NY Falls Short on Nursing Home Enforcement, State Senator Says

New York is among the top 10 states with the greatest number of nursing homes. But according to one state senator, the Empire State isn’t doing enough to enforce its existing regulations for standards of care — and needs new legislation to bring nursing homes up to speed.

State Sen. Robert Ortt, a Republican whose 62nd District covers upstate Niagara County and other adjacent areas, recently announced a package of three bills — two of which have been introduced as New York’s legislative session kicks off. Senate Bill 112 would set a moratorium on nursing home purchases by owners whose facilities have standards violations or compliance issues, while SB 113 would require 40% of nursing home inspections to be conducted outside business hours. The bill latter also would ban employees of New York’s Department of Health (DOH) from giving any advance notice of inspections to nursing homes.

The third bill, which is awaiting a new legislative sponsor, would bolster the DOH’s regulatory enforcement capabilities and require independent quality monitors in nursing homes deemed to be failing.

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Skilled Nursing News spoke with Sen. Ortt about the bills and the problems New York faces in enforcing regulations in nursing facilities.

Can you talk about what prompted you to introduce this package of bills?

Over the course of my four years in the New York State Senate, I received calls from family members as well as staff about their loved one in a facility, or they worked in a facility, and there were issues. They ran the gamut; sometimes it was more workforce issues, sometimes it was patient-care related, but over time you began to develop a pattern even at different facilities and at different parts of my district.

I had begun to meet with members of a family council at a facility in my district in Orleans County. These folks all had loved ones in a facility and had very specific and very documented complaints and issues. And that was what set them apart for me. It wasn’t just one person that I was going off of hearsay or an anecdotal story. They had pretty specific, documented issues that they were raising with me.

In some ways, it’s challenging because as a legislator you don’t have any direct enforcement. It’s not like I’m a law enforcement official. But as more came to light to me, it became apparent that this was really an issue. No matter who I would speak to, even randomly if I was talking to people that I knew or friends, this issue would come up. It just got to the point where I thought: “Maybe this does need to be looked at, or maybe we need to look at changes in laws.” And that came about in discussions with this family group, because they outlined some issues where you started to go, “All right: that we should be able to do something about.”

There would be issues like when the inspections are being done. I came to understand that the inspections were being done during normal business hours, and that it appeared that they had advance notice. Now, I don’t know if it was significant advance, but the feeling was that facilities put on a show with their best foot forward, so to speak, when the inspections are being done.

If the goal is to actually ascertain and get a real feel for what these facilities are like and what kind of care is happening, then I would think you have to do varied inspections. You would have to do nights and weekends to get a good picture of what the residents and the family members are experiencing. And I don’t think that’s happening right now.

Do you know how the proposed requirement that 40% of nursing home inspections be outside business hours compares to what’s happening in New York now?

No. I tried to ascertain that information from the DOH. They claim that they do do that now.

They certainly have the ability to do that, but when I inquired as to whether they could give when the inspections were done on the facilities in my district, just to show that [they were done] in a varied way, I received no response. So all I can go off of is the families and staff in the facilities, because I have not received it.

Now I am sure the DOH doesn’t have excess staff, and I’m sure that to do it on nights and weekends would require overtime, or be very challenging from a scheduling standpoint. But the families and patients in these facilities deserve facilities that are meeting the standards of care. And unless you do the inspections in a way that really holds them accountable, then you’re not going to get that.

That’s how that bill came out. Obviously The Buffalo News and the media coverage showed to me that it’s not just happening just in my district, but all over western New York, and in fact probably all over the state and even the country. [

When it comes to the violations and compliance issues that could keep an owner from purchasing a nursing home, what kind of scale and severity would they have to be?

Some of that would be left to the DOH to weigh that, and certainly some of that could be negotiated or fleshed out. The fact of the matter is that there were continued purchases by some of the same individuals that already owned homes that were some of the worst in the state by the state’s own analysis, and the state’s own standards. And yet they were allowed.

It’s one thing if there’s a bad actor, but it’s another thing if you’re not doing your job to prevent that bad actor from having a larger influence on people, right? If you’ve got a guy that owns, or a group that owns, two or three nursing homes and they’re not doing what they’re supposed to be doing and they’re habitually receiving violations and complaints, why would we allow that individual or group to buy more nursing homes? Because we have no reason to believe that the standard of care will be any better or be any different.

Does the DOH in NY decide whether or not an owner is cleared to make a purchase?

Yes.

If the DOH is already struggling to do that…

Well, they’re not struggling, they’re just not making the right decision. So what you do is you put it in a statute. There’s a major difference between something being in law and being a practice or the executive agency strives to do this. That’s very different. All you’ve got to do is make the effort. There’s no current law.

I have no problem with people making money or providing a service but if you’re going to go into the restaurant business, you’ve got to comply with the health standards when you’re serving food, and if you don’t want to do that, don’t go into the restaurant business. If you’re going to go into the nursing home business and you’re going to get billions across the country of taxpayer money, you’ve got to provide the right kind of care. If you’ve shown a pattern of not providing that kind of care, then I think we should say, “We don’t welcome any additional purchases by you of additional nursing facilities.”

To clarify, there’s no current law in New York that requires a hold on owners purchasing properties if their existing homes have compliance issues?

No. None that I’m aware of, at all. The only thing I know that happens is basically the department reviews the application for purchase or reviews the pending purchase agreement, and then makes a determination — based on, I’m sure a variety of factors — but there’s nothing in law that does what I’m saying.

There can be a degree, obviously — if you have a nursing facility that had a violation [where] they didn’t have name plates on some of their staff or something small, that can be weighed. But I guess my point is right now, there is nothing. You could have the most significant violation, and there’s nothing.

What I want is clarity. For prospective individuals who are coming here to buy a bunch of nursing homes for the sole sake of making as much money as they can while putting very little money into these facilities and providing substandard care, we want to send a message that you are not welcome. If you want to come in here and provide a certain standard of care and buy the nursing home, great! If you don’t want to do that, we don’t want you here, and I don’t think there’s anything wrong with saying that.

Moving to the bill that doesn’t have a sponsor as yet, it would require independent monitors in a failing nursing home. Would those monitors be from the DOH, or from some other entity?

That would be a third-party entity, that would be hired or contracted with the facility to make sure that they are actually doing what they are supposed to be doing. In many cases, when you have a failing nursing home and the DOH comes in, there’s a corrective action plan that the facility and the DOH come up with and that the facility agrees to. One of the focuses of the independent quality monitors would be that the facility actually makes good on their corrective action plan.

If the facility is the one paying for the monitor, wouldn’t the monitor have an incentive to make the facility happy?

Well, someone’s going to have to pay it, and I’m not going to put it on the taxpayers. If you hired an engineering firm, they have a license and they have a brand they want to protect. And so if you hired an auditor to do a financial audit, they’re not going to lie, because if they do, that’s as much a black mark against them. This already exists, the model exists. You bring in a third-party financial audit firm, they audit your books and they give you a report which is public record to make sure that you’re doing what you’re supposed to be. Now they could only go off of the info you give them but again, that’s on the facility.

So the model is really taken from the financial sector in a way where you hire a third-party firm, and they come in and they do an audit. There’s a reason they’re a third-party firm. They’re being hired and they’re going to get paid no matter what to do the work. It’s not contingent upon them saying nice things about the facility.

That same bill also mentions increasing the fines on nursing homes that fail to meet state standards. By how much would it raise the penalties?

This is yet to be determined. My guess is we would have some kind of a sliding scale. But you have to hit ’em in the pocketbook because that seems to be what’s the most effective, and you need to do it consistently, when there’s violations and especially if they’re not following their own guidelines or their own corrective action.

Taken altogether, what does this package of bills add to enforcement that wasn’t there before?

The state has an obligation to hold nursing facilities and groups that own nursing facilities accountable. It’s not enough to say: These are the laws. You have to have strict and regular enforcement, and there needs to be teeth to it. If the facilities know there is no enforcement, or they only come during these hours, or they’re only here for an hour, or they’re coming tomorrow, or it’s a small fine, no big deal — then you’re not going to change behavior.

From the coverage in the news, and what I’ve heard from constituents, we need to change behavior in a lot of these facilities. This isn’t a solution in search of a problem. There’s a problem.

There’s also other legislation out there that would create a minimum staffing ratio in nursing facilities and hospitals. Now I think that’s too broad, that’s too heavy-handed, and actually would have a deleterious effect on a lot of local rural hospitals or maybe even nursing facilities where they would close, because it would blow a hole in their budgets.

I feel like this strengthens the enforcement. It maybe adds a few additional tools, and hopefully it sends a signal to folks that we are serious about the care our loved ones are getting in these facilities. We want to be fair, we want to work with you, but we also aren’t going to take any BS.

This interview has been condensed and edited.

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