Testimony: State of the Long-Term Care Ombudsman Program
Testimony to the New York State Assembly Standing Committee on Aging
Topic: To review and examine the state of the Long-Term Care Ombudsman Program
Public Hearing: March 2, 2023 (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 the opportunity to provide testimony on the Long-Term Care Ombudsman Program (LTCOP).
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, persons 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. CELJ also advocates for policy and systems change, particularly in the areas of elder abuse prevention, nursing home reform, consumer protection, and housing reform. Currently, CELJ provides full legal representation in ten counties of Western New York. CELJ’s Free Senior Legal Advice Helpline is open to all of New York State. CELJ operates a main office in downtown Buffalo, with two additional offices in Niagara and Chautauqua counties.
CELJ has partnered with the New York State Region 15 LTCOP (Reg. 15 LTCOP), since 2015. Reg 15. LTCOP covers Cattaraugus, Chautauqua, Erie, and Niagara counties. CELJ is contracted with People Inc., Reg. 15 LTCOP’s host agency, as the program’s “Legal Liaison.” I am proud to say I am the Legal Liaison in the partnership and a certified ombudsman. As the Legal Liaison, CELJ supports Reg. 15 LTCOP in its advocacy by:
Training ombudsmen to identify potential legal issues and navigating residents (clients) between Reg. 15 LTCOP and CELJ for coordinated assistance;
Providing in-house support to staff and volunteer ombudsmen through legal and regulatory research and case guidance support;
Systems advocacy initiatives such as in-depth reports, development of facility specific ombudsman action plans, legislative advocacy and trainings to staff and volunteer ombudsmen.
As detailed in CELJ’s written testimony submitted to the Assembly Standing Committee on Aging for the November 22, 2021 hearing that examined the impact of COVID-19 on programs and support services for older adults and caregivers within the state, the NYS LTCOP has been chronically underfunded for years. This chronic lack of investment has severely impacted LTCOP’s ability to effectively carry out its mission.
The legislation that was signed into law in 2021 and 2022, meant to strengthen the LTCOP, cannot have a positive impact on the program, and thereby the quality of care and lives of older adults and persons with disabilities who live in long-term care settings, absent a substantial financial investment by NYS. LTCOP must move to a model whereby volunteer ombudsmen support and supplement staff ombudsmen. Without this investment, LTCOP cannot achieve its federally and state mandated purpose: educate, empower and advocate for long-term care residents.
The purpose of our testimony today is to provide examples of what LTCOP has been able to do on a severely limited budget, and what LTCOP could do to improve the quality of care and lives of older adults and persons with disabilities who are living in nursing homes, if NYS fully invests in the program.
I. Addressing Involuntary and/or Unsafe Transfers and Discharges from Nursing Homes.
Involuntary (and unsafe) transfers/discharges from nursing homes remain a major problem, in NYS and nationally (1). CMS and NYS have attempted to address this issue, in part, by requiring nursing homes to send copies of involuntary discharge notices to LTCOP (2).
The intent of sending copies of this notice to LTCOP is to:
Provide added protection to residents from inappropriate transfers/discharges;
Provide residents with an advocate who can inform them of their options and rights; and
Ensure LTCOP is aware of facility practices and activities related to transfers/discharges (3).
For example, there is a continued issue of nursing homes discharging residents who have been admitted to the facility for short-term rehabilitation (often covered by Medicare) to another nursing home because they need “long-term care”. This violates federal and state laws and regulations. CELJ, in working with Reg. 15 LTCOP, addresses this issue by flagging every lateral nursing home transfer as potentially involuntary, and sends an ombudsman to meet with the resident. Due to lack of ombudsmen, it is not always possible to meet with every resident prior to, and after, the discharge. Nonetheless, Reg. 15 LTCOP has been successful in advocating for the resident to prevent the transfer, and connecting the resident to CELJ for legal representation to appeal the transfers as appropriate.
This is just one example of an involuntary/inappropriate discharge. Residents are discharged to nursing homes across the state (and out of state) for a variety of reasons including: non-payment, needs cannot be met, and endangerment. Residents are also discharged to the community setting too soon, without adequate services and supports in place, and to hotels, shelters and an office window of LDSS (Local Department of Social Services). These unsafe discharges, due to failure of the nursing home to properly care and discharge plan, result in resident harm and set off what we refer to as the “vicious cycle”: hospital → nursing home → discharge location → hospital.
In 2021-2022, CELJ handled 163 cases involving involuntary discharges/transfers and evictions from nursing homes and adult care facilities (4). Reg. 15 LTCOP accounted for ~15% of Admission/Transfer/Discharge/Eviction complaints in Q3 FFY 2022 (5).
With investment to increase staffing, LTCOP can have a positive impact in addressing involuntary and/or unsafe transfers by:
visiting new admissions to the nursing home to explain resident rights, including the right to discharge planning,
identifying and addressing illegal/inappropriate facility practices,
meeting with residents who are facing an involuntary (and/or unsafe) discharge to inform the resident of their rights and options, including the right to appeal; and
connecting residents to legal services for representation as appropriate.
II. Coordinated Advocacy with Legal Services Organizations
As part of CELJ’s partnership with Reg. 15 LTCOP, we provide in-house support to staff and volunteer ombudsmen and navigate residents and their representatives between our programs to ensure they receive wholistic support and services. In addition to ensuring residents have legal representation and advocacy in involuntary discharge/transfer situations, the partnership has been essential in ensuring residents have the information needed to not only make informed decisions about their legal needs (i.e. navigating long-term care services and supports, Medicaid eligibility, and others) but also have access to free legal representation.
Since our partnership was created, we have increased the number of cases CELJ has handled pertaining to Medicare and Nursing Homes:
2015: 71 cases
2016: 160 cases
2020: 300 cases
Examples of coordinated advocacy with Reg. 15 LTCOP:
Ensuring residents receive skilled therapy and skilled nursing services:
Situation- nursing home states therapy services will be cut off because Medicare will not pay as the resident is “not showing improvement” or “plateaued” (6).
Reg. 15 LTCOP-CELJ Partnership: goal is to keep therapy going
Legal Liaison: LTCOP and facility training on proper standards/Jimmo
LTCOP: works with resident and facility to keep therapy going, or therapy restarted (i.e. bring the focus on the resident and their goals-care planning and discharge planning)
ELJ Attorney: handles the Medicare appeal
Discharge to the community
Situation-resident is caught in the middle of ‘facility vs insurance’ disputes and other barriers to returning to a home in the community.
Ombudsman: discharge care planning
CELJ Attorney: investigates and handles insurance issues, access to home
If NYS fully invested in LTCOP, enabling Reg. 15 LTCOP (and other regional LTCOPs) to fully staff their programs, imagine how many residents would be advised of not only their rights as a resident, but connected to important resources such as legal services.
III. Addressing Department of Health Communications with LTCOP
CELJ does not host a regional LTCOP. As such, we cannot comment on the line of communication that was established between LTCOP and DOH pursuant to Chapter 759 of the Laws of 2021, and as amended by Chapter 19 of the Laws of 2022. We can however comment on whether the DOH has the legal authority to proactively work with LTCOP: it does.
Chapter 19 of the Laws of 2022 amended Part B of the Long Term Care Ombudsman Reform Act, in part, to remove the requirement that the DOH notify the LTCOP when it will “conduct inspections of [long term care] facility, including surveillance of such facility, and of any complaints received by the department concerning such facility.” The law currently only requires that the DOH notify LTCOP after it conducts a recertification survey.
This change is contrary to CMS’ intention that the state survey agency (DOH) involve LTCOP in the survey process of nursing homes. For example, in CMS’ guidance to state survey agencies, CMS answers the question “Do we contact the Ombudsman prior to entrance to the facility-“with “Yes, information from the Ombudsman should be used to complete the offsite preparation.”(7) CMS’ procedure guide to state survey agencies on the nursing home surveillance process directs DOH to “Contact the Ombudsman in accordance with State policy.”(8) CMS State Operations Manual, Chapters 3 and 5, specifically include LTCOP in the complaint investigation process and other activities such as provider non-compliance (9).
LTCOP, as the agency that is intended to visit nursing homes on a regular basis, has information that could assist DOH in its enforcement responsibilities for complaint or certification inspections. The changes to PHL § 2803(13) inhibit the LTCOP from sharing information prior to survey (and at the beginning of the survey) necessary for the inspection.
IV. Addressing Nursing Home Ownership Changes, Management Contracts, and Related Party Transactions
Chapter 102 of the Laws of 2021, as amended by Chapter 141 of the Laws of 2021, made various changes to the Certificate of Need (CON) process that included the involvement of LTCOP (and residents and their representatives):
Amended PHL § 2801-a to require LTCOP be notified of an application for ownership change (or establishment of a new nursing home) within 30 days of DOH’s acknowledgement of the application and requires LTCOP to submit its recommendation on the ownership change to DOH and PHHPC for consideration.
Amended PHL § 2801-a to require the current operator and applicant provide notice of the application to residents and their representatives within 30 days of DOH’s acknowledgment of the ownership change application. Immediate notification by the current operator and applicant must also occur when the application is scheduled for consideration before PHHPC.
Amended PHL § 2803-x to require nursing home operators notify LTCOP (and residents and their representatives) at least 90 days prior to entering into any new common or familial ownership of any corporation, or other entity or individual providing services to the operator of the facility. The new law further required nursing home operators to notify LTCOP at least 90 days prior to executing a letter of intent or other contractual agreement related to the consulting, operations, staffing agency or other entity to the involved in the operations of the facility.
The intention behind these legislative changes was to ensure residents have a voice in these ownership transfers, related party transactions, and other contractual agreements, some of which have been used by certain nursing home operators to divert resources away from direct resident care (10).
With proper state investment for NYS and Regional LTCOP to hire and retain staff ombudsmen, supplemented by volunteers, LTCOP can: provide meaningful input to PHHPC on the ownership change applications; inform, educate, and empower residents and their representatives on submitting comments to DOH/PHHPC on ownership changes; and inform, educate, and empower residents and their representatives to be proactive in addressing any concerns with the operator and contracted business entities.
Absent State investment in LTCOP to hire more staff ombudsmen, these legislative changes are in effect meaningless.
Thank you for the opportunity to testify today on this important program. I am available to answer any questions and to provide additional information.
Lindsay Heckler, MPH
Supervising Attorney Center for Elder Law & Justice
(716) 853-3087 x212
1 See i.e. https://oig.hhs.gov/oei/reports/OEI-01-18-00250.pdf .
2 Federal regulation 42 CFR § 483.15(c)(3)(i) and NYS PHL § 2803-z require nursing homes send copies of facility initiated (i.e. involuntary) transfer/discharge notices to LTCOP.
3 For additional information on the notice requirements, see CMS State Operations Manual Appendix PP at F623 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf
4 Note: not every case made it to the hearing/appeal level, many included counsel and advice on discharge planning, Medicare, Medicaid, and other related legal issues.
5 https://aging.ny.gov/system/files/documents/2023/01/ltcop-complaints-ffy-2022-quarter-3.pdf
6 Note: issues surrounding problems with Medicare coverage of skilled nursing and therapy services and inappropriate denials is outside the scope of this hearing. For additional information, see https://medicareadvocacy.org/medicare-info/improvement-standard/
9 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c03pdf.pdf - https://www.cms.gov/regulations-and-guidance/guidance/manuals/downloads/som107c05pdf.pdf
10 See for example: https://medicareadvocacy.org/nursing-homes-addressing-the-worst-operator-behaviors-under-existing-law/ ; https://www.empirecenter.org/publications/report-documents-growing-use-of-related-companies-by-new-yorks-nursing-home-operators/ and https://www.npr.org/sections/health-shots/2023/01/31/1139783599/newyork-nursing-home-owners-drained-cash
