The Nursing Home Crisis in Light of the Covid-19 Pandemic

 Our Firm has seen the devastation that the COVID-19 pandemic has had on nursing homes and their patients.  We represent nursing homes, however we also represent individuals residing in said facilities, and all have been emotionally, socially, and financially impacted by this crisis.  Limitations on visitation have negatively impacted the mental and physical health of the residents and their families.  For many months, people were unable to visit with their loved ones, were frightened that they were alone, and concerned if they were receiving the appropriate care.  On the nursing homes’ end they had an unprecedented number of deaths, insufficient staff, and were unable to access the necessary equipment to properly protect their employees.  The nursing homes attempted to put any and all practices in place to reduce these tragedies.

Since the beginning of the COVID-19 pandemic it is estimated that there have been 9,244 deaths of residents at long term care facilities (as of 2/1/2021).  The New York State Office of the Attorney General has been conducting ongoing investigations into the complaints of residents and their family members with regard to various nursing homes.  There have been over forty (40) different bills drafted to attempt to rectify the problems that arose out of this nursing home crisis.  The New York State Bar Association Elder Law Section has made this legislation and the overhaul of long term care facility reform a priority.  For many years there was evidence of the need to make changes, the pandemic brought it to the forefront.

We see on a daily basis the difficulty that families continue to face to see their loved ones residing in facilities.  For those who are able to get over the hurdles of the testing and compliance requirements, and are permitted to visit, the resident cannot be within six feet of such visitors.  The direct benefit to a resident’s physical and emotional well-being as a result of contact and care by a loved one cannot be understated.  Residents were previously routinely visited by loved ones who provided care and contact that enhanced their quality of life.  The people who wish to visit and care for their loved ones were also distressed due to the lack of contact.  The now apparent long-term nature of the pandemic requires action to allow residents and their families certain rights.

The four (4) initial legislation bills that will hopefully make it to the forefront of the change are below:

  • A108/S1168 Safe Staffing for Quality Care Act:
    • Assembly status: reported out of the Health Committee to the Codes Committee on 2/2/2021
    • Senate status: currently in the Health Committee
  • A1052B/S614B- Visitation Bill
    • Assembly: on Floor calendar (amended on third reading)
    • Senate: on Floor calendar (2nd report calendar)

This bill is proceeding to the full chamber vote:

  • A196/S1576: Relates to Violations of Safety Conditions in ACFs:
    • Currently in both Health Committees
  • A4309/S3055: ADL Bill (would undo some of the harms caused under the prior budget)
    • Currently in both Health Committees

We are hopeful that with the vaccinations to the nursing home residents, and the expanded distribution of vaccinations that we will begin to see improvements.  We will continue to update our clients as to any changes in legislation or nursing home reform as we optimistically anticipate there will be significant improvement in 2021.

Tammy Lawlor, Esq., Partner


Major Changes to Medicaid Eligibility for Community Based Long Term Care

Many New Yorkers look to the Medicaid program for coverage of their health care expenses.  For those eligible, Medicaid covers a wide array of health care services, making access to health care more available to residents.  Due to the high cost of long term care, many New York residents apply for Medicaid to assist with the cost of home care or nursing home care.

While many are aware of the five year “look-back” period with regard to eligibility for Medicaid covered nursing home care, there was no “look-back” period for those seeking Medicaid covered long term care services in the community (for example, home care or private duty nursing).  Those seeking this type of coverage were only required to submit current financial statements to the local Department of Social Services to evaluate eligibility for Medicaid.  Any transfers made prior to the month of application had no effect on eligibility.

However, the 2020-2021 New York State Budget that was passed provides that effective October 1, 2020, individuals seeking Medicaid covered long term care services in the community will need to provide two and a half years of financial statements to their local Department of Social Services for review.  Any non-exempt transfers made for less than fair market value will result in a penalty period, or a period of time during which you will not be eligible for Medicaid.

While the implementation date has officially been pushed back to July 1, 2021, it is probable that it will be pushed back through the end of the year due to the likelihood of the public health emergency lasting through 2021.

Useful links for income and resource standards for 2021:

GIS 20 MA/13 – effective January 1, 2021 – 2021 Medicaid Levels and Other Important Updates

New York City Human Resources Administration 2021 NYS Income and Resource Standards and Federal Poverty Levels (FPL)

Elizabeth Murphy, Esq., Senior Associate


Changes to the New York State Power of Attorney Law

The Power of Attorney is an extremely useful and essential estate planning document to be used when a principal cannot be present, or in the event of unexpected unavailability.  On December 15, 2020, Governor Cuomo signed into law several long-awaited changes to the New York State Power of Attorney regulations.  These changes will take effect on June 13, 2021.  The changes are meant to simplify the current challenging process of executing and enforcing a Power of Attorney and to reduce the likelihood that a third party will reject a Power of Attorney.  The major changes are as follows:

  • The Power of Attorney only has to “substantially conform to the wording” of the Statutory form.  This language replaces the requirement that the Power of Attorney matches the “exact wording” of the Statutory form.
  • The Statutory Gifts Rider is eliminated.  Any provisions with respect to gifting will now be included in the Modifications section.
  • A Power of Attorney can be signed at the direction of the Principal if the Principal is physically unable to sign.
  • Witness requirements are simplified.  Two individuals, who are not named in the Power of Attorney as agents or as permissible recipients of gifts, can witness the instrument.  One of the witnesses can also act as the Notary.
  • Third parties cannot refuse to honor a Power of Attorney without reasonable cause when it is properly executed.  A Court may award damages, including reasonable attorney’s fees and costs, if the Court finds that a third party acted unreasonably in refusing to honor a Power of Attorney.

The new Power of Attorney law will not invalidate a Power of Attorney that was properly executed prior to the effective date of the above-referenced changes.  A Power of Attorney executed prior to June 13, 2021 will still be valid as long as it was properly executed under the prior law.

Sara O’Connor, Esq., Associate