Testimony: Impact of Covid-19 on Programs and Services for Older Adults and Caregivers in New York State
Testimony to the New York State Assembly Standing Committee on Aging
Topic: The Impact of CPVID-19 on programs and support services for older adults and their caregivers within the state
Public Hearing: November 22, 2021 (PDF Available Below Citations)
Submitted by
Lindsay Heckler, MPH - Supervising Attorney Center for Elder Law & Justice - lheckler@elderjusticeny.org - (716) 853-3087 x212
Thank you for holding a public hearing to examine how the COVID-19 pandemic has impacted the availability, effectiveness, and efficiency of programs for older adults and their caregivers and for evaluating what may be needed to ensure the effectiveness of these programs in the future. We also thank you for the opportunity to submit written testimony.
All of the programs listed in the hearing notice, including but not limited to: Expanded In-Home Services for the Elderly Program (EISEP), meals on wheels, and Elder Abuse Education and Outreach, are all important and should be fully funded and promoted so that older adults across the state can age with independence and dignity and their caregivers can be supported.
We focus our testimony on the New York State Long Term Care Ombudsman Program (SLTCOP or LTCOP) and its importance to residents who live in long-term care settings, their caregivers, and others. While focused on older adults and persons with disabilities who live in nursing homes, adult care facilities, and family-type homes, as stated below, LTCOP is an essential component in the long-term services and supports system.
The Center for Elder Law & Justice (CELJ) has been serving the Western New York region for over 40 years, providing free civil legal services to older adults, people with disabilities and low-income families. CELJ’s primary goal is to use the legal system to assure that individuals may live independently and with dignity. We have been partnered with the New York Region 15 LTCOP (Reg. 15 LTCOP) since October 2015; supporting Reg. 15 LTCOP staff and volunteer ombudsmen, 2 ensuring residents are connected to essential legal services and supports, and increasing advocacy for those who live in nursing homes and other long-term care settings.
Overview of LTCOP
Established under the federal Older Americans Act, LTCOP is administered by the Administration for Community Living (ACL) at the federal level. Every state is required to have a LTCOP, and while there is opportunity for a state to have its own laws and regulations regarding the program, every state LTCOP must adhere to federal law and regulation (1).
The New York State LTCOP is administratively housed in the State Office for the Aging and administered through 15 regional programs (regional LTCOPs). The regional LTCOPs are comprised of staff and volunteer ombudsman and together are responsible for almost 1,500 long-term care facilities: nursing homes, adult care facilities, and family-type homes. In 2019, LTCOP had 50 paid staff (full and part-time) and 435 certified volunteer ombudsmen (2).
The mission of LTCOP is to serve as an advocate and resource for older adults and persons with disabilities who live in long-term care facilities. LTCOP is responsible for:
Helping residents and family members understand and exercise their rights in order to address concerns that impact their health, safety, and quality of life;
Identifying, investigating and resolving complaints made by or on behalf of residents;
Discharge planning advocacy for residents to return to the community or lower level of care;
The promotion and development of resident and family councils;
Connecting residents to resources such as Open Doors, legal services, and other community based organizations; and
Informing governmental agencies, providers, and the general public about issues and concerns impacting residents of long-term care facilities.
The New York LTCOP is based on a volunteer model and as such heavily relies on certified volunteer ombudsmen to provide a regular presence in facilities in order to carry out the mission of LTCOP. Ombudsmen are a key piece in the fight against substandard care, abuse, neglect, exploitation, and other violations of resident rights. Frequent facility visits by an Ombudsman establishes resident trust and rapport so that residents feel comfortable sharing their concerns. These visits also provide another ‘pair of eyes’ to monitor residents for quality of care and life concerns; speaking for those who cannot. During the COVID-19 pandemic, ombudsmen have been an essential resource for residents and their families by advocating for increased communications, addressing quality care concerns, and other advocacy.
Overview of CELJ partnership with Reg. 15 LTCOP
In 2015, when SLTCOP moved to a regional model comprising of 15 regional LTCOPs, CELJ and People Inc., the host agency of the Reg. 15 LTCOP, used this as an opportunity to work together in partnership to improve the capabilities of the program. CELJ is contracted with People Inc., as Reg. 15 LTCOPs “Legal Liaison.” As the Legal Liaison, CELJ is responsible for many roles in expanding resident advocacy including: training ombudsmen to identify potential legal issues, navigating (referring) the resident (client) between Reg. 15 LTCOP and CELJ for coordinated assistance by both organizations, providing ‘in-house’ legal support to staff and volunteer ombudsmen through legal and regulatory research and ombudsman case guidance support, issue specific ombudsmen/legal FAQs, systems advocacy initiatives such as in-depth reports on substandard nursing homes, legislative advocacy, and trainings to staff and volunteer ombudsmen, nursing homes and adult care facilities, and in the community.
Through our partnership not only has individual and systems advocacy increased, the partnership has been instrumental in ensuring residents in nursing homes and adult care facilities are successfully connected to legal services for representation on a variety of issues including: involuntary discharges/evictions, financial exploitation, Medicare and Medicaid denials, legal advice on applying for Medicaid, barriers to receiving home care services, and more.
Legal services partnerships with regional LTCOPs are essential. However, as detailed below, due to chronic underinvestment in the program, regional LTCOPs are strained in their ability to contract with legal services. The CELJ-Reg. 15 LTCOP partnership currently is the only such partnership in New York State.
Lack of investment in LTCOP impacts its LTCOP’s ability to carry out its mission.
According to national data (3) comparing New York’s level of investment to other state LTCOPs, New York has chronically underfunded LTCOP and as a result LTCOP’s ability to effectively carry out its mission has been directly impacted. According to this national data, New York has the 4th highest long-term care resident population in the country (163,755 beds). However New York funding to LTCOP lags well behind other states with similar or higher long-term care resident populations. For example, California, with 308,011 beds, funds its program at $6,927,242, which accounts for 51.5% of the total funding, or $22 per resident in state funds. New York, funds its program at $1,190,000, which accounts for 31.8% of the total funding, or $7 per resident in state funds.
New York ranks 17th in percentage of state funding at 31.83%, and 43rd in the number of LTC facility beds per paid staff at 3,650. This means paid ombudsmen in New York are responsible for more residents compared to other states. This underinvestment in LTCOP is impacting the program’s ability to fulfill its mission.
In addition to the national data, reports from the New York State Comptroller and New York City Comptroller highlight the chronic underinvestment in the program and its direct impact on LTCOP ability to carry out its mission. For example:
New York State Comptroller: Report 2018-S-48 October 2019 (4)
30% of long-term care facilities were not visited by an ombudsman, leaving residents with reduced access to these important services.
Eleven of the fifteen regional programs fell short of the recommended minimum number of staff for the federal fiscal year ending September 30, 218.
New York City Comptroller: Report June 2020 (5)
In New York City there is only one ombudsman for every 8, 650 nursing home residents, far below the recommendation by the Institute of Medicine of one full-time ombudsman for every 2,000 long-term care residents.
There is no assigned ombudsman, whether full-time or volunteer, for over 20,000 residents in 80 long-term care facilities in the City.
Investment in LTCOP is Essential for Ensuring Older Adults Age with Independence and Dignity
As described earlier, LTCOP is a key piece in ensuring older adults age with independence and dignity. While volunteer ombudsmen serve a important role and resource for residents in long term care settings, it is time for LTCOP to become professionalized with more staff ombudsmen. Having staff ombudsmen, with volunteer ombudsmen to supplement, is needed to ensure the program is effective in fulling its mission and ensuring residents have access to an ombudsman.
In addition, increasing funding to ensure there are enough staff ombudsmen to meet resident needs for advocacy, information, and referrals, LTCOP needs this increased investment in order to be effective in its advocacy in accordance with newly enacted laws from the 2021 legislative session including:
Chapter 80 of the Laws of 2021 (A3919-Hevasi/S3058-Rivera) (A3919/S3085), amended by Chapter 138 of the Laws of 2021(A7018-Hevasi/S6204-Rivera) (A7018/S6204). Created new Public Health Law 2803-z Transfer, Discharge, and Voluntary Discharge Requirements for Residential Health Care Facilities that requires nursing homes send facility-initiated transfer or discharge notices to LTCOP within 30 days of the proposed transfer or discharge. (*This is also required under federal regulation.)
Chapter 102 of the Laws of 2021 (A5684A-Gottfried/S4893A-Rivera) amended by Chapter 141 of the Laws of 2021 (A7517-Gottfried/S6767-Rivera), requires LTCOP be notified of an application for ownership change (or establishment of a new nursing home), and requires LTCOP to submit its recommendation on the ownership change to the NYS Department of Health (DOH) and Public Health and Health Planning Council for consideration. In addition LTCOP is to be provided 90 day notice, like DOH, on binding letters of intent, and when the nursing home operator is entering into any new common or familial ownership of any corporation, or other entity or individual providing services to the operator of the nursing home.
LTCOP has the potential to be impactful on nursing home ownership changes and related party contracts. However it needs substantial investment in order to do so.
In addition investing in LTCOP, NYS DOH must facilitate lines of communication with LTCOP. Ombudsmen are tasked with investigating resident complaints and advocating to resolve them to the satisfaction of the resident. However ombudsmen are resident advocates; they are not an enforcement entity. When ombudsmen identify an urgent issue or are unable to resolve a complaint, LTCOP (the residents) need the NYS DOH, the enforcement entity, to step in and enforce the laws and regulations. NYS DOH response and involvement to a LTCOP filed complaint does not always get the attention it deserves. A5346B-Clark/S612B-May, pending for Governor Kathy Hochul’s signature, would establish a formal line of communication between LTCOP and NYS DOH and will ensure complaints by LTCOP get the attention deserved. Such line of communication does not violate federal regulation.
In addition to a substantial State investment to LTCOP, the mission of LTCOP can be further strengthened through annual public reporting requirements that would list by facility name and region, the number of visits to each facility by LTCOP, and the types of complaints received by LTCOP (*while not violating resident confidentiality). We also recommend the establishment of a LTCOP Council, chaired by the State Ombudsman, that would include representatives from each regional LTCOP as well as consumer groups representing families and residents in New York’s long term care facilities. Nursing Homes and Adult Care Facilities and their representatives are routinely at the ‘table’ and involved policy and funding recommendations; residents, families, and consumer groups however are not. A LTCOP Council that is responsible for providing input on new requirements of policy and funding recommendations would rectify this and further bolster the mission of LTCOP.
Thank you for the opportunity to submit this testimony. Please feel free to contact me with any questions.
Lindsay Heckler, MPH
Supervising Attorney - Center for Elder Law & Justice
(716) 853-3087 x212
1 42 USC § 3058g; 45 CFR §1324 Subpart A
2 As reported in the 2019 NYS Long-Term Care Ombudsman Program 2019 Annual Report
3 Accessed at https://ltcombudsman.org/omb_support/nors/nors-data
4 Accessed at https://www.osc.state.ny.us/state-agencies/audits/2019/10/03/long-term-care-ombudsman-program
5 Accessed at https://comptroller.nyc.gov/reports/protecting-our-most-vulnerable/
