTING SEMI-PRIVATE ROOMS TO PRIVATE ROOMS, ADDING ADDITIONAL
PRIVATE BATHROOMS, CREATING STRUCTURAL SEPARATIONS AMONG UNITS TO
SUPPORT COHORTING - I HATE THAT WORD - ADDING ENTRANCES AND EXITS,
DEVELOPING SAFE VISITATION SPACES - VISITATION, NOT THAT THERE'S BEEN
MUCH OF THAT THIS PAST YEAR - OR CREATING EVEN MORE HOME-LIKE
ENVIRONMENTS. ALL THOSE THINGS WOULD COUNT AS CAPITAL EXPENDITURES,
WOULD THEY NOT?
MR. GOTTFRIED: I -- I THINK THEY WOULD, YES.
MR. BYRNE: AND SO I THINK THAT'S WHERE I'M GOING
WITH THIS, I THINK YOU CAN TELL, IS WHILE I APPRECIATE THERE IS STILL AN
ABILITY WITHIN THEIR FINANCING TO FUND CAPITAL PROJECTS AND THERE IS AN
ABILITY TO FUND ADMINISTRATION AND FUND DEBT SERVICE, IT'S CERTAINLY
RESTRICTED BY SAYING 70 PERCENT OF THE TOTAL OPERATING REVENUE IS ON
RESIDENT CARE, OF WHICH 60 PERCENT OF IT IS REQUIRED BY -- THE DIRECT CARE
BY CERTIFIED NURSE ASSISTANTS, LICENSED PRACTICAL NURSES AND
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REGISTERED NURSES. THERE IS A LOT OF OTHER FUNDS THAT ARE NEEDED TO
OPERATE THESE FACILITIES, BUT GETTING BACK TO THE DEBT SERVICE ELEMENT TO
IT -- AND ACTUALLY, YOU KNOW, SKIPPING AHEAD. I THINK WE ADDRESSED THE
DEBT SERVICE PORTION. MAYBE ONE OF MY COLLEAGUES MIGHT FOLLOW UP ON
THAT. YOU DID MENTION IT IN YOUR EXPLANATION, IF A NON-PROFIT, FOR-PROFIT
PUBLIC SECTOR NURSING HOME, THEY FALL SHORT ON THE SHARE THAT THEY HAVE
TO PAY, THERE IS A -- THERE'S A STICK TO THIS BILL, RIGHT, AND THAT WOULD BE
THAT THE FACILITY WOULD BE REQUIRED TO REMIT THE SHORTAGE AMOUNT TO THE
STATE IN A TIME AND MANNER ESTABLISHED BY REGULATIONS. CAN YOU
EXPAND ON THAT? OR IS THAT PRETTY -- DID I JUST MADE THAT CLEAR?
MR. GOTTFRIED: I -- I THINK THAT'S PRETTY
STRAIGHTFORWARD, YEAH. YOU KNOW, BECAUSE THE -- I MEAN, THE DOLLAR
AMOUNTS INVOLVED ARE SUCH THAT, YOU KNOW, A $2- OR $3,000 FINE IS -- IS
NOT GOING TO DO THE TRICK IF THEY'RE POCKETING TOO MUCH OF THE MONEY
INSTEAD OF SPENDING IT ON RESIDENT CARE. SO THEY WOULD NOW HAVE A
VERY POWERFUL INCENTIVE TO SPEND IT ON RESIDENT CARE RATHER THAN PAYING
IT BACK TO THE DEPARTMENT.
MR. BYRNE: SOME OTHER QUESTIONS THAT WERE -- THAT
WERE RAISED TO SOME OF OUR COLLEAGUES WAS ABOUT CONTINUING CARE,
RETIREMENT COMMUNITY NURSING FACILITIES, AS WELL AS PEDIATRIC HOMES
AND THAT THEY WERE INCLUDED. AND THE CCRC NURSING FACILITIES RECEIVE
LITTLE OR NO MEDICAID REIMBURSEMENT UNDER DESIGN TO PROMOTE RELIANCE
ON PRIVATE PAY ARRANGEMENTS. IT SEEMS THAT THIS REALLY IS GOING TO
IMPEDE ON HOW THEY WANT TO DETERMINE HOW THEIR OWN MONEY IS GOING
TO BE SPENT ON THEIR NURSING HOME. IS THERE A REASON OR EXPLANATION
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YOU CAN PROVIDE AS TO WHY THESE CCRC NURSING FACILITIES ARE INCLUDED
IN THIS BILL?
MR. GOTTFRIED: YEAH. AND FIRST OF ALL, IT WOULD
ONLY APPLY TO THE NURSING HOME ITSELF. IT WOULD NOT APPLY TO ANY OTHER
PART OF THE CONTINUING CARE RETIREMENT COMMUNITY. AND THE FACT THAT
THE FOR-PROFIT ENTITY THAT OWNS A NURSING HOME ALSO OWNS A RETIREMENT
COMMUNITY DOESN'T REALLY MEAN THAT WE DON'T HAVE A LEGITIMATE
CONCERN ABOUT MAKING SURE THAT THE PEOPLE WHOSE -- WHOSE CONDITION
DETERIORATES TO THE POINT WHERE THEY ARE MOVED INTO A NURSING HOME
NEED TO BE PROPERLY TAKEN CARE OF. SO WHATEVER QUESTION YOU MIGHT
ASK ABOUT, YOU KNOW, WELL, WHY CAN'T A PRIVATE PAY FOR-PROFIT NURSING
HOME DO WHATEVER IT WANTS? WELL, BECAUSE WE'RE PROTECTING THE
NURSING HOME RESIDENTS. AND THE SAME ANSWER WOULD APPLY EVEN IF THE
NURSING HOME IS PART OF A COLLECTIVE THAT -- THAT OWNS, YOU KNOW, A VERY
NICE RETIREMENT HOME. IT REALLY SHOULDN'T MAKE ANY DIFFERENCE.
MR. BYRNE: THANK YOU, MR. CHAIRMAN. I
APPRECIATE YOUR COMMENTS ON THE BILL, AS ALWAYS.
MR. SPEAKER, ON THE BILL.
ACTING SPEAKER AUBRY: ON THE BILL, MR.
BYRNE.
MR. BYRNE: THANK YOU, MR. SPEAKER. AND AGAIN,
I'LL THANK THE CHAIR FOR TAKING THE TIME TO ANSWER MY QUESTIONS. SOME
OF MY COLLEAGUES MAY BE FOLLOWING UP AS WELL. I -- I APPRECIATE THE
INTENT OF THIS BILL, LIKE I DO WITH MANY OF THE SPONSOR'S BILLS. I VOTED
YES -- IN THE AFFIRMATIVE ON SOME OF THE PACKAGE THAT WE PASSED TODAY;
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I VOTED NO ON SOME OTHER PIECES. THIS IS ONE THAT I WILL BE VOTING IN
THE NEGATIVE ON.
I UNDERSTAND THE DESIRE TO TRY TO DRIVE MORE FOCUS ON
DIRECT CARE, BUT THERE ARE A LOT OF OTHER NEEDS THAT NEED TO BE
CONSIDERED FOR OPERATING THESE FACILITIES, AND CAPITAL EXPENSES AND DEBT
SERVICE, THOSE ARE TWO VERY IMPORTANT ONES. A LOT OF TIMES WE FOCUS IN
ON ADMINISTRATIVE COSTS, BUT CAPITAL EXPENSES, THEY'RE NOT, AS I POINTED
OUT EARLIER IN OUR DEBATE, IT'S NOT JUST ABOUT BUILDING SOME TAJ MAHAL,
THEY HAVE VERY REAL EFFECTS ON PATIENT CARE, INCLUDING SOME OF THE
NEEDS THAT WERE DISCOVERED EVEN MORE SO THROUGHOUT THE COURSE OF THE
PANDEMIC, LIKE UPGRADING THE FACILITIES TO HAVE BETTER INFECTION CONTROL
AND HVAC SYSTEMS. SO I THINK THAT IS A CONCERN OF MINE, AS WELL AS
JUST IN GENERAL TERMS. I -- IF A FACILITY IS A PRIVATE PAY AND PEOPLE DO
WANT TO GO TO IT BECAUSE THEY LIKE THAT FACILITY AND THEY DO A VERY GOOD
JOB, I THINK THAT THEY HAVE THE ABILITY TO MAKE SOME OF THESE DECISIONS.
AND THERE IS ANOTHER CONCERN THAT COSTS MIGHT BE --
THIS MIGHT ACTUALLY JUST ENCOURAGE FACILITIES TO BE SPENDING MORE
BECAUSE IF THEY'RE NOT ABLE TO MEET THAT PROPORTION, THEY MIGHT HAVE TO
JUST SPEND UP AND THEN PERHAPS EVEN DRIVE THEMSELVES MORE IN DEBT.
SO THERE IS A CONCERN ABOUT THAT AS WELL.
AGAIN, AS ALWAYS, I THANK THE SPONSOR FOR HIS TIME AND
CONSIDERATION. I KNOW HE HAS WORKED HARD ON THIS ISSUE AND I
APPRECIATE THAT, BUT I WILL BE VOTING IN THE NEGATIVE, MR. SPEAKER.
THANK YOU.
ACTING SPEAKER AUBRY: THANK YOU, SIR.
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MR. RA.
MR. RA: THANK YOU, MR. SPEAKER. WILL THE SPONSOR
YIELD?
ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
YOU YIELD?
MR. GOTTFRIED: YES, INDEED.
ACTING SPEAKER AUBRY: MR. GOTTFRIED YIELDS.
MR. RA: THANK YOU, CHAIR GOTTFRIED. SO I WANT TO
GO THROUGH A FEW DIFFERENT AREAS. MR. BYRNE DID TOUCH ON SEVERAL OF
THEM, BUT JUST TO GET A LITTLE MORE IN DEPTH IN THEM, JUST STARTING WITH,
YOU KNOW, THE -- THE ISSUE OF HOW THIS APPLIES TO BOTH FOR-PROFIT AND
NOT-FOR-PROFIT AND, YOU KNOW, ARE NOT-FOR-PROFITS -- I KNOW SEVERAL
YEARS AGO THERE WERE SOME REQUIREMENTS THAT WERE PUT IN RELATING TO,
YOU KNOW, ADMINISTRATIVE COSTS, EXECUTIVE SALARIES, THINGS OF THAT
NATURE, IF THEY GET A CERTAIN PERCENTAGE OF THEIR REVENUES THROUGH, YOU
KNOW, SUBSTANTIAL AMOUNT THROUGH STATE FUNDING, AND WE KNOW THESE
NOT-FOR-PROFIT ENTITIES ARE, YOU KNOW, THIS IS THEIR MISSION IS PROVIDING
THESE SERVICES. AND I UNDERSTAND WHAT YOU SAID, YOU KNOW, THERE ARE
-- THERE ARE PERHAPS SOME BAD ACTORS WHO MAYBE ARE TRYING TO PUT, YOU
KNOW, RELATIVES ON THE PAYROLL OR THINGS LIKE THAT, BUT JUST GENERALLY I
WOULD BE CONCERNED THAT THESE REQUIREMENTS COULD IMPACT THAT WHEN
THESE -- THESE -- THESE PARTICULAR NOT-FOR-PROFITS ARE ALREADY REQUIRED TO
AND ARE REALLOCATING THAT FUNDING TOWARDS THEIR MISSION. AND, YOU
KNOW, AS A RESULT OF THIS, IF THEY'RE NOT COMPLYING WITH IT THEY HAVE TO
REMIT IT TO THE STATE. SO SHOULD THERE NOT BE SOME, YOU KNOW, DIFFERENT
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APPROACH BETWEEN THE FOR-PROFITS AND THE NOT-FOR-PROFITS WITH REGARD TO
THIS?
MR. GOTTFRIED: I DON'T THINK SO. I THINK HOW
MUCH OF A NURSING HOME'S INCOME NEEDS TO BE SPENT ON RESIDENT CARE
DOESN'T REALLY, TO ME, DOESN'T REALLY VARY BASED ON WHETHER IT'S A
FOR-PROFIT FACILITY OR NOT. INTERESTINGLY, YOU KNOW, IF YOU LOOK AT THE
DATA, A VERY SUBSTANTIAL PORTION, MUCH HIGHER -- WELL, A VERY SUBSTANTIAL
PORTION OF NOT-FOR-PROFIT NURSING HOMES ARE ALREADY SPENDING NOT ONLY
70 PERCENT, BUT IN MANY CASES A LOT MORE THAN 70 PERCENT ON THE ITEMS
THAT WE WOULD CONSIDER RESIDENT CARE. THE NOT-FOR-PROFITS, BY AND
LARGE, ARE -- ARE GROUPED WELL BELOW 70 PERCENT. SO I THINK WHAT THAT
TEACHES US IS THAT YOU CAN RUN A -- A GOOD NURSING HOME SPENDING 70
PERCENT OR MORE ON -- ON RESIDENT CARE. TODAY, THERE -- THERE IS NO
REGULATION THAT -- THAT FOCUSES ON THE -- THE PERCENT OF -- OF REVENUE,
AND ONE RESULT IS THAT THAT MAKES IT EASY FOR FACILITIES THAT HAVE A MIND
TO DO SO TO SYPHON OFF AN AWFUL LOT OF THEIR MONEY AWAY FROM -- FROM
RESIDENT CARE AND INTO THE POCKETS OF EITHER OWNERS OR ENTITIES THAT
CONTRACT WITH THE OWNER, AND IT'S TIME FOR THAT TO END.
MR. RA: OKAY. SO YOU -- I MEAN, YOU JUST ALLUDED
TO IT, SO I'LL GO THERE IN TERMS OF ANY CONTRACTED SERVICES. YOU KNOW, I
THINK -- AND I SAID THIS LAST WEEK WITH A LOT OF THESE BILLS AND I VOTED
FOR MANY OF THEM AND MANY OF THEM ARE VERY WELL-INTENTIONED, BUT I
THINK THERE IS A NEED FOR US TO PULL BACK AT SOME POINT AND GET ALL THE
INFORMATION ABOUT WHAT'S GOING ON. AND I KNOW -- AND I WOULD NOTE
THAT DURING THIS PANDEMIC WE'VE GONE THROUGH THAT THERE SEEMS TO BE,
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YOU KNOW, SITUATIONS WHERE NURSING HOMES HAD TO GO AND RELY ON SOME
CONTRACTED SERVICES, BECAUSE AS YOU KNOW, AT THE HEIGHT OF THIS, I MEAN,
IT WAS ALL HANDS ON DECK. WE WERE BRINGING IN HEALTH CARE WORKERS
FROM OTHER STATES, WE WERE, YOU KNOW, PULLING HEALTH CARE WORKERS
FROM ONE FACILITY OR DIFFERENT UNITS ALL TRYING TO FIGHT THIS PANDEMIC
WHICH WAS, YOU KNOW, AN UNPRECEDENTED SITUATION AND ONE PERHAPS
THAT WE CERTAINLY CAN LEARN A LOT FROM AT THIS POINT BUT, YOU KNOW, IT
WAS HARD TO BE TRULY PREPARED TO UNDERSTAND WHAT THE NEEDS WERE GOING
TO BE.
SO ONE OF MY CONCERNS WOULD BE, DOES THIS IMPACT A
FACILITY'S, YOU KNOW, SITUATION IN THE FUTURE IF SOMETHING LIKE THAT
HAPPENS AND THEY ARE -- THEY WERE TO NEED TO BRING IN ADDITIONAL HELP
THROUGH CONTRACTED SERVICES?
MR. GOTTFRIED: NO, NOT AT ALL. WHAT IT -- WHAT IT
DOES IS, FIRST OF ALL, IT MEANS THAT THE NEXT TIME WE HAVE A PROBLEM,
MORE OF OUR FACILITIES WILL BE BETTER PREPARED FOR THAT PROBLEM BECAUSE
THEY WILL BE SPENDING ENOUGH OF THEIR MONEY ON STAFF AND OTHER DIRECT
-- AND OTHER RESIDENT CARE ISSUES. IF YOU'RE -- IF YOU'RE UNDERSTAFFED TO
START WITH, YOU'RE IN A MUCH WORSE SHAPE WHEN YOU FIND THAT YOU REALLY
NEED MORE STAFF. SO BEING BETTER STAFFED, IF THIS BILL HELPS WITH THAT AND
IF THE SAFE STAFFING BILL THAT I HOPE WE DO HELPS WITH THAT, THEY'LL BE
BETTER PREPARED IN THE FUTURE.
THE REASON FOR THE 80 PERCENT LANGUAGE IN THE -- IF
YOU'RE CONTRACTING OUT FOR STAFF IS THAT WE WANT TO MAKE SURE THAT WHEN
YOU'RE CONTRACTING OUT FOR STAFF, YOU'RE GETTING STAFF AND IT'S NOT JUST THE
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WAY TO PAY YOUR COUSIN A WHOLE LOT OF MONEY ON THE PRETEXT THAT YOUR
COUSIN IS SENDING IN NURSES. THAT'S WHY WE --
MR. RA: SURE. I MEAN, I THINK -- I THINK THAT'S AN
ISSUE THAT, THOUGH, WE COULD PERHAPS GET AT IN OTHER WAYS WITHOUT
SOMETHING THAT I, YOU KNOW, I THINK IF YOU'RE PAYING 120 PERCENT TO
BRING IN SOME -- SOME STAFF AND YOU'RE GETTING 80 PERCENT BACK, AND
LET'S ASSUME YOU'RE DOING THINGS PROPERLY, YOU KNOW, IT'S ABOVE BOARD,
YOU'RE NOT TRYING TO JUST PAY TO SOME CONTRACTED ENTITY BECAUSE YOU'RE
TRYING TO DO A FAVOR FOR SOMEBODY OR, YOU KNOW, MOVE MONEY AROUND
IN AN IMPROPER MANNER. I MEAN, I WOULD THINK THAT'S GOING TO CREATE A
DISINCENTIVE TO BRING IN THAT STAFF AND, I MEAN, IF THERE'S ONE THING WE
ALREADY KNOW IT'S THAT MANY OF THESE ENTITIES WERE UNDER STAFFED AND
THAT CAUSED MANY PROBLEMS DURING THE HEIGHT OF THIS PANDEMIC.
MR. GOTTFRIED: WELL, I THINK A CONTRACT AGENCY IS
ALWAYS GOING TO TAKE SOME MONEY OFF THE TOP FOR THEIR ADMINISTRATIVE
EXPENSES, AND THAT'S PERFECTLY APPROPRIATE, JUST DON'T CALL IT STAFFING,
CALL IT ADMINISTRATIVE EXPENSES OF THE STAFFING AGENCY. AND IF YOU'RE
PAYING THEM $100 TO GET $80 WORTH OF STAFF, THEN WE SHOULD COUNT THAT
YOU'RE GETTING $80 WORTH OF STAFF. YOU CAN PAY THE STAFFING AGENCY
WHATEVER YOU WANT, JUST DON'T CALL IT ALL STAFFING.
MR. RA: OKAY. SO I WANT TO MOVE TO ONE, YOU
KNOW, ONE OTHER ISSUE, AND MR. BYRNE DID ALLUDE TO THIS IN TERMS OF
DIFFERENT TYPES OF FACILITIES AND -- AND FORMATS, YOU KNOW, AND MY
UNDERSTANDING IS THIS PARTICULAR DEFINITION, YOU KNOW, THE REQUIREMENT
OF THE 60 PERCENT OF MINIMUM RESIDENT CARE SPENDING BE DEDICATED TO
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DIRECT CARE COST PROVIDED BY RNS, LPNS, AND AIDES. NOW WHAT ABOUT
SETTINGS WHERE THE STAFFING ARRANGEMENT TENDS TO RELY MORE HEAVILY ON
PHYSICIANS, NURSE PRACTITIONERS, AND -- AND THERAPY STAFF. YOU KNOW, IS
THIS A ONE-SIZE-FITS-ALL APPROACH THAT MAY NOT TAKE INTO ACCOUNT THE
DIFFERENT TYPES OF FACILITIES AND -- AND PATIENT POPULATIONS?
MR. GOTTFRIED: SOUNDS TO ME LIKE YOU'RE
DESCRIBING NOT A NURSING HOME, BUT A STEPDOWN UNIT IN A GENERAL
HOSPITAL, SO I -- I DON'T SEE THAT AS BEING A -- A SIGNIFICANT ISSUE HERE
AND I DON'T KNOW THAT -- THAT A NURSING HOME THAT IS SPENDING A CHUNK
OF ITS MONEY ON, LET'S SAY PHYSICIANS OR NURSE PRACTITIONERS, DOESN'T ALSO
NEED TO SPEND THE APPROPRIATE PERCENTAGE ON -- ON NURSE AIDES AND THE
LIKE. IF THERE ARE PEOPLE IN YOUR NURSING HOME WHO NEED PHYSICIANS
AND -- AND NURSE PRACTITIONERS, THEY ARE PROBABLY ALSO IN VERY
SIGNIFICANT NEED OF -- OF NURSE AIDES AND RNS.
MR. RA: OKAY. SO I WANT TO GET INTO ONE OTHER PIECE
OF, YOU KNOW, WE'RE OBVIOUSLY VIEWING SO MANY OF THESE ISSUES
THROUGH THE LENS OF THIS PANDEMIC AND, YOU KNOW, A YEAR AGO OR MAYBE
A LITTLE OVER A YEAR AGO AT THIS POINT, YOU KNOW, I THINK SO MANY OF
THESE, AND I DON'T EVEN WANT TO GET INTO THE CAPITAL ISSUE BECAUSE THAT
CERTAINLY IS IMPLICATED BY THIS, BUT SO MANY OF THESE ENTITIES COULDN'T
HAVE CONTEMPLATED SOME OF THE NEEDS THEY WOULD HAVE TO GET THROUGH
THAT PERIOD AND -- AND SUDDENLY, YOU KNOW, HAVING TO SPEND ON ALL
KINDS OF THINGS THAT WOULD BE LOOKED AT AS NON-DIRECT CARE COSTS UNDER
THIS. YOU KNOW, WOULD THINGS LIKE PPE AND, YOU KNOW, PHYSICAL
BARRIERS, ALL THAT TYPE OF STUFF BE OUTSIDE OF THIS DIRECT CARE? I MEAN, I
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COULD SEE INSTANCES WHERE THESE ARE OBVIOUSLY NEEDED THINGS AND I
THINK WE'RE LIKELY GOING TO SET UP THESE TYPES OF FACILITIES DIFFERENTLY AS
A RESULT OF THIS TO BE READY TO, UNFORTUNATELY, HAVE TO DEAL WITH AN
INFECTION, YOU KNOW, WE TALKED ABOUT THAT OTHER BILL EARLIER. BUT WOULD
THINGS LIKE THAT BE OUTSIDE OF THIS -- THIS DEFINITION AND HOW DOES THAT
IMPACT A FACILITY THAT HAS TO, YOU KNOW, RESPOND TO A FUTURE PANDEMIC
AND MAKE SURE THEY HAVE THE EQUIPMENT TO PROTECT THE PATIENTS AND THE
STAFF?
MR. GOTTFRIED: WELL, FIRST OF ALL, THOSE EXPENSES
-- I BELIEVE IF YOU LOOK CAREFULLY AT THE -- AT THE DEFINITION OF "RESIDENT
CARE" WOULD BE INCLUDED IN RESIDENT CARE. THAT'S NUMBER ONE. NUMBER
TWO -- AND NUMBER TWO, YOU KNOW, THE DEPARTMENT CAN -- THE HEALTH
DEPARTMENT CAN EASILY DEFINE THOSE EXPENSES AS BEING WHAT THE BILL
REFERS TO AS "ANCILLARY CARE SERVICES." ALSO, BY THE WAY, I NOTICED THAT
-- THAT MEDICAL CARE, WHICH WOULD BRING IN YOUR PHYSICIANS AND -- AND
NURSE PRACTITIONERS, WOULD BE INCLUDED IN THE -- IN THE -- IN THE
DEFINITION OF "RESIDENT CARE" UNDER THE BILL.
MR. RA: ALL RIGHT. THANK YOU, MR. GOTTFRIED.
MR. SPEAKER, ON THE BILL.
ACTING SPEAKER AUBRY: ON THE BILL, SIR.
MR. RA: AND I HAVE TO SAY, IT'S ALWAYS -- ALWAYS A
PLEASURE TO HAVE THESE CONVERSATIONS WITH MR. GOTTFRIED AND, CERTAINLY,
OFTEN I MISS SERVING ON THE HEALTH COMMITTEE, WHICH I HAD THE
OPPORTUNITY TO DO FOR MANY YEARS AND SEE SO MANY OF THESE BILLS COME
THROUGH AND LEARN EVERYTHING I'VE HAD THE OPPORTUNITY TO LEARN ON
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SERVING ON THAT COMMITTEE.
I JUST WANT TO, YOU KNOW, PULLING BACK WHEN WE LOOK
AT THIS WHOLE PACKAGE, AND I THINK BACK TO THE BILL WE DID LAST WEEK
THAT IS DESIGNED TO -- TO DEAL WITH THIS ISSUE THAT HAS NOW COME UP AND
WAS TALKED ABOUT IN THE ATTORNEY GENERAL'S REPORT ABOUT, YOU KNOW,
WE'VE GONE FROM 40.5 PERCENT TO 30.5 PERCENT OVER -- OVER THE LAST
DECADE OR SO IN TERMS OF NOT-FOR-PROFIT NURSING HOMES AND, YOU KNOW,
TRYING TO ADDRESS THAT. BUT THE PROBLEM I SEE HERE, YOU KNOW, THIS IS
GOING TO GO INTO EFFECT NEXT YEAR IN 2022 AND OBVIOUSLY WE ALL HOPE
WE'RE IN A MUCH BETTER PLACE AND WE'RE MOVING IN THAT DIRECTION
CERTAINLY WITH THE VACCINATIONS GOING OUT, BUT THESE FACILITIES ARE STILL
GOING TO BE STRUGGLING AS A RESULT OF WHAT THEY'VE GONE THROUGH THE LAST
YEAR PLUS. AND NEW REQUIREMENTS THAT THEY'RE GOING TO HAVE TO DEAL
WITH, THEY MAY BE DEALING WITH, YOU KNOW, THINGS LIKE DEBT SERVICE ON
-- ON CAPITAL IMPROVEMENTS THAT THEY HAD TO MAKE TO RESPOND TO THIS,
AND THAT'S GOING TO BE CALCULATED OUTSIDE OF THIS.
SO WE'RE GOING TO HAVE A SITUATION WHERE WE'RE
ENSURING THERE'S NO NEW FOR-PROFIT ENTITIES. AND LIKE I SAID LAST WEEK, I
THINK THAT THE BETTER APPROACH IS TO -- AND PART OF WHY I SUPPORTED THE
PREVIOUS BILL IS BECAUSE I THINK WE NEED TO JUDGE THE FACILITIES ON THEIR
MERITS RATHER THAN SAY THEY'RE FOR-PROFIT, THEY'RE NOT-FOR-PROFIT, THEY'RE
NO GOOD, THEY ARE GOOD BASED ON JUST -- JUST THAT ALONE. BUT -- BUT I
THINK WE'RE GOING TO BE REDUCING THE ABILITY OF FOR-PROFITS TO OPEN AND
EXISTING COMPANIES TO OPEN NEW ENTITIES AND THEN FURTHER, POTENTIALLY
SQUEEZING NOT-FOR-PROFITS WITH THIS PIECE OF LEGISLATION AS WELL.
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SO I HAVE GREAT CONCERN, NUMBER ONE, HOW THIS
IMPACTS THOSE ENTITIES AS THIS GOES INTO EFFECT, AS THEY'RE JUST TRYING TO
RECOVER FROM THIS PANDEMIC, BUT ALSO, AS THEY'RE TRYING TO PLAN AHEAD
FOR THE NEXT HEALTH CRISIS AND TRYING TO MAKE SURE THEIR FACILITIES ARE
PREPARED THAT THEY CAN DEAL WITH THE WORST OF WHAT THEY SAW IN THE LAST
YEAR, THAT THEY HAVE THE ABILITY TO MAYBE MAKE MORE OF THEIR ROOMS
PRIVATE SO THAT THEY CAN ISOLATE A PATIENT WHO HAS SYMPTOMS OF SOME,
YOU KNOW, INFECTIOUS DISEASE, SO THAT THEY CAN, YOU KNOW, IF THEY NEED
TO CONVERT CERTAIN FACILITIES INSIDE -- INSIDE THEIR WALLS SO THAT THEY CAN,
YOU KNOW, SECTION -- SECTION OFF THE FACILITY, OR EVEN SOME OF THE MORE
ADVANCED EQUIPMENT THAT THEY MAY NEED TO MEET THE NEEDS OF THEIR
PATIENTS.
SO FOR THOSE REASONS, I'M GOING TO BE CASTING MY VOTE
IN THE NEGATIVE, AND I HOPE THAT WE CONTINUE TO NOT JUST HAVE A DIALOG
ABOUT THIS, BUT REALLY SEEK THE FULL ANSWERS, WHETHER IT'S THROUGH
HEARINGS OR OTHERWISE, TO MAKE SURE WE KNOW EVERYTHING WE NEED TO
KNOW SO THAT WE CAN ACT ACCORDINGLY WITH OUR -- WITH OUR STATUTORY
RESPONSE TO MAKE SURE THAT IN THE FUTURE, WE CAN DO OUR VERY BEST TO
MAKE SURE THE RESIDENTS OF -- OF NURSING HOMES ARE SAFE.
THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: THANK YOU, SIR.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. WOULD THE SPONSOR
YIELD?
ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
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YOU YIELD? MR. -- THERE WE GO.
MR. GOTTFRIED: ALL RIGHT. THERE WE GO.
ACTING SPEAKER AUBRY: THANK YOU, SIR.
WILL YOU YIELD?
MR. GOTTFRIED: YES, I YIELD, CERTAINLY.
ACTING SPEAKER AUBRY: THE SPONSOR YIELDS.
MR. GOODELL: THANK YOU, MR. GOTTFRIED. I WAS
GETTING A LITTLE BIT NERVOUS THERE. THIS LEGISLATION HAS VARIOUS
PERCENTAGES IN IT, THE 70 PERCENT OF THE REVENUE HAS TO GO TO PATIENT
CARE, ONLY SIX PERCENT OF THAT HAS TO BE TO CERTAIN TYPES OF STAFF. WHERE
DID THOSE PERCENTAGES COME FROM?
MR. GOTTFRIED: THEY COME FROM LOOKING AT DATA
ON CURRENT LEVELS OF SPENDING THAT -- THAT MOST NURSING HOMES ARE ABLE
TO EITHER EXCEED OR COME PRETTY DARN CLOSE TO. SO THEY WEREN'T JUST
PICKED OUT OF A HAT, THEY'RE -- THEY'RE BASED ON -- ON EXPERIENCE AND
WHAT IT -- WHAT WE HAVE FOUND THAT -- THAT GOOD NURSING HOMES CAN
AFFORD TO DO.
MR. GOODELL: AND IS THIS BASED ON STATISTICAL
ANALYSIS AND, IF SO, WHAT WAS THE CORRELATION EFFICIENCY BETWEEN THESE
NUMBERS AND CARE?
MR. GOTTFRIED: WELL, I DON'T KNOW THAT ANYONE
HAS DONE A MATHEMATICAL ANALYSIS, YOU KNOW, TRYING TO RUN CORRELATION
BETWEEN CMS STAR NUMBERS AND -- AND YOUR PERCENT OF RESIDENT CARE,
AND THAT WOULD BE A QUESTIONABLE VALUE BECAUSE THE CMS STAR RATING
SYSTEM IS -- IS A LITTLE -- IS A LITTLE DICEY TO BEGIN WITH. BUT CERTAINLY,
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YOU KNOW, YOU CAN -- YOU CAN EYEBALL A LIST AND -- AND -- AND SEE WHERE
NURSING HOMES WHO ARE WELL-KNOWN AS BEING PROBLEMS ARE AND WHERE
NURSING HOMES THAT ARE WELL-KNOWN AS -- AS BEING QUALITY FACILITIES ARE.
AND IT CERTAINLY MAKES LOGICAL SENSE THAT NURSING HOMES THAT SPEND
MORE MONEY ON THE THINGS THAT WE HAVE PUT IN THE 70 PERCENT CATEGORY
WOULD BE DOING BETTER.
MR. GOODELL: OF COURSE THIS IS ALL -- THIS BILL ALL
RELATES TO FINANCIAL ACCOUNTING, SO IF YOU DON'T MIND, I WANTED TO ASK
SOME QUESTIONS. THE DEFINITION OF REVENUES APPEAR TO BE QUITE BROAD,
INCLUDING ANY REVENUE FROM ANY SOURCE. SO IF A NOT-FOR-PROFIT, FOR
EXAMPLE, RECEIVED A GRANT FROM A FOUNDATION FOR A CAPITAL INVESTMENT,
OR MAYBE NEW FURNITURE, NEW BEDS OR NEW FURNITURE OR NEW EQUIPMENT,
OR -- OR THINGS OF THAT NATURE. AM I CORRECT, THE ENTIRE AMOUNT OF THE
GRANT WOULD BE CONSIDERED REVENUE EVEN THOUGH IT'S A ONE-TIME
NON-REOCCURRING SOURCE OF INCOME?
MR. GOTTFRIED: WELL, NO. THERE -- THERE IS A
DEFINITION OF "TOTAL OPERATING REVENUE" AND IT MEANS REVENUE RECEIVED
BY THE NURSING HOME FROM OR ON BEHALF OF RESIDENTS OF THE NURSING
HOME, GOVERNMENT PAYERS OR THIRD-PARTY PAYERS TO PAY FOR A RESIDENT'S
OCCUPANCY OF THE NURSING HOME, RESIDENT CARE, AND THE OPERATION OF THE
NURSING HOME. SO IF, YOU KNOW, SOME MULTI-MILLIONAIRE MAKES A GRANT
TO A NURSING HOME OR EVEN PEOPLE IN TOWN, YOU KNOW, GIVE THE MONEY
THROUGH A BAKE SALE, THAT WOULD NOT BE -- FIT THE DEFINITION OF, YOU
KNOW, THIRD-PARTY PAYERS PAYING FOR RESIDENT CARE. SO THAT KIND OF
OUTSIDE GRANT OR -- OR CONTRIBUTION WOULD NOT COUNT AS TOTAL OPERATING
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REVENUE.
MR. GOODELL: AND THAT WOULD APPLY EVEN IF THE
GRANT, FOR EXAMPLE, WAS USED TO BUY HEALTH CARE EQUIPMENT, YOU KNOW,
WHETHER IT'S VENTILATORS OR -- OR ANY OTHER TYPE OF EQUIPMENT?
MR. GOTTFRIED: RIGHT. AND -- WHICH MEANS THAT
THE 70 PERCENT REQUIREMENT WOULD NOT APPLY TO THOSE DOLLARS AND THAT'S
BECAUSE THEY ARE NOT BEING PAID BY A THIRD-PARTY PAYER TO PAY FOR THE
RESIDENTS CARE, ET CETERA.
MR. GOODELL: NOW CAN WE TALK A LITTLE BIT ABOUT
WHAT RESIDENT CARE EXPENSES ARE NOT INCLUDED IN THIS FORMULA? AM I
CORRECT THAT IN CALCULATING THE AMOUNT SPENT ON RESIDENT CARE, WE
EXCLUDE ALL ADMINISTRATIVE EXPENSES, CAPITAL EXPENSE, AND DEBT
SERVICE?
MR. GOTTFRIED: WELL, WE EXCLUDE ADMINISTRATIVE
COSTS OTHER THAN NURSE ADMINISTRATION, BUT OTHER THAN THAT EXCEPTION,
YOU'RE RIGHT.
MR. GOODELL: AND I SEE THAT IN MAKING THESE
MATHEMATICAL CALCULATIONS, IT'S ALL ON AN ACCRUAL BASIS, BUT PRESUMABLY
ANY PAY -- PAYMENT OR CIVIL PENALTY, IF YOU WILL, TO THE HEALTH
DEPARTMENT IS -- IS EXPECTED TO BE MADE IN CASH. DOES THIS BILL
ADDRESS THE SITUATION WHERE A NURSING HOME MIGHT HAVE SIGNIFICANT
ACCOUNT RECEIVABLES, AND SO ON AN ACCRUAL BASIS THEY MIGHT NOT BE
MAKING THIS RATIO, BUT ON A CASH BASIS, THEY MIGHT BE?
MR. GOTTFRIED: I -- I DON'T KNOW THAT -- I DON'T
KNOW THAT WHAT YOU'RE SAYING WOULD -- WOULD -- WOULD BE THE CASE.
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PART OF THE REASON FOR USING ACCRUAL BASIS IS THAT BECAUSE OF THE WAY
MEDICAID PAYS FOR THINGS, A NURSING HOME IN 2021 MIGHT WELL BE --
WOULD ALMOST CERTAINLY BE GETTING PAYMENTS FROM THE HEALTH
DEPARTMENT FOR SERVICES THEY DELIVERED IN 2020 OR 2019, MAYBE EVEN
EARLIER. AND SO YOU WANT BOTH THE REVENUE AND THE EXPENSES APPLIED TO
THE CORRECT YEAR. AND, YOU KNOW, ONE CONSEQUENCE OF THAT IS THAT, YOU
KNOW, WHEN -- WHEN A GIVEN CALENDAR YEAR IS UP, YOU -- YOU MAY NOT
BE ABLE TO SAY AT THAT MOMENT WHAT ALL THE EXPENSES WERE AND WHAT ALL
THE REVENUE WAS, BUT AT SOME POINT YOU'D BE ABLE TO ADD ALL THAT UP.
MR. GOODELL: WELL, I APPRECIATE THAT EXPLANATION,
BUT AS YOU CAN EQUALLY APPRECIATE, ALMOST ALL YOUR PATIENT CARE
EXPENSES ARE DIRECT CASH FLOW ISSUES. YOU DON'T TELL YOUR NURSES, I'LL
PAY YOU IN TWO YEARS WHEN I GET MEDICAID REIMBURSEMENT. YOUR
NURSES EXPECT TO BE PAID EVERY WEEK OR BIWEEKLY OR WHATEVER --
MR. GOTTFRIED: RIGHT.
MR. GOODELL: -- SO IT'S ENTIRELY POSSIBLE WITH
MEDICAID REIMBURSEMENTS BEING A YEAR OR TWO BEHIND THAT YOU COULD
BE PAYING WAY IN EXCESS OF THE 60 TO 70 PERCENT ON A CASH FLOW BASIS
EVEN THOUGH ON AN ACCRUAL BASIS -- I MEAN ON A CASH FLOW BASIS YOU
MAY BE WAY AHEAD OF THAT, BUT IF YOU LOOK AT JUST AN ACCRUAL BASIS, THE
ACCRUAL BASIS GIVES THE FACILITY REVENUE CREDIT FOR REVENUE IT HASN'T
ACTUALLY RECEIVED. HOW DOES THIS BILL ADDRESS THAT PROBLEM?
MR. GOTTFRIED: IT MAKES A CHOICE AND IT SAYS
ACCRUAL BASIS. MOST BUSINESSES OPERATE ON AN ACCRUAL BASIS, AS I
UNDERSTAND IT, AND PAY THEIR TAXES ON AN ACCRUAL BASIS.
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NYS ASSEMBLY MARCH 9, 2021
MR. GOODELL: DOES THIS -- DOES THIS BILL --
MR. GOTTFRIED: BY THE WAY, IF THE BILL --
MR. GOODELL: I'M SORRY.
MR. GOTTFRIED: EXCUSE ME. IF THE BILL SAID CASH
BASIS, I WOULD BET YOU'D FIND SIX REASONS WHY CASH BASIS WAS A CRAZY
WAY TO DO IT.
MR. GOODELL: ACTUALLY, I'VE ALWAYS OPERATED MY
BUSINESS ON A CASH BASIS AND, THANKFULLY, ALL MY CHECKS HAVE BEEN ABLE
TO BEEN CASHED, BUT DO WE -- DOES THIS BILL REQUIRE THE FACILITIES TO DO
AN AUDITED FINANCIAL STATEMENT AND, IF SO, DOES IT HAVE TO MEET GASB
STANDARDS, OR FASB, OR WHAT STANDARDS DO THEY HAVE TO MEET?
MR. GOTTFRIED: THIS BILL DOES NOT APPLY -- DOES
NOT SPEAK TO THEIR ACCOUNTING METHODS. I AM QUITE CERTAIN THAT THERE
ARE OTHER REGULATIONS AND REQUIREMENTS ELSEWHERE THAT DEAL WITH THEIR
ACCOUNTING MECHANISMS.
MR. GOODELL: AND DO WE ANTICIPATE THAT THESE --
OH, I'M SORRY.
MR. GOTTFRIED: AND THERE'S 2805-E OF THE PUBLIC
HEALTH LAW REGULATES THEIR COST REPORTS WHICH THIS BILL PLUGS INTO, SO
THERE ARE ACCOUNTING REQUIREMENTS ALL OVER THE PLACE HERE.
MR. GOODELL: I APPRECIATE THAT. NOW UNDER THIS
BILL, IF A FACILITY FOR SOME REASON ISN'T SPENDING 70 PERCENT OF ITS
REVENUE ON -- ON PATIENT CARE, LET'S SAY THEY'RE SPENDING 60 PERCENT ON
PATIENT CARE, THEY WOULD THEN HAVE TO PAY THE HEALTH DEPARTMENT TEN
PERCENT OF THEIR TOTAL REVENUE, IS THAT CORRECT?
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NYS ASSEMBLY MARCH 9, 2021
MR. GOTTFRIED: YES.
MR. GOODELL: AND IS THERE ANY EXCEPTIONS UNDER
THIS BILL --
MR. GOTTFRIED: OTHERWISE -- OTHERWISE THEY'D
HAVE A BIG INCENTIVE TO TELL THE LEGISLATURE AND THEIR LAW TO GO FLY A
KITE WHICH IS WRONG.
MR. GOODELL: SO IS THERE ANY EXCEPTION TO THAT
PAYMENT TO THE HEALTH DEPARTMENT IF, FOR EXAMPLE, THE FACILITY HAS AN
ABSOLUTELY CLEAN INSPECTION REPORT, I MEAN -- AND LET'S SAY - AND THIS HAS
HAPPENED IN MY -- IN MY COUNTY, I HAVE SOME GREAT FACILITIES - NOT A
SINGLE CITATION. DO THEY STILL HAVE TO PAY THAT EXTRA MONEY BACK TO THE
HEALTH DEPARTMENT?
MR. GOTTFRIED: IF THEY'RE BREAKING THE LAW AND
THEY'RE NOT SPENDING THEIR MONEY ON RESIDENT CARE, YES.
MR. GOODELL: AND IF THEY HAVE A 5-STAR RATING --
MR. GOTTFRIED: BY THE WAY -- BY THE WAY, THAT'S
WHAT WE WANT THEM TO DO AND, BY THE WAY, FOR A LONG TIME AT THE STATE
AND FEDERAL LEVEL, WE HAVE TOLD HEALTH INSURANCE COMPANIES THAT A
CERTAIN PERCENTAGE OF THEIR REVENUE HAS TO BE SPENT ON -- ON BENEFITS.
IT'S NOT AN ALIEN CONCEPT HERE.
MR. GOODELL: AND LIKEWISE, I ASSUME THAT
REGARDLESS OF WHAT PERFORMANCE MEASUREMENT YOU USE, WHETHER IT'S A
5-STAR RATING, AND YOU AND I BOTH HAVE SOME CONCERNS OVER THE
ACCURACY OF THAT, WHETHER IT'S PATIENT SATISFACTION SURVEYS, IT DOESN'T
MATTER IF THE FACILITY HAS 5-STAR PERFECT RATINGS IN EVERY SINGLE CATEGORY,
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NYS ASSEMBLY MARCH 9, 2021
PATIENT SATISFACTION IS 100 PERCENT, IT HAS, YOU KNOW, RECOMMENDATIONS
THAT ARE A MILE LONG, IF THEY DON'T MEET THESE RATIOS THEY HAVE TO PAY
MONEY BACK -- OR PAY MONEY TO THE HEALTH DEPARTMENT, IS THAT CORRECT?
THIS IS NOT -- THIS PAYMENT IS A FINANCIAL CALCULATION, NOT A PERFORMANCE
CALCULATION, IS THAT CORRECT?
MR. GOTTFRIED: IT IS, AND THAT'S PARTLY IN ORDER TO
HAVE SOMETHING THAT IS A LITTLE MORE OF AN OBJECTIVE STANDARD RATHER
THAN AN OPINION SURVEY.
MR. GOODELL: THANK YOU VERY MUCH.
MR. GOTTFRIED: THERE ARE WAYS YOU CAN -- YOU
CAN EFFECT AN OPINION SURVEY. THIS MAKES SURE THAT THERE IS REAL QUALITY
RESIDENT CARE. I DON'T -- I THINK YOU'RE PROBABLY FANTASIZING ABOUT SOME
NURSING HOME THAT IS GOING TO BE ABLE TO SHORT-CHANGE ON -- ON
SPENDING FOR -- FOR RESIDENT CARE, BUT SOMEHOW MIRACULOUSLY, ALL -- ALL
THE RESIDENTS WILL BE HAPPY. I -- I FIND IT HARD TO --
MR. GOODELL: TO IMAGINE?
MR. GOTTFRIED: -- I FIND IT HARD TO BELIEVE THAT
THAT'S REALISTIC AND, BY THE WAY, WHAT I WOULDN'T WANT TO GIVE A NURSING
HOME IS A FINANCIAL INCENTIVE TO CHERRY-PICK PATIENTS THAT ARE HEALTHIER
THAN OTHERS AND NEED LESS CARE AND LEAVE THE PATIENTS WHO REQUIRE A
HIGH DEGREE OF CARE TO THE SUCKERS WHO HAVEN'T FIGURED OUT THAT GAME
YET. THAT'S NOT A WORLD WE WANT TO CREATE WHERE A NURSING HOME HAS
AN ENORMOUS INCENTIVE TO TURN PEOPLE AWAY WHO NEED CARE.
MR. GOODELL: THANK YOU, MR. GOTTFRIED.
ON THE BILL.
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NYS ASSEMBLY MARCH 9, 2021
MR. GOTTFRIED: YUP.
ACTING SPEAKER AUBRY: ON THE BILL, SIR.
MR. GOODELL: I CAN SAFELY SAY THAT EVERYONE IN
THE CHAMBER OR PARTICIPATING BY ZOOM WANTS TO HAVE THE HIGHEST
QUALITY NURSING CARE AVAILABLE TO ANYBODY, AND OUR FOCUS AND OUR
LEGISLATION SHOULD BE ON QUALITY, BUT THAT'S NOT WHAT THIS BILL DOES. THIS
IS AN ACCOUNTING BILL. THIS BILL DOESN'T FOCUS ON HOW HIGHLY RATED A
NURSING HOME IS, OR HOW HAPPY THE RESIDENTS ARE, OR HOW FEW
DEFICIENCIES, IF ANY. UNDER THIS BILL, IT'S ALL ACCOUNTING, IT'S
ACCOUNTANTS, NOT HEALTH CARE EXPERTS THAT DETERMINE WHETHER YOU
COMPLY WITH THIS BILL. THINK ABOUT THAT. YOU HAVE TO HAVE AN
ACCOUNTANT THAT UNDERSTANDS ACCRUAL COMPARED TO COST BASIS. YOU HAVE
TO HAVE AN ACCOUNTANT FIGURING OUT ALL THESE PERCENTAGES. AND THIS BILL
EXCLUDES SOME THINGS THAT ALL OF US I THINK WOULD AGREE ARE RELATED TO
QUALITY.
LET'S KEEP OUR FOCUS. OUR FOCUS IS NOT WHETHER YOU'RE
SPENDING 65 PERCENT ON ONE CATEGORY OR 72 PERCENT. IT'S NOT AN
ACCOUNTING ISSUE, IT'S A QUALITY ISSUE. AND WE WANT QUALITY. NOW I'LL
GIVE YOU A SPECIFIC EXAMPLE. IN MY COUNTY, WE OPERATE A COUNTY
NURSING HOME AND WE DECIDED WE WANTED TO UPGRADE THE FACILITY. AND
ALL THE RESIDENTS AND THE ADMINISTRATORS AND ALL THE HEALTH CARE EXPERTS
SAID, THESE ARE THE THINGS YOU NEED TO DO, YOU NEED TO MAKE
INVESTMENTS IN THE FACILITY, YOU NEED TO UPGRADE THE FACILITY. YOU NEED
TO IMPROVE THE QUALITY OF THE FOOD, YOU NEED TO IMPROVE THE KITCHEN
AND THE AIR CONDITIONING, AND THE AIR FILTRATION. AND GUESS WHAT? ALL
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THOSE EXPENSES WOULD BE EXCLUDED UNDER THIS BILL; IN FACT, MANY PEOPLE
START BY LOOKING AT THE QUALITY OF THE FACILITY ITSELF, IS IT RUN DOWN, DOES
IT NEED TO BE PAINTED AS THE WALLS CHIP, DOES IT SMELL? AND A LOT OF THAT
RELATES TO CAPITAL INVESTMENTS, BUT CAPITAL INVESTMENTS ARE ALL EXCLUDED
FROM THIS. IF YOU'VE GOT AN OLD, RUN DOWN FACILITY AND YOU DON'T HAVE
ANY DEBT, IT'S GOING TO BE EASIER FOR YOU TO COMPLY WITH THIS. WHY?
BECAUSE DEBT SERVICE IS EXCLUDED FROM THIS CALCULATION. BUT IF YOU
HAVE A BEAUTIFUL NEW FACILITY, STATE-OF-THE-ART, HIGHEST QUALITY CARE, BUT
YOUR DEBT PAYMENTS KICKED YOU OVER THESE FINANCIAL THRESHOLDS? IT
DOESN'T MATTER HOW LONG YOUR WAITING LIST IS, IT DOESN'T MATTER THAT YOU
HAVE ABSOLUTELY CLEAN INSPECTION REPORTS AND A 5-STAR RATING, IF YOU
DON'T MEET THESE FINANCIAL CALCULATIONS, YOU'RE SENDING MONEY TO THE
STATE OF NEW YORK. THINK ABOUT THAT. THE STATE OF NEW YORK, IN
ESSENCE THROUGH THIS BILL, IS IMPOSING A CIVIL PENALTY ON NURSING HOMES
BASED ON THEIR ACCOUNTING, EVEN THOUGH THEY MIGHT NOT HAVE ANY FINES.
AT LEAST WHEN IT COMES TO FINES WE HAVE CAPS. THIS HAS NO CAP.
BECAUSE THIS IS AN ACCOUNTING BILL AND NOT A HEALTH
CARE BILL, I WILL BE VOTING AGAINST IT AND RECOMMENDING MY COLLEAGUES
DO THE SAME. THANK YOU.
ACTING SPEAKER AUBRY: MR. MANKTELOW.
MR. MANKTELOW: THANK YOU, MR. SPEAKER.
WOULD THE SPONSOR YIELD FOR A COUPLE QUESTIONS?
ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
YOU YIELD?
MR. GOTTFRIED: YES.
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ACTING SPEAKER AUBRY: MR. GOTTFRIED YIELDS.
MR. MANKTELOW: THANK YOU, MR. SPEAKER, AND
THANK YOU, MR. GOTTFRIED. WE'VE TALKED ABOUT RESIDENT CARE HERE THIS
AFTERNOON, AND CAN YOU EXPLAIN TO ME AGAIN WHAT YOUR VIEW IS OF
RESIDENT CARE?
MR. GOTTFRIED: MY -- YOU WANT ME TO READ YOU
THE -- I MEAN, I CAN READ YOU THE DEFINITION IN THE BILL IF YOU LIKE.
MR. MANKTELOW: NO, NOT IN THE BILL. I WANT
YOUR, WHAT YOU THINK RESIDENT CARE IS.
MR. GOTTFRIED: I -- I THINK RESIDENT CARE IS WHAT'S
LISTED IN THE BILL. I'M MISSING -- MAYBE I'M NOT GETTING THE POINT OF
YOUR QUESTION.
MR. MANKTELOW: WELL, LIKE MY COLLEAGUE THAT
WAS JUST UP, HE'S TALKING ABOUT RESIDENT CARE AND WHAT'S IN RESIDENT
CARE, AND I KNOW, TOO, AS WELL SERVING AT THE COUNTY LEVEL --
MR. GOTTFRIED: OKAY. SEVERAL -- SEVERAL THINGS
THAT HE MENTIONED ARE INCLUDED IN THE STATUTORY DEFINITION, LIKE
SPENDING ON -- ON FOOD AND -- AND A LOT OF OTHER SERVICES.
MR. MANKTELOW: WELL, I KNOW THAT, AS I WAS
SAYING, SERVING AT THE COUNTY LEVEL, HAVING THE OPPORTUNITY TO BE ON THE
NURSING HOME COMMITTEE FOR NINE STRAIGHT YEARS, HAVING THE ABILITY TO
INTERACT WITH OUR NURSING HOME, LOOKING AT THE REAL NUMBERS, LOOKING AT
WHAT THE STAFFING IS LOOKING AT, WHAT RESIDENTS CONSIDER IMPORTANT TO
THEM, THIS GOES BACK TO RESIDENT CARE. AND AS MY OTHER COLLEAGUES
HAVE SAID THAT RESIDENT CARE JUST ISN'T ABOUT FOOD, IT JUST ISN'T ABOUT HOW
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MUCH MONEY YOU SPEND BACK ON THE INDIVIDUAL, IT'S ABOUT THE FACILITY.
DO YOU HAVE A POOL, DO YOU HAVE AN OUTDOOR PLACE TO GO, DO YOU HAVE
A PLACE WHERE THE RESIDENTS AND THE FAMILIES CAN GO AND SIT DOWN
TOGETHER OUTSIDE OR INSIDE. THAT'S ALL RESIDENT CARE. AND LOOKING AT
THESE NUMBERS IN THE 70 PERCENT AND 60 PERCENT, I JUST DON'T UNDERSTAND
WHERE THAT PERCENTAGE IS COMING FROM. AND A LITTLE EARLIER, MR.
GOTTFRIED, YOU TALKED ABOUT BETTER STAFF. CAN YOU EXPLAIN TO ME WHAT
BETTER STAFF IS?
MR. GOTTFRIED: WHAT I WAS REFERRING TO THERE
WAS REALLY MORE A QUESTION OF MAKING SURE YOU HAVE AN ADEQUATE
SUPPLY OF STAFF BUT, OBVIOUSLY, YOU WANT STAFF WHO ARE WELL-TRAINED AND
EXPERIENCED AS MUCH AS POSSIBLE.
MR. MANKTELOW: YEAH, ABSOLUTELY. AND WHAT
WE'RE SEEING HERE IN NEW YORK --
MR. GOTTFRIED: YEAH, AND -- AND, BY THE WAY,
YOU TALKED ABOUT HOW THE -- WHETHER THE FACILITY HAS A SWIMMING POOL.
THERE'S NOTHING HERE THAT SAYS THE FACILITY CAN'T SPEND MONEY ON A
SWIMMING POOL. THEY WOULD -- THEY WOULD GO INTO DEBT TO DO THAT AND
PAY DEBT SERVICE. THE DEBT SERVICE WOULD BE PART OF WHAT WOULD COME
OUT OF THE 30 PERCENT. THEY JUST CAN'T TAKE MONEY AWAY FROM FOOD AND
KEEPING THE BUILDING WARM AND NURSES TO TAKE CARE OF THE PATIENTS.
THEY CAN'T TAKE MONEY AWAY FROM THAT TO SPEND IT ON THE DEBT SERVICE
FOR THE SWIMMING POOL, THAT'S ALL.
MR. MANKTELOW: ABSOLUTELY. BUT I THINK THAT'S
A DECISION THAT -- THAT THE FACILITY NEEDS TO MAKE THEMSELVES. I DON'T
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THINK THE STATE SHOULD BE DICTATING EVERY LITTLE FINE ASPECT OF RUNNING A
NURSING HOME. SO BACK TO THE QUESTION OF BETTER STAFF, AGAIN, IN YOUR
EYES, WHAT IS BETTER STAFF? WHAT IS THAT TO YOU?
MR. GOTTFRIED: I'M SORRY, WHAT DID I LEAVE OUT
FROM MY ANSWER AS TO THE TERM "BETTER STAFF" THAT LEAVES YOU PUZZLED?
I TALKED ABOUT QUANTITY, I TALKED ABOUT QUALITY.
MR. MANKTELOW: OKAY, SO BETTER STAFF. DO YOU
KNOW WHAT WE'RE MISSING IN NEW YORK STATE RIGHT NOW?
MR. GOTTFRIED: BOTH. MANY OF OUR FACILITIES,
MAYBE EVEN THE VAST MAJORITY OF OUR FACILITIES, ARE UNDERSTAFFED AND
MANY OF THEM NEED MORE EXPERIENCED AND BETTER TRAINED STAFF.
MR. MANKTELOW: ABSOLUTELY, AND I AGREE WITH
YOU. THE -- THE ISSUE WE HAVE IN NEW YORK, NOT ONLY WITH OUR NURSING
HOMES BUT OUR -- OUR SENIOR LIVING FACILITIES, OUR HOSPITALS, IS THE FACT IS
THERE'S ONLY SO MANY NURSING STAFF TO GO AROUND, SO MANY AIDES TO GO
AROUND. AND ONE OF THE ISSUES WE HAVE IN NEW YORK STATE IS WE ARE
NOT -- MAYBE NOT THE HIGHEST, BUT ONE OF THE HIGHEST TAXED PER CAPITA IN
THE UNITED STATES AND PEOPLE ARE LEAVING NEW YORK STATE. AND FOR US
TO DO SAFE STAFFING AND FOR US TO DO BETTER STAFFING AND HAVING THE
INDIVIDUALS THERE TO CARE FOR THE RESIDENTS, WE HAVE GOT TO DO
SOMETHING AT THE STATE LEVEL TO HELP THESE NURSING HOMES TO BE ABLE TO
PAY MORE MONEY TO THESE INDIVIDUALS. AND UNTIL WE TAKE A HARD LOOK
AT THAT, WE CAN DO ALL THIS OTHER STUFF AND THAT'S JUST ICING ON -- ON -- I
WON'T USE THAT -- LIPSTICK ON A PIG. IT -- IT REALLY IS WHAT'S GOING ON OUT
THERE. AND --
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MR. GOTTFRIED: NO, IF --
MR. MANKTELOW: -- I -- I --
MR. GOTTFRIED: -- IF THAT'S A QUESTION -- IF THAT'S A
QUESTION, IF YOUR SUGGESTION IS THAT IF WE GAVE MULTIMILLIONAIRES AND
BILLIONAIRES THAT OWN NURSING HOMES A -- A LOWER STATE TAX BILL THEY
WOULD SPEND IT ON IMPROVING THE NURSING HOMES, I THINK THAT'S A
DANGEROUS FANTASY.
MR. MANKTELOW: OH, ABSOLUTELY NOT. WE -- WE
KNOW THAT'S NOT THE CASE AND -- AND THAT'S NOT HAPPENING OUT THERE.
SO I JUST -- JUST A -- JUST THE QUESTIONS ABOUT NURSING
HOMES AND AGAIN, LAST WEEK WE HAD A BILL THAT YOU PUT UP, I BELIEVE,
THAT DEALT WITH NURSING HOMES. AGAIN TODAY WE'RE DEALING WITH SEVERAL
BILLS ON THE FLOOR. YOU KNOW WHAT IS -- I GUESS, MR. GOTTFRIED, WHAT IS
YOUR -- YOUR END RESULT OF -- WITH ALL THESE BILLS ON THE NURSING HOMES?
WHERE DO YOU WANT TO SEE US GOING IN NEW YORK STATE? DO WE WANT
TO CONTINUE TO HELP OUR NURSING HOMES? DO WE WANT TO HELP BETTER
STAFF THEM? DO WE WANT TO GET RID OF THEM? I MEAN, REALLY WHAT IS THE
-- WHAT IS THE END GAME THAT YOU'RE TRYING TO DO HERE TO HELP ME BETTER
UNDERSTAND WHERE WE NEED TO GO?
MR. GOTTFRIED: I -- I WANT PEOPLE WHO ARE PUT IN
A NURSING HOME TO BE IN A FACILITY THAT IS RUN BY PEOPLE WHO ARE
MOTIVATED BY CARING FOR THEM AND WHO CARRY OUT THAT MOTIVATION BY
PUTTING THEIR MONEY WHERE THEIR MOTIVATION IS AND SPENDING THE MONEY
WE GIVE THEM ON PATIENT CARE AND NOT SIPHONING IT OFF THROUGH PAPER
CORPORATIONS AND OTHER GIMMICKS TO THEMSELVES OR THEIR FRIENDS.
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MR. MANKTELOW: SO THAT'S REALLY WHAT THIS IS
ABOUT, IS MAKING SURE THE -- THE MONEY DOESN'T GO TO FRIENDS, CORPORATE
PARTNERS, BOARD MEMBERS. IT'S MORE ABOUT STAYING AT THE NURSING
HOMES, CORRECT?
MR. GOTTFRIED: THAT'S A BIG PIECE OF IT, YEAH.
AND MAKING SURE THAT THE PEOPLE WHO OWN OUR NURSING HOMES ARE
PEOPLE WHOSE -- WHOSE HISTORY IS NOT ONE OF RUNNING HELLHOLES.
MR. MANKTELOW: SO --
MR. GOTTFRIED: YEAH.
MR. MANKTELOW: AS -- AS A STATE, AS LEGISLATORS
OF NEW YORK STATE, HOW MUCH DO WE WANT TO GET IN EVERYBODY'S
BUSINESS? DO WE WANT TO BE -- DO WE WANT TO BE IN EVERY LITTLE INTEGRAL
PART OF A NURSING HOME'S BUSINESS? AS NEW YORK STATE?
MR. GOTTFRIED: I ONLY WANT -- WANT THE STATE
INVOLVED IN THEIR BUSINESS ENOUGH TO MAKE SURE THAT WE ARE PROTECTING
THE PEOPLE WHO LIVE IN THEIR FACILITIES. AND THAT IS A -- TO ME, THAT IS
HIGH AN OBLIGATION FOR US IN THE LEGISLATURE AS YOU COULD IMAGINE. AND
IF THAT MEANS THAT A MULTIMILLIONAIRE WHO OWNS A NURSING HOME OH, MY
GOODNESS, HAS TO FIND AN ACCOUNTANT WHO UNDERSTANDS ACCRUAL
ACCOUNTING, THE NOTION THAT SOMEBODY WOULD SAY, OH, MY GOODNESS,
YOU'RE GOING TO MAKE THEM FIND AN ACCOUNTANT WHO UNDERSTANDS
ACCRUAL ACCOUNTING - WHICH IS THE STANDARD FOR GENERALLY-ACCEPTED
ACCOUNTING PRINCIPLES - AND WE'RE COMPLAINING THAT A NURSING HOME
MIGHT HAVE TO HIRE THE SERVICES OF AN ACCOUNTANT WHO UNDERSTANDS
ACCRUAL ACCOUNTING, THAT'S A HORRENDOUS BURDEN? GIVE ME A BREAK.
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MR. MANKTELOW: I -- I TOTALLY AGREE WITH YOU.
I'LL -- I'LL GIVE YOU THAT BREAK BECAUSE YOU'RE ABSOLUTELY RIGHT. THEY
SHOULD BE ABLE TO UNDERSTAND ACCRUAL VERSUS CASH -- CASH BASIS. BUT,
YOU KNOW, SO WE'RE HOLDING THESE NURSING HOMES AT SUCH A HIGH
STANDARD FROM A LOT OF THE ISSUES BROUGHT ON WITH THE PANDEMIC WITH --
WITH COVID-19 AND -- AND WHAT THEY'VE BEEN THROUGH. AND IT JUST
MAKES ME THINK ABOUT, YOU KNOW, WE'RE TARGETING -- TARGETING THEM
WITH SO MANY DIFFERENT BILLS AND RULES AND REGULATIONS. AND I -- I DON'T
SEE ONE BILL COME FORWARD YET THAT OFFERS UP HELP. NOT A FINE, BUT
ACTUALLY OFFERS UP EDUCATION TO HELP THESE NURSING HOMES BE BETTER AT
WHAT THEY DO. THAT WE SHOULD BE PROACTIVE INSTEAD OF REACTIVE OR
PROACTIVE INSTEAD OF NEGATIVE ABOUT THIS AND ALWAYS TALKING ABOUT FINES.
HOW MUCH ARE WE GOING TO FINE NEW YORK STATE FOR THE 15,000
RESIDENTS THAT DIED IN THE NURSING HOMES? HOW MUCH DO WE PAY BACK
TO THOSE FAMILIES THAT LOST THE LOVED ONES BECAUSE THIS ADMINISTRATION
MADE THE CHOICE TO SEND THOSE LOVED ONES WITH COVID BACK TO THE
NURSING HOMES AND COULDN'T DO A THING ABOUT IT? WE TALK ABOUT THE
NURSING HOMES BEING -- BEING NEGATIVE ABOUT DOING THINGS NOT THE RIGHT
WAY, BUT YET WE HAVE A STATE THAT CAUSED 15,000 DEATHS IN THOSE
NURSING HOMES. WHY ARE WE NOT HELPING THESE NURSING HOMES TO MAKE
THAT NEVER HAPPEN AGAIN? WHY ARE WE NOT DOING THINGS ON THIS FLOOR TO
MAKE SURE THAT THOSE FAMILIES ARE TAKEN CARE OF? THAT'S WHAT THIS IS ALL
ABOUT --
MR. GOTTFRIED: THAT'S A -- IF -- IF THAT'S A
QUESTION, FIRST OF ALL YOU'RE RAISING AN IMPORTANT BUT -- BUT COMPLETELY
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DIFFERENT QUESTION, NUMBER ONE. NUMBER TWO, 80 PERCENT OF NURSING
HOME BEDS ARE FILLED WITH PEOPLE WHO ARE ON MEDICAID --
MR. MANKTELOW: THAT'S CORRECT.
MR. GOTTFRIED: SO WE'RE -- WE'RE PAYING, THROUGH
MEDICAID, THE VAST BULK OF THESE NURSING HOMES' RESIDENTS. AND OF THE
20 PERCENT WHO ARE NOT ON MEDICAID, A HUGE CHUNK OF THEM ARE ON
MEDICARE. SO THE GOVERNMENT IS ALREADY PAYING NURSING HOMES ALMOST
EVERY DOLLAR THEY TAKE IN. AND WE HAVE BILLS ON -- WE'VE HAD BILLS ON
THE FLOOR THAT WE'VE PASSED THAT TALK ABOUT MAKING SURE THAT NURSING
HOMES AND THEIR STAFF UNDERSTAND INFECTION CONTROL AND THE LIKE. I DON'T
KNOW THAT -- I MEAN, I SUPPOSE SOMEBODY COULD MAKE A PROPOSAL THAT
WE SPEND EVEN MORE TAXPAYER MONEY THAN WE'RE ALREADY SPENDING ON
NURSING HOMES TO SET UP A SCHOOL FOR THEM ON HOW TO RUN A NURSING
HOME. IT WOULD BE AN INTERESTING IDEA, A SEPARATE BILL. BUT WE'VE GOT
PEOPLE -- TWO-THIRDS OF OUR NURSING HOMES ARE OWNED BY FOR-PROFIT
ENTITIES THAT LOOKED AT THE NURSING HOME AND SAID, YOU KNOW WHAT?
NOBODY'S FORCING ME TO PUT MY MONEY INTO A NURSING HOME. I'M DOING
IT CAUSE I CAN MAKE A LOT OF MONEY DOING THAT. WE USED TO HAVE A THIRD
OF OUR NURSING HOMES WERE FOR-PROFIT. IT'S NOW TWO-THIRDS. AND WHAT
THAT TELLS US IS THAT NURSING HOMES ARE -- CAN BE DARN GOOD BUSINESS FOR
A FOR-PROFIT OWNER, ESPECIALLY IF YOU HAVE LOW ENOUGH PERSONAL
STANDARDS. AND IT'S TIME THAT WE RAISE THOSE STANDARDS.
MR. MANKTELOW: ALL RIGHT. THANK YOU.
MR. GOTTFRIED: AND THAT'S -- THAT'S WHAT THIS BILL
DOES.
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MR. MANKTELOW: THANK YOU, MR. GOTTFRIED.
ON THE BILL, PLEASE.
ACTING SPEAKER AUBRY: ON THE BILL, SIR.
MR. MANKTELOW: THANK YOU, MR. SPEAKER. ON
THE BILL. I'M JUST SO AFRAID THAT WE'RE GOING DOWN A ROAD THAT WE MAY
NEVER BE ABLE TO COME BACK ON. AS WE CONTINUE TO PUT PRESSURE ON
EACH AND EVERY NURSING HOME, WHETHER IT'S PRIVATE, FOR-PROFIT,
NOT-FOR-PROFIT, WE ARE PUTTING AN UNDUE AMOUNT OF STRESS ON THESE
INDIVIDUALS, THESE FACILITIES, ESPECIALLY COMING OUT OF THE COVID
PANDEMIC. WE'RE STILL IN IT. DO WE REALLY KNOW WHAT THEY'RE UP
AGAINST FINANCIALLY? AND WE'RE PUTTING MORE PRESSURE ON THEM. AND
I'VE SEEN FIRSTHAND WHAT GOOD FACILITIES CAN DO AND WHAT BAD FACILITIES
CAN DO. AND AGAIN, WE SHOULD BE HELPING ALL THE FACILITIES, AND IF WE
CAN'T -- IF THEY CAN'T MAKE IT, THEN WE NEED TO MAKE SOME CHANGES. BUT
AT THE SAME TIME, WE CANNOT HURT THE PEOPLE THAT ARE DOING A REALLY,
REALLY GOOD JOB. BECAUSE I'M CONCERNED THAT THERE'S GOING TO COME A
POINT IN TIME WHEN PEOPLE ARE GOING TO SAY, ENOUGH IS ENOUGH. AND IF
WE CAN'T MAKE A LIVING HERE, IF WE CAN'T HELP OUR EMPLOYEES, WELL,
WE'RE GOING TO LEAVE THE STATE. AND -- AND I WANT TO KNOW WHERE EACH
AND EVERY ONE OF THOSE RESIDENTS IN THAT NURSING HOME ARE GOING TO GO.
SO I CANNOT SUPPORT THIS BILL. AND AGAIN, I THANK THE
SPONSOR FOR THE TIME. AND THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: MR. STIRPE.
MR. STIRPE: THANK YOU, MR. SPEAKER. WILL THE
SPONSOR YIELD FOR A QUESTION?
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ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
YOU YIELD?
MR. GOTTFRIED: YES, INDEED.
ACTING SPEAKER AUBRY: MR. GOTTFRIED YIELDS,
SIR.
MR. STIRPE: THANK YOU. TO SORT OF ANSWER THIS
RECURRING QUESTION OF WHERE DID THE 70 PERCENT COME FROM, LET ME ASK
YOU THIS: DIDN'T WE LOOK AT DATA ACROSS THE STATE OF ALL THE NURSING
HOMES IN NEW YORK STATE AND COME UP WITH A COUPLE OF FACTS? ON
AVERAGE, THE NOT-FOR-PROFIT NURSING HOMES PROVIDED A HIGHER LEVEL OF
CARE THAN THE FOR-PROFIT ONES. AND, TWO, DIDN'T WE LOOK AT HOW MUCH
DO THEY SPEND FOR THIS BETTER QUALITY CARE, YOU KNOW, OF THEIR BUDGET? I
MEAN, DIDN'T WE LOOK AT ANY OF THAT?
MR. GOTTFRIED: WELL, YOU'RE -- YOU'RE ABSOLUTELY
RIGHT. YOU KNOW, ANOTHER WORD FOR IT IS THAT YEAH, THIS IS ACTUALLY
EVIDENCE-BASED LEGISLATION.
MR. STIRPE: THERE YOU GO.
MR. GOTTFRIED: WE LOOKED AT THE SPENDING ON --
ON THESE PIECES OF -- OF A NURSING HOME'S BUDGET, AND THERE ARE A LOT OF
NURSING HOMES THAT SPEND A LOT MORE THAN 70 PERCENT ON WHAT THIS BILL
CALLS FOR. THEY'RE THE BETTER NURSING HOMES. AND THE REALLY BAD
NURSING HOMES THAT YOU AND YOUR FAMILY, YOU WOULDN'T WANT THEM
ANYWHERE NEAR, YEAH, THEY'RE THE ONES THAT SPEND A WHOLE LOT LESS. AND
YES, THE -- THERE ARE NURSING HOMES WITH HIGHER QUALITY AND LOWER
QUALITY, AND THAT CERTAINLY TENDS TO CORRELATE WITH WHETHER THEY'RE
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FOR-PROFIT AND HOW MUCH THEY SPEND ON RESIDENT CARE. AND NONE OF
THAT SHOULDN'T SURPRISE ANYBODY.
MR. STIRPE: RIGHT. SO IT'S REALLY -- BASED ON ALL THE
EVIDENCE, WE DON'T SEE MANY NURSING HOMES THAT SPEND 20 PERCENT OF
THEIR BUDGET ON -- ON DIRECT CARE, EVEN IF THEY HAVE A SWIMMING POOL,
THAT ARE PROVIDING GREAT SERVICE FOR THEIR RESIDENTS. I MEAN I WOULD
ASSUME THAT ANYWAY.
MR. GOTTFRIED: WELL, I -- I THINK YOU'RE
ABSOLUTELY RIGHT. AND THIS LEGISLATION AND -- AND OTHERS THAT WE'VE
CONSIDERED ARE -- ARE ROOTED IN -- IN REAL WORLD EXPERIENCE. IN MANY
CASES VERY UNFORTUNATE REAL WORLD EXPERIENCE. IT'S NOT JUST MADE UP OUT
OF SOMEBODY'S FANTASIES. WE'RE TALKING ABOUT REAL EXPERIENCE HERE.
MR. STIRPE: WELL, THANK YOU VERY MUCH. I -- I
APPRECIATE ALL THE WORK YOU'VE DONE DEVISING THIS BILL AND I LOOK
FORWARD TO ITS PASSING. THANK YOU.
MR. GOTTFRIED: THANK YOU.
ACTING SPEAKER AUBRY: THANK YOU, SIR.
MR. LAWLER.
MR. LAWLER: THANK YOU, MR. SPEAKER. WILL THE
SPONSOR YIELD?
ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
YOU YIELD?
MR. GOTTFRIED: YES.
MR. LAWLER: THANK YOU, SIR. SO, FOR THE 70
PERCENT OF -- OF ITS TOTAL OPERATING REVENUE ON -- ON RESIDENT CARE, DOES
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THIS APPLY TO ALL THREE TYPES OF NURSING HOMES, FOR-PROFIT, NON-PROFIT
AND GOVERNMENT-RUN?
MR. GOTTFRIED: YES.
MR. LAWLER: OKAY. SO IN TERMS OF A FOR-PROFIT I
GENERALLY WOULD UNDERSTAND HOW YOU GET THERE. HOW -- CAN YOU
EXPLAIN TO ME HOW THE70 PERCENT IS GOING TO APPLY TO THE -- THE
GOVERNMENT-RUN FACILITIES AND HOW THAT WORKS?
MR. GOTTFRIED: WELL, I'M NOT QUITE SURE WHAT
YOU MEAN BY "HOW." THE ARITHMETIC IS -- THE PROCESS IS -- IS THE SAME.
AND I DON'T THINK -- I HOPE NOBODY THINKS THAT A -- THAT A
GOVERNMENT-RUN NURSING HOME OUGHT TO BE HELD TO A LOWER STANDARD.
MR. LAWLER: NO, I'M -- I'M -- I'M CURIOUS JUST
HOW WE'RE GOING TO -- HOW WE FUND IT. FOR INSTANCE, YOU KNOW,
GENERALLY SPEAKING, WITH LABOR COSTS ON -- ON THE GOVERNMENT SIDE,
CERTAINLY, YOU KNOW, WE TEND TO SEE THAT GO INCREMENTALLY UP. SO I'M
CURIOUS HOW WE'RE GOING TO MAINTAIN THE 70 PERCENT RATIO IN TERMS OF --
OF RESIDENT CARE. ARE WE -- ARE WE INTENDING EVERY YEAR TO INCREASE THE
BUDGET FOR GOVERNMENT-RUN NURSING HOMES AT THE SAME RATIO THAT, LET'S
SAY, LABOR COSTS RISE?
MR. GOTTFRIED: WELL, WITH ONE OR TWO
EXCEPTIONS NEW YORK STATE DOES NOT, YOU KNOW, DIRECTLY FUND A
NURSING HOME. WE -- OTHER THAN THROUGH THE MEDICAID PROGRAM. AND
THE MEDICAID PROGRAM IS A COMPLEX SYSTEM FOR HOW MUCH IT -- HOW IT
DECIDES WHAT TO -- TO PAY A NURSING HOME. GENERALLY NOT ENOUGH. BUT
THAT'S A DIFFERENT TOPIC. SO IT'S A -- I -- I -- I DON'T THINK THE QUESTION OF
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A PUBLIC NURSING HOME IS A -- IS THAT DIFFERENT A QUESTION. AND ALMOST
ALL PUBLIC NURSING HOMES ARE -- ARE COUNTY, NOT STATE. AND YEAH, THEY
CERTAINLY OUGHT TO BE HELD TO -- TO THE SAME STANDARD. I -- I DON'T THINK
ANY -- ANYONE SHOULD ARGUE THAT THEY SHOULD BE LET OFF THE HOOK OR HELD
TO A LOWER STANDARD. YOU COULD MAKE A CASE THAT THEY SHOULD BE HELD
TO A HIGHER STANDARD, BUT WE'RE NOT ARGUING THAT TODAY.
MR. LAWLER: OKAY. SO IF -- IF A GOVERNMENT-RUN
HEALTHCARE -- A NURSING HOME FACILITY DOES NOT MEET THE 70 PERCENT
THRESHOLD OR THE 60 PERCENT REQUIREMENT ON DIRECT CARE, WHAT IS -- WHAT
IS THE PENALTY ON THAT? HOW -- HOW ARE WE HANDLING THAT?
MR. GOTTFRIED: THE SAME WAY FOR ANY OTHER
NURSING HOME. THE HEALTH DEPARTMENT WOULD EITHER TAKE THE MONEY
BACK OUT OF THEIR NEXT YEAR'S MEDICAID PAYMENTS OR FUTURE MEDICAID
PAYMENTS OR SUE THEM.
MR. LAWLER: OKAY. AND --
MR. GOTTFRIED: OR SOME COMBINATION.
MR. LAWLER: AND IN A PREVIOUS BILL THAT WE
PASSED LAST WEEK WE PUT A CAP ON THE NUMBER OF NEW FOR-PROFIT
FACILITIES, CORRECT?
MR. GOTTFRIED: THAT IS CORRECT.
MR. LAWLER: OKAY. SO THEORETICALLY, DOWN --
DOWN THE ROAD HERE, THE NUMBER OF FOR-PROFIT FACILITIES -- AND -- AND
YOU AND I HAD THIS DISCUSSION -- YOU ARE HOPEFUL IN THE FUTURE -- AND
CORRECT ME IF I'M PUTTING WORDS IN YOUR MOUTH, BUT I THINK YOU ARE
HOPEFUL FOR THE FUTURE THAT THE NUMBER OF FOR-PROFIT FACILITIES WILL
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DECLINE, CORRECT?
MR. GOTTFRIED: YEAH. AND -- AND I THINK IF WE --
IF WE ARE SUCCESSFUL IN TELLING FOR-PROFIT OWNERS THAT, YOU'RE ACTUALLY
GOING TO HAVE TO SPEND MONEY ON RESIDENT CARE AND POCKET LESS THAN
YOU THOUGHT YOU WERE GOING TO, THAT SOME OF THOSE OWNERS THAT WERE
ONLY INTERESTED IN POCKETING A LOT OF MONEY WILL SEE THE WISDOM OF
TURNING THEIR FACILITY BACK OVER TO A NOT-FOR-PROFIT OPERATOR. I WOULD
CERTAINLY LOVE TO SEE THAT HAPPEN.
MR. LAWLER: OKAY. SO LET'S PUT ASIDE NON-PROFIT
FOR A SECOND. WOULD IT BE YOUR HOPE THAT MORE GOVERNMENT-RUN
FACILITIES, OBVIOUSLY SOME COMBINATION WITH NON-PROFIT, BUT WOULD YOU
LIKE TO SEE AN INCREASE IN THE NUMBER OF GOVERNMENT-RUN FACILITIES?
MR. GOTTFRIED: NOT NECESSARILY. YOU KNOW, OUR
-- OUR HEALTHCARE SYSTEM IS -- IN NEW YORK IS OVERWHELMINGLY
OPERATED, AT LEAST ON THE INSTITUTIONAL SIDE. LIKE EVERY HOSPITAL IN NEW
YORK STATE NOW IS EITHER NON-PROFIT OR -- OR -- OR GOVERNMENT -- I DON'T
KNOW IF ANYBODY'S IN THE BUSINESS OF CREATING NEW PUBLICLY-OWNED
HOSPITALS IN NEW YORK. SO I -- I THINK THE NOT-FOR-PROFIT MODEL WORKS
PRETTY WELL, PARTICULARLY WHEN THERE'S APPROPRIATE REGULATION. I DON'T
THINK WE SHOULD BE -- I MEAN, I DON'T HAVE AN INTEREST IN PUSHING
COUNTIES INTO OPENING UP MORE COUNTY-OWNED NURSING HOMES, ALTHOUGH
IF -- IF THAT MAKES SENSE TO A PARTICULAR COUNTY, I'D -- I'D -- I'D WISH
THEM WELL IN THAT AND TRY TO HELP. SO I DON'T -- I DON'T THINK IT'S
SOMETHING WHERE I HAVE AN OPINION THAT I WANT MORE OF THIS OR MORE OF
THAT.
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MR. LAWLER: OKAY. IN TERMS OF GETTING BACK TO
THE -- THE 70 PERCENT OF TOTAL OPERATING REVENUE BEING DEDICATED ON --
ON RESIDENT CARE, AM I CORRECT IN ASSUMING THAT IF OTHER COSTS CONTINUE
TO RISE FOR THE FACILITY, WHETHER IT'S A GOVERNMENT-RUN OR A NON-PROFIT,
THAT THEY WILL HAVE TO FIND WAYS TO GET REVENUE TO MEET THAT 70 PERCENT
REQUIREMENT?
MR. GOTTFRIED: WELL -- WELL, IF COSTS ARE RISING,
CHANCES ARE WHAT THEY ARE SPENDING ON WHAT THE BILL CONSIDERS RESIDENT
CARE WOULD ALSO BE RISING AND SO THEY WOULD CONTINUE TO BE -- IF THEY'RE
MEETING THE 70 PERCENT TODAY, THEY WOULD CONTINUE TO MEET THE 70
PERCENT IN THE FUTURE. NOW, IF -- IF YOU'RE SAYING IF -- IF COSTS FOR
NURSING HOMES RISE, YOU KNOW, FOR A WHOLE VARIETY OF THEIR LEGITIMATE
COST ITEMS ACROSS THE BOARD, SINCE ALMOST ALL OF THEIR INCOME COMES
FROM MEDICAID AND MEDICARE, WILL THAT INCREASE PRESSURE ON MEDICAID
AND MEDICARE TO MORE PROPERLY FUND OUR NURSING HOMES? WHETHER THIS
BILL PASSES OR NOT, THAT WILL BE TRUE.
MR. LAWLER: OKAY.
MR. GOTTFRIED: AND I WOULD CERTAINLY WANT US TO
MEET THAT RESPONSIBILITY.
MR. LAWLER: I GUESS --
MR. GOTTFRIED: JUST LIKE IF -- IF, YOU KNOW, IF -- IF
INFLATION DRIVES UP THE COST OF OUR ELEMENTARY AND SECONDARY SCHOOLS,
WE WANT THE STATE AND LOCAL GOVERNMENTS TO MEET THOSE COSTS AS WELL.
AND WHAT'S GOOD FOR, YOU KNOW, THE -- A PRINCIPLE THAT'S GOOD FOR
SCHOOL AID OR PAVING OUR HIGHWAYS OUGHT TO BE GOOD FOR TAKING CARE OF
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OUR NURSING HOME RESIDENTS, TOO.
MR. LAWLER: I GUESS WHAT I'M GETTING AT IS, YOU
KNOW, BASED ON PREVIOUS DEBATE AND CONVERSATION AND -- AND REITERATED
IN THIS CONVERSATION, IT -- IT ULTIMATELY IS YOUR OBJECTIVE TO GET -- TO GET
RID OF FOR-PROFIT NURSING HOMES IN THE STATE OF NEW YORK AND INSTEAD
HAVE A MODEL MOSTLY NON-PROFIT, SOME GOVERNMENT. IF YOU'RE SAYING --
MR. GOTTFRIED: WELL, I WOULDN'T -- I WOULDN'T SAY
MY GOAL IS -- I WOULDN'T PHRASE IT AS -- AS GETTING RID OF THEM. I THINK --
I THINK WE ARE OVERLY DEPENDENT ON FOR-PROFIT FACILITIES, NUMBER ONE.
AND NUMBER TWO, THE REASON WE HAVE SO MANY FOR-PROFIT FACILITIES IS --
IS BECAUSE OF CONDITIONS AND PHENOMENA THAT I THINK ARE VERY
TROUBLING, AND WE SHOULD BE REVERSING THOSE CONDITIONS. AND I THINK
THE RESULT OF THAT WILL BE THAT PEOPLE WHO WANT TO OWN A NURSING HOME
JUST TO MAKE MONEY WILL FIND SOME OTHER PLACE TO INVEST THEIR MONEY.
MR. LAWLER: YES, 49 OTHER STATES. I THINK WHEN
WE --
MR. GOTTFRIED: WELL, YOU KNOW, IF -- IF THEY BUY
MORE NURSING HOMES IN OTHER STATES, I FEEL SORRY FOR THE NURSING HOME
RESIDENTS IN THOSE OTHER STATES. MAYBE THEY'LL BUY -- YOU KNOW, IF -- IF
THEY GO TO NEW JERSEY THEY'RE GOING TO FIND A 90 PERCENT SPENDING
REQUIREMENT. AND THERE ARE ANY -- THERE ARE A ZILLION WAYS TO INVEST
YOUR -- YOUR -- YOUR HUNDREDS OF MILLIONS OF DOLLARS IN AMERICA. YOU
DON'T HAVE TO PUT IT IN A -- IN A NURSING HOME WHERE THE PROFIT COMES
FROM DEPRIVING PEOPLE OF QUALITY CARE.
MR. LAWLER: SO -- OKAY. SO ULTIMATELY, THOUGH, IF
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WE GO TO A MODEL THAT IS MORE RELIANT ON GOVERNMENT-RUN HEALTHCARE
AND NURSING HOMES AND -- AND NON-PROFIT NURSING HOMES, I JUST WANT TO
DRILL DOWN ON -- ON THE GOVERNMENT-RUN FOR A SECOND. DO YOU AGREE
THAT THE -- THE COST OF THE MEDICAID PROGRAM WILL INCREASE UNDER A
MODEL THAT IS LESS RELIANT ON FOR-PROFIT NURSING HOMES AND MORE RELIANT
ON GOVERNMENT-RUN AND -- AND SOME LEVEL OF NON-PROFIT?
MR. GOTTFRIED: I -- I DON'T UNDERSTAND THE LOGIC
OF THAT AT ALL. IF MEDICAID IS PAYING FOR NURSES INSTEAD OF PAYING FOR
NURSES AND MILLIONAIRES' PROFITS, I DON'T THINK THE LATTER IS GOOD FOR
MEDICAID. I'D RATHER MEDICAID ISN'T PAYING SOME OF ITS MONEY FOR
OWNERS' PROFITS.
MR. LAWLER: OKAY.
ON THE BILL.
ACTING SPEAKER AUBRY: ON THE BILL, SIR.
MR. LAWLER: THANK YOU. I THINK -- I -- I
APPRECIATE WHAT THE SPONSOR IS TRYING TO -- TO FOCUS ON. AND -- AND
NONE OF US WANT ANYONE WHO IS IN A NURSING HOME TO BE IN A SITUATION
WHERE THEY ARE NOT RECEIVING THE PROPER CARE. AND ALL OF US, ESPECIALLY
IN LIGHT OF WHAT HAS OCCURRED THIS YEAR, WANT TO MAKE SURE THAT THEY
ARE, IN FACT, RECEIVING THE BEST CARE THAT -- THAT THEY CAN, REGARDLESS OF
THEIR WEALTH OR THEIR ABILITY TO -- TO PAY FOR IT. I THINK WE ARE AT A POINT
IN OUR STATE, THOUGH, WHERE THERE IS REALLY A PUSH IN THIS -- IN THIS
CHAMBER AND DOWN THE HALL TO DRIVE BUSINESSES OUT OF THIS STATE. AND
THE IDEA THAT IF YOU MAKE A PROFIT YOU ARE SOMEHOW EVIL. YOU ARE
SOMEHOW NOT GOOD FOR THE STATE OF NEW YORK. AND WHEN I -- WHEN I
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LOOK AT SOME OF THE BILLS, INCLUDING THIS ONE, IT SEEMS THAT THE PUSH IS
REALLY TO -- TO PUT EVERY RESTRICTION ON THE ABILITY OF ANYONE TO MAKE
MONEY IN THIS STATE. AND IT'S GOING TO HAVE TWO MAJOR CONSEQUENCES:
PEOPLE WILL LEAVE THE STATE IN DROVES, AS THEY HAVE OVER THE LAST
DECADE. WE'VE LOT OVER 1.2 MILLION PEOPLE FOR A REASON. AND
BUSINESSES WILL RELOCATE. AS I SAID, THERE'S 49 OTHER STATES THAT PEOPLE
CAN INVEST THEIR -- THEIR MONEY IN. AND IF WE WANT TO GO DOWN THAT
ROAD, JUST UNDERSTAND THE CONSEQUENCE OF IT. THE CONSEQUENCE OF IT IS A
FACILITY THAT WAS FOR-PROFIT THAT WAS PAYING TAXES BECOMES NON-PROFIT OR
GOVERNMENT-OWNED IS NO LONGER PAYING TAXES. WELL, WHAT DOES THAT
MEAN TO A LOCAL MUNICIPALITY? IT MEANS THAT THEY LOST TAX REVENUE. IT
MEANS THAT THEY HAVE TO RAISE TAXES ELSEWHERE. IT'S NOT JUST THIS
PARTICULAR BILL, IT IS -- IT IS THIS APPROACH THAT WE HAVE IN THIS BODY TO
TRY AND RESTRICT THE ABILITY OF PEOPLE TO OWN AND OPERATE A BUSINESS.
THERE ARE PLENTY OF REFORMS THAT WE CAN PUT IN PLACE TO ENSURE THAT
PEOPLE ARE RECEIVING GREAT QUALITY HEALTHCARE. AND AFFORDABLE
HEALTHCARE. BUT TRYING TO RUN BUSINESSES OUT OF OUR STATE IS -- IS
CERTAINLY NOT A WAY TO DO IT, AND CERTAINLY NOT A WAY TO ENSURE THAT WE
HAVE THE RESOURCES FROM A GOVERNMENTAL LEVEL TO PAY FOR ALL OF THESE
PROGRAMS THAT WE WANT TO. WE HAVE THE MOST EXPANSIVE MEDICAID
PROGRAM IN THE -- IN THE COUNTRY IN THE STATE OF NEW YORK. WE PAY 49
PERCENT MORE THAN THE AVERAGE OF THE OTHER 49 STATES. IT'S NOT A
FUNCTION OF NOT SPENDING MONEY, IT'S HOW WE SPEND IT. WE ARE FORCING
MUNICIPALITIES TO PAY A QUARTER OF THE COST OF THE MEDICAID PROGRAM.
WELL, WHEN YOU TAKE AWAY TAX REVENUE FROM THEM, IT MAKES IT A LOT
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HARDER TO PAY FOR THAT 25 PERCENT.
SO I WILL NOT BE VOTING IN FAVOR OF THIS BILL AND I URGE
MY COLLEAGUES NOT TO AS WELL. THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: MR. SALKA.
MR. SALKA: MR. SPEAKER.
ACTING SPEAKER AUBRY: YES, SIR.
MR. SALKA: WILL THE SPONSOR YIELD FOR A QUESTION
OR TWO?
ACTING SPEAKER AUBRY: MR. GOTTFRIED, WILL
YOU YIELD?
MR. GOTTFRIED: YES.
ACTING SPEAKER AUBRY: MR. GOTTFRIED YIELDS,
SIR.
MR. SALKA: THANK YOU, CHAIRMAN. JUST -- I'M A
LITTLE VAGUE ON -- IN THE BILL, LINES 38 THROUGH 41 STATE THE
COMMISSIONER SHALL MAKE REGULATIONS, MAKE MEDICAL ASSISTANCE, STATE
PLAN AMENDMENTS, SEEK WAIVERS FROM THE FEDERAL CENTERS FOR MEDICAID
-- MEDICARE AND MEDICAID SERVICES AND TAKE OTHER ACTIONS REASONABLY
NECESSARY TO IMPLEMENT THIS SECTION. MR. GOTTFRIED, COULD YOU JUST
BRIEFLY ELABORATE ON WHAT MAYBE SOME OF THOSE AMENDMENTS MIGHT BE
OR WHAT WAIVERS THAT WOULD BE SOUGHT TO COMPLY WITH THE -- THE
PARTICULARS OF THIS BILL?
MR. GOTTFRIED: WELL, FIRST OF ALL, THAT -- THAT IS
BOILERPLATE LANGUAGE THAT WE PUT INTO LEGISLATION THAT -- THAT, YOU KNOW,
IN ANY WAY BUMPS INTO THE MEDICAID PROGRAM. AND SINCE THESE
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FACILITIES ARE OVERWHELMINGLY FUNDED BY MEDICAID, IT SEEMED TO BE
PRUDENT TO PUT THAT IN THERE. ALSO WE TALK ABOUT RECOUPING OR
DEDUCTING AMOUNTS FROM A FACILITY'S MEDICAID PAYMENT. IT WOULD -- IT
MAY WELL BE APPROPRIATE TO CHECK IN WITH -- WITH THE MEDICAID
PROGRAM TO MAKE SURE THAT THEY DON'T HAVE A PROBLEM WITH THAT. AT THE
VERY LEAST WE WOULD PROBABLY NEED TO PUT A STATE PLAN AMENDMENT INTO
OUR MEDICAID PLAN SAYING THAT THAT'S WHAT WE DO. BUT SHORT ANSWER IS,
THIS IS -- THIS IS ROUTINE BOILERPLATE.
MR. SALKA: SO THIS COULD NOT BE CONSIDERED OR
COULD BE CONSIDERED A DE FACTO PENALTY IF, IN FACT, THE NURSING HOME
DOESN'T COMPLY WITH THIS? OR WOULD THAT BE A POSSIBILITY, THAT -- THAT
MEDICARE AND MEDICAID REIMBURSEMENT WOULD BE HELD BACK IF, IN FACT,
THE NURSING HOME WAS FOUND OUT OF COMPLIANCE?
MR. GOTTFRIED: I'M -- I'M NOT QUITE SURE I
UNDERSTAND YOUR QUESTION. WE WOULD -- WE WOULD BE TELLING THE
NURSING HOME, IF WE GAVE YOU A DOLLAR ON THE UNDERSTANDING THAT YOU
WERE GOING TO SPEND 70 CENTS OF IT ON -- ON RESIDENT CARE AND YOU ONLY
SPENT 60 CENTS ON REVENUE CARE, WE WANT 10 CENTS BACK. BECAUSE WE
GAVE IT TO YOU FOR A PURPOSE AND YOU DIDN'T USE IT FOR THAT PURPOSE.
GIVE IT BACK TO US. I THINK IT'S A PERFECTLY SENSIBLE THING TO SAY. IT -- IT
DOES MAKE SENSE TO PUT IN LANGUAGE TO MAKE SURE THAT WE -- THAT WE
CHECK IN WITH THE FEDERAL GOVERNMENT TO MAKE SURE THEY'RE NOT GOING
TO BE UPSET ABOUT THAT.
MR. SALKA: OKAY. ALL RIGHT. WELL, THANK YOU.
THANK YOU FOR THE EXPLANATION, MR. GOTTFRIED.
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ACTING SPEAKER AUBRY: READ THE LAST SECTION.
THE CLERK: THIS ACT SHALL TAKE EFFECT IMMEDIATELY.
ACTING SPEAKER AUBRY: THE CLERK WILL RECORD
THE VOTE ON ASSEMBLY PRINT 5685-A. THIS IS A PARTY VOTE. ANY
MEMBER WHO WISHES TO BE RECORDED AS AN EXCEPTION TO THEIR
CONFERENCE POSITION IS REMINDED TO CONTACT THE MAJORITY OR MINORITY
LEADER AT THE NUMBERS PREVIOUSLY PROVIDED.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. THE REPUBLICAN
CONFERENCE WILL GENERALLY BE VOTING AGAINST THIS LEGISLATION, WHICH IS
RULES REPORT NO. 38, A.5685-A. IF THERE'S ANY MEMBER THAT WOULD
LIKE TO VOTE IN FAVOR OF IT, PLEASE CONTACT THE MINORITY LEADER'S OFFICE.
THANK YOU, SIR.
ACTING SPEAKER AUBRY: MS. HYNDMAN.
MS. HYNDMAN: I WOULD LIKE TO REMIND MY
COLLEAGUES THAT THIS A -- A PARTY VOTE. MAJORITY MEMBERS WILL BE
RECORDED IN THE AFFIRMATIVE. IF THERE ARE ANY EXCEPTIONS, I ASK MAJORITY
MEMBERS TO CONTACT THE MAJORITY LEADER'S OFFICE AT THE NUMBER
PREVIOUSLY PROVIDED.
(THE CLERK RECORDED THE VOTE.)
ACTING SPEAKER AUBRY: THANK YOU.
TO EXPLAIN HIS VOTE, MR. OTIS.
MR. OTIS: THANK YOU, MR. SPEAKER, AND THANK YOU
CHAIRMAN GOTTFRIED. I'M GOING TO SUPPORT THIS BILL BECAUSE I THINK THAT
THE PURPOSE IS -- IS SOMETHING THAT WE NEED TO ADDRESS TO MAKE SURE
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THAT ALL PATIENTS IN NEW YORK STATE ARE GETTING QUALITY CARE AND QUALITY
PERSONAL CARE. BUT I AM GOING TO REQUEST THAT AS DETAILS ARE WORKED OUT
ON THIS BILL WITH THE OTHER HOUSE AND WITH THE EXECUTIVE BRANCH THAT
WE LOOK TO FINE TUNE SOME OF THE PROVISIONS OF THIS BILL BECAUSE MY --
MY FEAR IS THAT THERE ARE SOME INSTITUTIONS THAT ARE PROVIDING EXCELLENT
PERSONAL CARE THAT CAN BE QUANTIFIED, BUT IT NOT MAY NOT MEET THESE
RATIO METRICS BECAUSE THEY SPEND A LOT OF MONEY ON OTHER QUALITY OF LIFE
ISSUES AT THEIR FACILITIES, WHETHER THEY BE CAPITAL OR -- OR OTHER SORTS OF
THINGS. AND THERE ARE OTHER KINDS OF BUDGETARY OUTLIERS THAT IN
INDIVIDUAL CASES NEED TO BE ADDRESSED. SO IF THERE CAN BE SOME
LANGUAGE TO PROVIDE FOR EXCEPTIONS OR TO DEAL WITH THOSE SPECIAL
CIRCUMSTANCES, AT THE SAME TIME MAKING SURE THAT QUALITY CARE IS
PROVIDED, THAT WOULD BE MY REQUEST.
BUT I VOTE IN THE AFFIRMATIVE AND THANK THE SPONSOR FOR
HIS LEADERSHIP ON THIS ISSUE. I VOTE AYE.
ACTING SPEAKER AUBRY: MR. OTIS IN THE
AFFIRMATIVE.
MR. DURSO.
MR. DURSO: THANK YOU, MR. SPEAKER. I JUST
WANTED TO RISE TO EXPLAIN MY VOTE. I KNOW THIS BILL IS NOT PERFECT, NOT
BY ANY STRETCH. AS -- AS MY COLLEAGUE THAT JUST SPOKE BEFORE ME, I
HOPE THAT IN THE FUTURE SOME OF THESE RATIOS AND -- AND THESE -- THE
IMPLEMENTATION OF THIS BILL CAN BE RE-LOOKED AT AND MAYBE AMENDED TO
MAKE SURE THAT THE FACILITIES THAT ARE DOING THE RIGHT THING DON'T GET
PUNISHED OR PENALIZED IN THAT REGARD. AND I UNDERSTAND THE CONCERNS
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OF EVERYONE ON BOTH SIDES OF THIS ISSUE. BUT I COSPONSORED THIS BILL
BECAUSE I BELIEVE IT'S -- IT'S WHAT'S RIGHT. IT'S WHAT'S DOING RIGHT FOR THE
PEOPLE IN THE NURSING HOMES THAT WE'RE SUPPOSED TO BE TAKING CARE OF.
THE INTENTION OF THIS BILL, I BELIEVE, IS TO ENSURE THE PROPER CARE FOR THE
PEOPLE IN THESE NURSING HOMES AND IN THESE FACILITIES. THEY'RE THE MOST
VULNERABLE POPULATION. WE NOW KNOW THAT. AND WITH EVERYTHING
THAT'S GONE ON OVER THE PAST YEAR, IT'S -- IT'S A GROUP OF PEOPLE THAT WE
REALLY NEED TO LOOK AFTER AND TAKE CARE OF. ALSO, TO MAKE SURE THAT OUR
LOVED ONES HAVE THE BEST CARE POSSIBLE, TAKE CARE OF -- TAKEN CARE OF
PROPERLY BY PROPERLY-TRAINED PEOPLE, PROPERLY-STAFFED FACILITIES AND
PROPERLY-PAID PEOPLE IN THOSE FACILITIES TO TAKE CARE OF OUR LOVED ONES.
IT'S FOR THOSE REASONS, MR. SPEAKER, AND I DO THANK THE
SPONSOR FOR THIS BILL AND I'LL BE VOTING IN THE AFFIRMATIVE AND DO HOPE IN
THE FUTURE THAT WE CAN MAKE SURE THAT OUR FACILITIES THAT DO THE RIGHT
THING GET TAKEN CARE OF FOR DOING THE RIGHT THING. BUT AT THIS TIME I WILL
BE VOTING IN THE AFFIRMATIVE. THANK YOU.
ACTING SPEAKER AUBRY: THANK YOU, SIR. MR.
DURSO IN THE AFFIRMATIVE.
MR. CAHILL TO EXPLAIN HIS VOTE.
MR. CAHILL: THANK YOU, MR. SPEAKER. AND I
THANK THE SPONSOR FOR ADVANCING THIS LEGISLATION. OFTENTIMES WHEN WE
VOTE ON BILLS WE HAVE TO DETERMINE WHETHER MORE GOOD THAN HARM IS
DONE BY THEM, AND I BELIEVE, AS MY PREVIOUS COLLEAGUE FROM
WESTCHESTER COUNTY INDICATED, THIS IS ONE OF THOSE INSTANCES WHERE A
GREAT DEAL OF GOOD IS BEING DONE IN THIS LEGISLATION. HOWEVER, THERE
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MAY BE SOME UNINTENDED CONSEQUENCES AND WHERE OTHERS MAY BE
CONCERNED ABOUT THIS OR THAT ASPECT OF IT. I AM PARTICULARLY CONCERNED
ABOUT THE IMPACT ON THE CONTINUING CARE RETIREMENT COMMUNITIES.
THEY ARE OFTEN THE PLACE WHERE PEOPLE INVEST THEIR LIFE SAVINGS AND
EXPECT TO HAVE A GREAT DEAL TO SAY ABOUT HOW THOSE FACILITIES OPERATE
FOR THE REMAINDER OF THEIR LIVES. AND THAT MAY OR NOT COMPORT WITH
SPENDING A CERTAIN PERCENTAGE OF MONEY ON THE SKILLED NURSING FACILITY
OR THE SUPERVISED LIVING AREA OR THE PRIVATE AREAS. AND I WOULD ALSO
SEEK TO CORRECT OR MODIFY THE RECORD IN ONE REGARD: THERE ARE 13
COMMUNITY -- CONTINUING CARE RETIREMENT COMMUNITIES IN NEW YORK
STATE. TWELVE OF THEM ARE FOR-PROFIT, ONE OF THEM IS TECHNICALLY
FOR-PROFIT OWNED BY NOT-FOR-PROFITS. SO WE ARE NOT TALKING HERE ABOUT
PEOPLE WHO ARE -- ARE DOING BAD THINGS. BUT ON BALANCE, THIS
LEGISLATION ADVANCES A VERY IMPORTANT GOAL. AND I WITHDRAW MY
REQUEST AND VOTE IN THE AFFIRMATIVE.
ACTING SPEAKER AUBRY: MR. CAHILL IN THE
AFFIRMATIVE.
MR. GOODELL.
MR. GOODELL: THANK YOU, SIR. PLEASE RECORD MR.
DURSO IN THE AFFIRMATIVE. WE HAVE NO OTHER EXCEPTIONS. THANK YOU,
SIR.
ACTING SPEAKER AUBRY: DON'T WORRY, MR.
DURSO, THERE'S AN ECHO IN THE ROOM.
MS. HYNDMAN.
MS. HYNDMAN: PLEASE NOTE THAT THE FOLLOWING
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MEMBERS WILL -- WILL BE VOTING IN THE NEGATIVE: DAN ROSENTHAL, JUDY
GRIFFIN, STEVE STERN AND SIMCHA EICHENSTEIN.
ACTING SPEAKER AUBRY: SO NOTED. THANK
YOU.
ARE THERE ANY OTHER VOTES?
(PAUSE)
MS. WALSH.
MS. WALSH: THANK YOU, MR. SPEAKER. WOULD YOU
ALSO PLEASE RECORD MR. SMITH IN THE AFFIRMATIVE? THANK YOU.
ACTING SPEAKER AUBRY: MR. SMITH IN THE
AFFIRMATIVE. THANK YOU.
ANNOUNCE THE RESULTS.
(THE CLERK ANNOUNCED THE RESULTS.)
THE BILL IS PASSED.
THE CLERK: ASSEMBLY NO. A06052, RULES REPORT
NO. 39, LUNSFORD. AN ACT TO AMEND THE PUBLIC HEALTH LAW, IN RELATION
TO REQUIRING INFECTION UPDATES AND INFECTION CONTROL PLANNING IN
RESIDENTIAL HEALTHCARE FACILITIES.
MS. WALSH: AN EXPLANATION, PLEASE.
ACTING SPEAKER AUBRY: AN EXPLANATION IS
REQUESTED, MS. LUNSFORD.
MS. LUNSFORD: THANK YOU, MR. SPEAKER. THIS
BILL IS DESIGNED TO EXPAND THE EXISTING PANDEMIC EMERGENCY PLAN TO
INCLUDE A SPECIFIC PLAN TO COHORT PATIENTS INFECTED DURING THE PANDEMIC
AND TO EXPAND THE COMMUNICATION PLAN TO MAKE SURE THAT FAMILY
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MEMBERS AND LOVED ONES ARE INFORMED EXPEDITIOUSLY OF ANY INFECTIONS
THAT ARE DISCOVERED WITHIN THE FACILITY.
ACTING SPEAKER AUBRY: MR. BYRNE.
MR. BYRNE: THANK YOU, MR. SPEAKER. WILL THE
SPONSOR YIELD FOR SOME QUESTIONS?
ACTING SPEAKER AUBRY: MS. LUNSFORD, WILL
YOU YIELD?
MS. LUNSFORD: YES, I WILL, MR. SPEAKER.
ACTING SPEAKER AUBRY: MS. LUNSFORD YIELDS,
SIR.
MR. BYRNE: THANK YOU, MS. LUNSFORD. SPEAKING
ABOUT THE NEW REQUIREMENT FOR THIS BILL, IT WOULD REQUIRE RESIDENTIAL
HEALTHCARE FACILITIES TO UPDATE ALL RESIDENTS, AUTHORIZE FAMILY MEMBERS
AND GUARDIANS OF RESIDENTS AT THE FACILITY WITHIN 12 HOURS OF THE
DETECTION OF THE PRESENCE OF AN INFECTION BY A RESIDENT OR STAFF MEMBER.
THAT -- THAT'S CORRECT?
MS. LUNSFORD: YES --
MR. BYRNE: RIGHT, IN YOUR --
MS. LUNSFORD: -- THAT'S CORRECT.
MR. BYRNE: OKAY. THIS WAS -- I WAS PLANNING ON
VOTING YES FOR THIS IN COMMITTEE AND WE HAD A -- A DISCUSSION WHICH
KIND OF RAISED SOME RED FLAGS FOR MYSELF AND PERHAPS SOME OF MY
COLLEAGUES, AND IT IS HOW WE'RE DEFINING INFECTION. IS IT IN YOUR
UNDERSTANDING THAT WE'RE LOOKING -- WELL, FIRST OF ALL, AND I DON'T THINK
IT'S -- IT'S DEFINED SPECIFICALLY IN THE BILL. IS THIS -- IS IT YOUR INTENT THAT
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THIS IS GOING TO BE FOR ALL INFECTIONS, OR THE INFECTION THAT IS CAUSED BY
THE PANDEMIC DISEASE?
MS. LUNSFORD: THIS BILL RELATES SPECIFICALLY TO A
PANDEMIC EMERGENCY RESPONSE PLAN, SO THE INFECTION AT ISSUE IN THE BILL
WOULD BE THE INFECTION THAT IS THE SUBJECT OF THAT PANDEMIC.
MR. BYRNE: OKAY. WELL, I -- I THINK THAT WAS A
PRETTY CLEAR ANSWER. I APPRECIATE THAT. I UNDERSTAND THAT THIS IS
PERTAINED TO THE PANDEMIC EMERGENCY RESPONSE PLAN. I'M NOT SURE
PANDEMIC EMERGENCY WAS PROPERLY DEFINED IN THE ORIGINAL BILL EITHER.
BUT IN THE LANGUAGE I DIDN'T SEE A CLEAR ANSWER. AND IN OUR DEBATE I
WAS CONCERNED BECAUSE IF THIS WAS INTERPRETED AS ANY INFECTION WHILE
WE'RE IN A PANDEMIC EMERGENCY AND THEY'RE EXECUTING A PANDEMIC
EMERGENCY RESPONSE PLAN, THE CONCERN WOULD BE, IF THIS WASN'T
CLARIFIED, THAT ALL OF A SUDDEN THEY WOULD HAVE THE RESPONSIBILITY OF
HAVING THESE AUTOMATIC NOTIFICATIONS WITHIN 12 HOURS TO ALL OF THE
RESIDENTS AND THEIR FAMILY MEMBERS AND GUARDIANS FOR ANY INFECTIONS.
AND AS I'M SURE YOU'RE AWARE, A LOT OF THESE FACILITIES DO DEAL WITH
INFECTIONS, YOU KNOW, AND -- AND A LOT OF PATIENTS AND RESIDENTS WITH A
LOT OF DIFFERENT MEDICAL ISSUES. SOME OF THEM HAVE MORE SERIOUS
ISSUES AND SOME OF THEM HAVE INFECTIONS LIKE, FOR EXAMPLE, C.DIFF OR
MRSA, WHICH ARE ALSO SERIOUS AND CAN BE SPREAD OR CONTAGIOUS. BUT
THEN YOU ALSO COULD HAVE SOMETHING AS BROAD AS A SEXUALLY-TRANSMITTED
DISEASE. AND I WANTED TO MAKE SURE THAT JUST BECAUSE WE'RE IN A
PANDEMIC EMERGENCY WE'RE NOT GOING TO BE AUTOMATICALLY NOTIFYING ALL
THE RESIDENTS AND THEIR FAMILY MEMBERS THAT ONE STAFF MEMBER OR ONE
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PARTICULAR RESIDENT HAD SOMETHING LIKE AN STD. SO IN YOUR
UNDERSTANDING THAT IS CLEARLY NOT THE CASE. I THINK MOST OF -- A LOT OF
THE DEBATES THAT WE'VE HEARD SO FAR, MS. LUNSFORD, THE AG'S REPORT WAS
CITED AND I HAVE TO THINK THAT IS PART OF THE JUSTIFICATION FOR YOUR BILL, IS
-- IS THAT CORRECT?
MS. LUNSFORD: THAT IS CORRECT, YES. THAT THIS
COMES DIRECTLY OUT OF THOSE AUGUST HEARINGS WHERE WE LEARNED THAT
NURSING HOMES WERE NOT TAKING APPROPRIATE PRECAUTIONS.
MR. BYRNE: AND -- PRECISELY. SO I JUST WANTED TO
READ THIS INTO THE RECORD, TOO, JUST SO -- AGAIN, I -- I JUST WANT TO GET THIS
AS CLEAR AS POSSIBLE BECAUSE ONE OF THE RECOMMENDATIONS, IF I'M
READING THIS CORRECTLY, FORMALLY ENACT AND CONTINUE TO ENFORCE
REGULATORY REQUIREMENTS THAT NURSING HOMES COMMUNICATE WITH FAMILY
MEMBERS OF RESIDENTS PROMPTLY, BUT NOT LATER THAN WITHIN 24 HOURS OF
ANY CONFIRMED OR SUSPECTED COVID-19 INFECTION AND ANY CONFIRMED OR
SUSPECTED COVID-19 DEATH. SO IT'S SPECIFIC, AGAIN, TO THE -- THE
INFECTION IN QUESTION AS IS RELATED TO THE PANDEMIC. AGAIN, THAT WAS
MY PRIMARY CONCERN ABOUT THIS BILL, AND I THANK YOU FOR TAKING THE TIME
TO ANSWER MY QUESTION, MS. LUNSFORD.
MS. LUNSFORD: YOU'RE WELCOME, SIR.
ACTING SPEAKER AUBRY: READ THE LAST SECTION.
THE CLERK: THIS ACT SHALL TAKE EFFECT ON THE 60TH
DAY.
ACTING SPEAKER AUBRY: THE CLERK WILL RECORD
THE VOTE ON ASSEMBLY PRINT 6052. THIS IS A PARTY VOTE -- THIS IS A FAST
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NYS ASSEMBLY MARCH 9, 2021
ROLL CALL. ANY MEMBER WHO WISHES TO BE RECORDED IN THE NEGATIVE IS
REMINDED TO CONTACT THE MAJORITY OR MINORITY LEADER AT THE NUMBERS
PREVIOUSLY PROVIDED.
(THE CLERK RECORDED THE VOTE.)
MS. WALSH TO EXPLAIN HER VOTE.
MS. WALSH: THANK YOU, MR. SPEAKER. I'D LIKE TO
COMMEND THE SPONSOR ON HER FIRST BILL BEFORE THIS BODY, AND I
APPRECIATE MY COLLEAGUE'S QUESTIONS EARLIER, WHICH WERE REALLY MINE. I
WILL SUPPORT THIS BILL. I -- I ONLY HOPE -- IT DOESN'T REALLY STATE IN THE
BILL, BUT I DO HOPE THAT IN TERMS OF HIPAA THAT WHEN THIS NOTIFICATION
IS MADE TO FAMILY MEMBERS OR GUARDIANS OR, YOU KNOW, PEOPLE WHO ARE
IN -- WHO HAVE RESIDENTS THAT ARE IN THE FACILITY THAT, YOU KNOW, CARE
WILL BE TAKEN TO TRY TO PROTECT THE PRIVACY AND PRIVATE INFORMATION OF
THE INDIVIDUALS WITH THE INFECTION.
BUT I -- I COMMEND THE SPONSOR, I THINK IT'S A GREAT BILL
AND I'M HAPPY TO SUPPORT IT. THANK YOU.
ACTING SPEAKER AUBRY: MS. WALSH IN THE
AFFIRMATIVE.
MR. GOTTFRIED TO EXPLAIN HIS VOTE.
MR. GOTTFRIED: THANK YOU, MR. SPEAKER. FIRST
OF ALL, I WANT TO THANK ALL OF MY COLLEAGUES FOR BOTH THOSE WHO HAVE
BEEN SPONSORS OF PIECES OF THIS LEGISLATION AND THOSE ON BOTH SIDES OF
THE AISLE WHO HAVE SUPPORTED THIS PACKAGE. I JUST WANT TO ADD ONE
POINT. PEOPLE HAVE TALKED ABOUT HOW THIS LEGISLATION IS FOCUSED ON THE
COVID SITUATION. THAT IS CERTAINLY ON EVERYONE'S MINDS. BUT THE
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PROBLEMS THAT THIS WHOLE PACKAGE IS AIMED AT ARE PROBLEMS THAT WERE
IN OUR NURSING HOMES, SERIOUSLY IN OUR NURSING HOMES, TO THE
DISADVANTAGE OF -- OF NURSING HOME RESIDENTS AND THEIR FAMILIES LONG
BEFORE THE COVID VIRUS EVOLVED. AND IF IT MAY BE THAT THIS MOMENT
HAS CREATED AN OPPORTUNITY TO FINALLY TAKE ACTION ON THIS ISSUE, THAT'S ALL
WELL AND GOOD. BUT WE SHOULD ALWAYS REMEMBER, THESE PROBLEMS ARE
NOT NEW. THESE PROBLEMS HAVE FESTERED FOR YEARS AND IT'S LONG OVERDUE
FOR NEW YORK TO BE TAKING ACTION AND I'M PROUD TO VOTE IN THE
AFFIRMATIVE ON MS. LUNSFORD'S FIRST BILL.
THANK YOU. I VOTE IN THE AFFIRMATIVE.
ACTING SPEAKER AUBRY: MR. GOTTFRIED IN THE
AFFIRMATIVE.
MR. BYRNE.
MR. BYRNE: THANK YOU, MR. SPEAKER. TO EXPLAIN
MY VOTE.
ACTING SPEAKER AUBRY: TO EXPLAIN YOUR VOTE,
SIR.
MR. BYRNE: I JUST WANTED TO COMMEND THE SPONSOR
AGAIN. THANK YOU FOR TAKING THE TIME TO ANSWER OUR QUESTIONS AND
MAKE IT CLEAR WHAT THE INTENT OF THIS BILL IS. I DO SUPPORT IT. IF WE NEED
A CHAPTER AMENDMENT TO JUST MAKE IT CLEAR SO THERE'S NO NEED FOR THE
DOH TO INTERPRET "INFECTION," I WOULD SUPPORT THAT AS WELL. WHETHER
THAT'S A CHAPTER AMENDMENT SUPPORTED BY THE GOVERNOR OR LIEUTENANT
GOVERNOR, I WOULD BE GLAD TO SUPPORT THAT. BUT I -- AGAIN, I WANT TO
THANK THE SPONSOR FOR THIS BILL. I THINK IT'S A VERY GOOD IDEA, AND THE
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OFFICE OF THE ATTORNEY GENERAL FOR PUSHING THIS IDEA AND HER RUNNING
WITH IT.
SO AGAIN, THANK YOU, MR. SPEAKER. I WILL BE VOTING IN
THE AFFIRMATIVE.
ACTING SPEAKER AUBRY: MR. BYRNE IN THE
AFFIRMATIVE.
MS. LUNSFORD.
MS. LUNSFORD: THANK YOU VERY MUCH. I WOULD
LIKE TO THANK ALL OF MY COLLEAGUES AGAIN FOR THEIR SPONSORSHIP OF THIS
ENTIRE PACKAGE AND FOR ALLOWING ME TO CARRY THIS BILL TODAY. THIS IS
GOVERNMENT AT WORK. THIS IS GOVERNMENT RESPONDING TO PROBLEMS.
THIS IS US LISTENING TO THE STAKEHOLDERS AND TO THE PEOPLE MOST AFFECTED
BY A PROBLEM AND BRINGING REAL SOLUTIONS. AND I'M REALLY PROUD TO BE A
PART OF THIS, AND I WANT TO THANK MY COLLEAGUES ACROSS THE AISLE FOR YOUR
CAREFUL QUESTIONS, FOR MY COLLEAGUES OVER HERE WHO HAVE SUPPORTED ALL
THESE BILLS, AND I LOOK FORWARD TO CONTINUING TO DO THE WORK OF THE
PEOPLE.
THANK YOU.
ACTING SPEAKER AUBRY: MS. LUNSFORD IN THE
AFFIRMATIVE.
MRS. PEOPLES-STOKES TO EXPLAIN HER VOTE.
MRS. PEOPLES-STOKES: THANK YOU, MR.
SPEAKER, FOR THE OPPORTUNITY TO EXPLAIN MY VOTE. I WANT TO JOIN
COLLEAGUES IN CONGRATULATING OUR NEW COLLEAGUE ON HER FIRST BILL. BUT I
ALSO WANT TO SAY TO THE DEBATE THAT HAS GONE ON FOR ALL DAY REGARDING
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HOW TO MAKE NURSING HOMES SAFER AND STRONGER AND BETTER FOR THOSE
THAT ARE IN NEED OF THEM. I'VE SAID THIS A COUPLE OF TIMES LAST WEEK, BUT
IT BEARS REITERATING BECAUSE MR. GOTTFRIED JUST SPOKE OF IT AGAIN. OUR
NURSING HOMES IN THE STATE OF NEW YORK HAVE REALLY BEEN A PROBLEM
FOR A WHILE. AND I THINK THE MEASURES THAT WE'VE TAKEN TODAY AS WELL
AS MS. LUNSFORD'S BILL IS GOING TO HELP US RIGHT-SIDE THE SHIP THAT'S BEEN
GOING THE WRONG WAY. I THINK WE'VE MOVED TO THE RIGHT POSITION ON
THIS ONE AND IT'S MY PLEASURE TO VOTE FOR THIS BILL AS IT WAS FOR THE
OTHERS.
THANK YOU, MR. SPEAKER.
ACTING SPEAKER AUBRY: THANK YOU.
ARE THERE -- MR. GOODELL TO EXPLAIN HIS VOTE.
MR. GOODELL: THANK YOU, SIR. I WILL BE
SUPPORTING THIS BILL AND I APPRECIATE THE EFFORTS OF MY COLLEAGUES. I
VERY MUCH APPRECIATE ALL THE COMMENTS AND EXPERTISE WE ALSO HEARD
FROM OUR COLLEAGUE MR. GOTTFRIED. HAVING ALSO SERVED WITH HIM ON THE
HEALTH COMMITTEE I CERTAINLY APPRECIATE IT. EVEN THOUGH I DON'T
ALWAYS AGREE WITH HIS BILLS, I ALWAYS AGREE WITH HIS KNOWLEDGE AND
INTEGRITY FOR SURE. AS -- AS MY COLLEAGUES HAVE ACKNOWLEDGED, THE
NURSING HOME INDUSTRY DOES FACE MANY CHALLENGES AND SOME OF THOSE
BECAME READILY APPARENT OVER THE LAST YEAR. I WOULD REMIND MY
COLLEAGUES, THOUGH, THAT TYPICALLY 80 PERCENT OR MORE OF THE RESIDENTS
IN NURSING HOMES ARE ON MEDICAID, AND HISTORICALLY MEDICAID HAS PAID
ONLY A FRACTION OF THE ACTUAL COST OF OPERATING A NURSING HOME. SO HERE
WE ARE AS THE LEGISLATURE, WE'RE CRITICIZING NURSING HOMES FOR NOT
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PROVIDING ENOUGH STAFF SUPPORT, ENOUGH CARE, ENOUGH PPE, WHATEVER,
WHILE AT THE SAME TIME OUR PAYMENT RATE FOR MEDICAID IS ONLY A
FRACTION OF THE ACTUAL COST. SO WE OUGHT TO STEP UP TO THE PLATE
OURSELVES. AND WHEN WE START PAYING A MORE APPROPRIATE RATE WE'RE
GOING TO SEE A MORE APPROPRIATE RESPONSE FROM OUR NURSING HOMES.
BUT WITH THAT, I -- AGAIN, I APPRECIATE MY COLLEAGUE'S
COMMENTS AND HER SPONSORSHIP OF THIS BILL.
AND IF I MAY JUST JUMP A LITTLE BIT AHEAD, THE ONLY
EXCEPTION WE HAVE IS MR. DIPIETRO ON THIS PARTICULAR BILL. THANK YOU.
ACTING SPEAKER AUBRY: SO NOTED.
ARE THERE ANY OTHER VOTES? ANNOUNCE THE RESULTS.
(THE CLERK ANNOUNCED THE RESULTS.)
THE BILL IS PASSED.
AND MS. LUNSFORD, CONGRATULATIONS EVEN THOUGH
YOU'VE BEEN CONGRATULATED BY EVERYONE.
(APPLAUSE)
AND MS. LUNSFORD, FOR YOU AND MANY OTHERS WHO
PASSED THEIR BILLS IN THIS ERA, I HOPE WHEN WE'RE ALL BACK TOGETHER AGAIN
WE'LL HAVE ONE FULL HOUSE SURROUNDING APPLAUSE FOR ALL OF YOU WHO
HAVE DONE THIS WORK IN SUCH DIFFICULT CONDITIONS. THANKS AND
CONGRATULATIONS.
MRS. PEOPLES-STOKES.
MRS. PEOPLES-STOKES: MR. SPEAKER, DO WE
HAVE ANY HOUSEKEEPING OR RESOLUTIONS?
ACTING SPEAKER AUBRY: WE HAVE NEITHER
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HOUSEKEEPING NOR RESOLUTIONS.
MRS. PEOPLES-STOKES: THANK YOU. COULD WE
CALL ON MS. HUNTER FOR AN ANNOUNCEMENT?
ACTING SPEAKER AUBRY: MS. HUNTER FOR AN
ANNOUNCEMENT.
MS. HUNTER: YES, THANK YOU, MR. SPEAKER. THERE
WILL BE A NEED FOR A MAJORITY CONFERENCE AT THE CONCLUSION OF OUR
SESSION TODAY.
ACTING SPEAKER AUBRY: MAJORITY CONFERENCE,
CONCLUSION OF SESSION.
MRS. PEOPLES-STOKES.
MRS. PEOPLES-STOKES: I NOW MOVE THAT THE
ASSEMBLY STAND ADJOURNED UNTIL 10:30 A.M. WEDNESDAY, MARCH THE
10TH, TOMORROW BEING A SESSION DAY.
ACTING SPEAKER AUBRY: THE ASSEMBLY STANDS
ADJOURNED.
(WHEREUPON, AT 5:49 P.M., THE ASSEMBLY STOOD
ADJOURNED UNTIL WEDNESDAY, MARCH 13TH AT 10:30 A.M., WEDNESDAY
BEING A SESSION DAY.)
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