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       1      BEFORE THE NEW YORK STATE LEGISLATURE:
              SENATE STANDING COMMITTEE ON HEALTH,
       2      SENATE STANDING COMMITTEE ON AGING,
              SENATE STANDING COMMITTEE ON INVESTIGATIONS &
       3      GOVERNMENT OPERATIONS,
              ASSEMBLY STANDING COMMITTEE ON HEALTH,
       4      ASSEMBLY STANDING COMMITTEE ON AGING, and
              ASSEMBLY STANDING COMMITTEE ON OVERSIGHT, ANALYSIS &
       5      INVESTIGATION
             -----------------------------------------------------
       6
                         VIRTUAL JOINT PUBLIC HEARING:
       7
                RESIDENTIAL HEALTH CARE FACILITIES AND COVID-19
       8           NEW YORK CITY, LONG ISLAND, AND WESTCHESTER

       9     -----------------------------------------------------

      10                                 Date:  August 3, 2020
                                         Time:  10:00 a.m.
      11

      12      PRESIDING:

      13      Senator Gustavo Rivera
              Chair, Senate Standing Committee on Health
      14
              Senator Rachel May
      15      Chair, Senate Standing Committee on Aging

      16      Senator James Skoufis
              Chair, Senate Standing Committee on Investigations &
      17      Government Operations

      18      Assemblymember Richard N. Gottfried
              Chair, Assembly Standing Committee on Health
      19
              Assemblymember Harry B. Bronson
      20      Chair, Assembly Standing Committee on Aging

      21      Assemblymember John T. McDonald III
              Chair, Assembly Standing Committee on Oversight,
      22      Analysis & Investigation

      23

      24

      25









































                                                                   2
       1      SENATE MEMBERS PRESENT:

       2      Senator Allesandra Biaggi

       3      Senator George M. Borrello

       4      Senator Phil Boyle

       5      Senator David Carlucci

       6      Senator Patrick M. Gallivan

       7      Senator James Gaughran

       8      Senator Andrew Gounardes

       9      Senator Pamela Helming

      10      Senator Brad Hoylman

      11      Senator Todd Kaminsky

      12      Senator Andrew J. Lanza

      13      Senator Betty Little

      14      Senator John C. Liu

      15      Senator Jen Metzger

      16      Senator Monica R. Martinez

      17      Senator Thomas F. O'Mara

      18      Senator Patty Ritchie

      19      Senator Luis R. Sepulveda

      20      Senator Sue Serino

      21      Senator Toby Ann Stavisky

      22      Senator James Tedisco

      23      Senator Kevin Thomas

      24

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                                                                   3
       1      ASSEMBLYMEMBERS PRESENT:

       2      Assemblymember Thomas J. Abinanti

       3      Assemblymember Jake Ashby

       4      Assemblymember Edward C. Braunstein

       5      Assemblymember Kevin M. Byrne

       6      Assemblymember Marjorie Byrnes

       7      Assemblymember Kevin A. Cahill

       8      Assemblymember Steven Cymbrowitz

       9      Assemblymember Joe DeStefano

      10      Assemblymember Inez Dickens

      11      Assemblymember Charles D. Fall

      12      Assemblymember Nathalia Fernandez

      13      Assemblymember Sandy Galef

      14      Assemblymember Andrew R. Garbarino

      15      Assemblymember Aileen M. Gunther

      16      Assemblymember Ellen Jaffee

      17      Assemblymember Mark Johns

      18      Assemblymember Billy Jones

      19      Assemblymember Ron Kim

      20      Assemblymember Nicole Malliotakis

      21      Assemblymember Brian Manktelow

      22      Assemblymember David G. McDonough

      23      Assemblymember Melissa Miller

      24      Assemblymember Michael Montesano

      25      Assemblymember Amy Paulin









































                                                                   4
       1      ASSEMBLYMEMBERS PRESENT (continued):

       2      Assemblymember Michael Reilly

       3      Assemblymember Linda B. Rosenthal

       4      Assemblymember John Salka

       5      Assemblymember Doug Smith

       6      Assemblymember Michaelle C. Solages

       7      Assemblymember Al Taylor

       8

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                                                                   5
       1
              SPEAKERS:                               PAGE  QUESTIONS
       2
              Howard Zucker                             27      45
       3      Commissioner
              NYS Department of Health
       4
              Garrett Rhodes                            27      45
       5      Deputy Superintendent and
                Special Counsel
       6      NYS Department of Financial Services

       7      Neil Heyman                              167     179
              CEO
       8      Southern New York Association

       9      Michael Balboni                          167     179
              Executive Director
      10      Greater New York Health Care
                Facilities Association
      11
              Judy Farrell                             248     258
      12      Director, Long-Term-Care Ombudsman
              Tri County Long-Term Ombudsman Program
      13
              Richard Mollot                           248     258
      14      Executive Director
              Long Term Care Community Coalition
      15
              Roxanne Tena-Nelson                      307     322
      16      Interim President
              Continuing Care Leadership Council
      17
              Lisa Newcomb                             307     322
      18      Executive Director
              Empire State Association of
      19        Assisted Living

      20      John Auerbach                            307     322
              President and CEO
      21      Trust for America's Health

      22      Alexa Rivera                             344     367
              Co-Founder
      23      Vivian Rivera-Zayas                      344     367
              Co-Founder
      24      Grace Colucci                            344     367
              Member
      25      Voices for Seniors









































                                                                   6
       1
              SPEAKERS (continued):                   PAGE  QUESTIONS
       2
              Kathleen Webster                         344     367
       3      Member
              Neighbors to Save Rivington House
       4
              Lenore Solowitz                          344     367
       5      Resident
              Garnerville, NY
       6
              Judy Johnson                             401     428
       7      Registered Nurse, Rockland Nursing Home
              Member of the NYS Nurses Association
       8
              Milly Silva                              401     428
       9      Executive Vice President,
                1199 SEIU Nursing Home Division
      10      United Healthcare Workers East

      11      Eric Fogle                               401     428
              1199 SEIU Member
      12      Activities Aide at Holliswood Center

      13      Tyresse Byers                            401     428
              1199 SEIU Member
      14      Certified Nursing Assistant at
                Sarah Neumann Nursing Home
      15
              Nicole Whittaker                         401     428
      16      1199 SEIU Member
              Certified Nursing Assistant at
      17        Berkshire Nursing and Rehab Facility

      18      Pat Tursi                                486     499
              Chief Executive Officer
      19      Elizabeth Seton Children's Center

      20      Rachel Amar                              486     499
              Parent of a Patient at
      21      Elizabeth Seton Children's Center

      22      Edwin Simpser, M.D.                      486     499
              President and CEO
      23      St. Mary's Healthcare System for Children

      24

      25









































                                                                   7
       1
              SPEAKERS (continued):                   PAGE  QUESTIONS
       2
              Beth Finkel                              533     544
       3      New York State Director
              AARP
       4
              Judith Grimaldi                          533     544
       5      Member of Elder Law Section
                Task Force
       6      NYS Bar Association

       7      Susan Dooha                              553     574
              Executive Director
       8      Center for Independence of the Disabled

       9      Brian O'Malley                           553     574
              Executive Director
      10      CDPAANYS

      11      Faigie Horowitz                          553     574
              Director of Marketing & Communications
      12      Caring Professionals, Inc.

      13      Claire Altman                            553     574
              President
      14      Altman Strategies, LLC

      15      Daniel Ross                              594     611
              Staff Attorney
      16      Mobilization for Justice Legal

      17      Dr. Tara Cortes                          594     611
              Clinical Professor at NYU, and
      18        Executive Director of
                The Hartford Institute for
      19        Geriatric Nursing

      20      Geoff Lieberman                           594    611
              Executive Director
      21      Coalition of Institutionalized Aged
                and Disabled
      22

      23

      24

      25









































                                                                   8
       1             SENATOR RIVERA:  Good morning, everyone.

       2             This is State Senator Gustavo Rivera, from

       3      33rd District in The Bronx, Chair of the Health

       4      Committee in the New York State Senate.

       5             And I want to welcome all of you to these

       6      hearings, which will be -- begin a series of

       7      hearings this week and next week on the impact of

       8      COVID-19 in different aspects of our state.

       9             And today we are talking about nursing homes

      10      and home-care settings.

      11             And I will be very brief in my introductory

      12      remarks, and just say that this hearing is both

      13      about accountability, as well as determining what

      14      happened, so that we can make sure that, going

      15      forward, it does not happen again.

      16             Want to make sure that we save lives, and by

      17      changing policy might be able to do that.

      18             And that is what these hearings are about.

      19             We are joined by many of my colleagues, and

      20      I will recognize all of the Senate members now, and

      21      then pass it to the Assembly.

      22             We are joined by my Co-Chairs:  Rachel May,

      23      from -- who is the Chair of Aging, as well as

      24      Senator James Skoufis, who is the Chair of

      25      Investigations.









































                                                                   9
       1             We are also joined by Majority Members

       2      David Carlucci, John Liu, Andrew Gounardes,

       3      Kevin Thomas, Allesandra Biaggi, Toby Stavisky,

       4      Monica Martinez, Brad Hoylman, Jen Metzger,

       5      Luis Sepulveda, and Todd Kaminsky.

       6             And we are joined by Minority Health Ranker,

       7      Patrick Gallivan; Aging Ranker, Senator Sue Serino;

       8      Investigations Ranker, Senator Tom O'Mara; as well

       9      as Senators Pat -- Pam Helming, Jim Tedisco,

      10      Patty Ritchie, Betty Little, and George Morrello,

      11      from the Minority.

      12             And my -- now to my Co-Chair in the Assembly,

      13      Assemblymember Richard Gottfried.

      14             SENATOR LANZA:  Chairman, Andrew Lanza here

      15      as well.

      16             SENATOR RIVERA:  Oh.  Thank you,

      17      Senator Lanza.

      18             SENATOR GAUGHRAN:  And Jim Gaughran here.

      19             SENATOR RIVERA:  Gaughran and Lanza.

      20             ASSEMBLYMEMBER GOTTFRIED:  Okay, before I do

      21      go through some procedures, Harry Bronson, Chair of

      22      our Aging Committee, will announce all the

      23      Assemblymembers who are here, on both sides.

      24             ASSEMBLYMEMBER BRONSON:  Thank you,

      25      [indiscernible] Gottfried.









































                                                                   10
       1             I will announce assemblymembers from both

       2      sides.  The order is, basically, what I'm seeing on

       3      the participant screen, so bear with me.

       4             But first we have Ranker of Health,

       5      Kevin Byrne; the Ranker of Aging, Jake Ashby; and

       6      the Ranker of Oversight, Brian Manktelow.

       7             Other members:

       8             Assemblymember Edward Braunstein is with us;

       9      Assemblymember Marjorie Byrnes; Kevin Cahill;

      10      Steven Cymbrowitz; Joe DeStefano; Charles Fall;

      11      Assemblymember Fernandez; Assemblymember Galef;

      12      Andrew Garbarino; Aileen Gunther; Ellen Jaffee;

      13      Assemblymember Mark Johns; Assemblymember Jones,

      14      Assemblymember Ron Kim;

      15      Assemblymember Nicole Malliotakis;

      16      Assemblymember Dave McDonough;

      17      Assemblymember Missy Miller; Mike Montesano;

      18      Assemblymember Amy Paulin; Michael Reilly;

      19      Assemblymember Linda Rosenthal;

      20      Assemblymember Doug Smith; Assemblymember Solages;

      21      Assemblymember Taylor.

      22             And I believe I've caught all assemblymembers

      23      who are with us today.

      24             ASSEMBLYMEMBER GOTTFRIED:  Okay.  Thank you.

      25             Okay, I'm just going to run through some









































                                                                   11
       1      procedural points.

       2             This will be a very long hearing.

       3             And so, every 3 hours or so, we will take a

       4      10-minute break for what the Health Committee calls

       5      "ambulation and toileting."

       6             Opening remarks will be limited to our

       7      committee chairs and ranking members, and limited to

       8      two minutes, each.  People should feel free to take

       9      a pass on opening remarks.

      10             Witness testimony will be limited to

      11      5 minutes, each; a limit that will not apply to the

      12      Health Commissioner.

      13             Question-and-answer time will be limited to

      14      5 minutes per panel for committee chairs and

      15      rankers, and 3 minutes for other committee members.

      16             Committee members may also submit written

      17      questions to -- to us, which will be forwarded to

      18      the appropriate witness, asking that the witness

      19      respond within three weeks.

      20             Each witness will be asked to swear or affirm

      21      that the testimony he or she is about to give is

      22      true.

      23             But since the notice for the swearing in was

      24      not included in the hearing notice for this hearing,

      25      if a witness declines to swear or affirm, the









































                                                                   12
       1      witness may testify anyway, and we will note that

       2      for the record.

       3             That's it.

       4             SENATOR RIVERA:  Thank you,

       5      Assemblymember Gottfried.

       6             And now for some brief introductory remarks,

       7      Senator James Skoufis, Chair of Investigations.

       8             Can't hear you, James.

       9             ASSEMBLYMEMBER GOTTFRIED:  Someone has to --

      10             SENATOR SKOUFIS:  That was bound to happen to

      11      someone.

      12             SENATOR RIVERA:  Yes.

      13             SENATOR SKOUFIS:  But, thank you,

      14      Mr. Chairman.

      15             Good morning, everyone.

      16             And as you noted, welcome, everyone, to the

      17      first of two legislative hearings on the State's

      18      response to the COVID-19 public health crisis in

      19      residential care facilities.

      20             Partnering with the Health and Aging

      21      committees, the Senate Investigations and Government

      22      Operations Committee looks forward to engaging with

      23      today's witnesses.

      24             The past four months have tested the very

      25      fiber of our state's being.









































                                                                   13
       1             In so many regards, New York and New Yorkers

       2      rose to the occasion, sacrificing our livelihoods to

       3      save our and our neighbors' lives.

       4             Families didn't leave their homes for months

       5      on end.  The entire economy shut down.  And spending

       6      time with loved ones was replaced with painful

       7      physical separation.

       8             As we all know too well, however, death was

       9      prevalent and harrowing, and no place more so than

      10      in our state's nursing homes.

      11             Over 6,000 residents have perished so far

      12      from COVID-19, a previously unimaginable figure, and

      13      a number that we know is an undercount.

      14             Governor Cuomo has rightfully described the

      15      virus ripping through nursing homes as a, quote,

      16      fire through dry grass, unquote.

      17             It's now up to the legislature to determine

      18      who lit the match, and understand how and why the

      19      fire fanned out.

      20             To that end, let me make something

      21      crystal-clear to all of our participants here at the

      22      onset:  Check your politics at the door.

      23             Over 6,000 of our most vulnerable neighbors

      24      died in nursing homes.  Tens of thousands of

      25      additional New Yorkers were taken from us.









































                                                                   14
       1             Attempts to score cheap political points

       2      disgraces those lives lost and distracts from our

       3      genuine effort to understand what happened.

       4             Our loyalty today must be to the truth, and

       5      nothing but the truth.

       6             I look forward to today's testimony.

       7             Thank you.

       8             SENATOR RIVERA:  Thank you, Senator Skoufis.

       9             Now for our Senate Chair on Aging,

      10      Senator Rachel May.

      11             SENATOR MAY:  Thank you, Chair Rivera.

      12             And greetings from the 53rd Senate District

      13      in Syracuse and Central New York.

      14             I am grateful to my colleagues in the Senate

      15      and Assembly leadership, and staff, for making these

      16      hearings possible.

      17             As Chair of the Committee on Aging, I began

      18      pushing for hearings back in May, as did the

      19      Majority Leader, and I'm very glad they are

      20      happening.

      21             On March 2, the legislature voted to give

      22      extraordinary powers to the Executive to respond to

      23      the pandemic.

      24             Like nearly all my Democratic and Republican

      25      colleagues, I voted for that, because we were









































                                                                   15
       1      already anticipating the need for rapid and decisive

       2      action.

       3             And I believe the Executive has used those

       4      powers appropriately in most cases.

       5             But it's also necessary that we maintain an

       6      oversight role and hold the administration

       7      accountable for its actions.

       8             I see these hearings as having two main

       9      goals.

      10             First, to get answers for those who have lost

      11      loved ones, about the decision-making process, and

      12      the precautions that were or were not taken to

      13      prevent the loss of life.

      14             This, I believe, will be the focus of my

      15      colleagues in the Investigations Committee in

      16      particular.

      17             The second goal, and the one that I will

      18      focus on, is to make sure that we have the right

      19      policies and protocols in place now to protect the

      20      lives and well-being of residents and staff at

      21      nursing homes, moving forward.

      22             Thank you to all who have agreed to testify.

      23             I look forward to learning from what you have

      24      to say.

      25             SENATOR RIVERA:  Thank you, Senator May.









































                                                                   16
       1             Now on to the Assembly.

       2             Assemblymember Gottfried.

       3             ASSEMBLYMEMBER GOTTFRIED:  Well, I've already

       4      done my opening remarks.

       5             I guess we can go to Harry Bronson.

       6             ASSEMBLYMEMBER BRONSON:  Thank you,

       7      Chair Gottfried.

       8             And thank you, all, for being here today.

       9             The impact of COVID-19 has been unprecedented

      10      for our families.

      11             It's affected every aspect of their lives,

      12      especially in the area of health, and in their

      13      ability to provide for their families because of the

      14      downturn in the economy.

      15             These are difficult times, but I'm confident

      16      we will get through this together; supporting and

      17      caring for each other.

      18             That said, we must rely on the science and

      19      the medical understanding as we develop policy to

      20      keep our loved ones safe, including the residents

      21      and employees in our nursing homes.

      22             Today I look forward to hearing from

      23      stakeholders about, what has happened to date, and

      24      what measures we might take as we prepare for the

      25      possible onslaught of a second wave of COVID.









































                                                                   17
       1             Thank you again for participating today, and

       2      thank you all for moving us forward together.

       3             We will get through this if we care and

       4      support each other.  But we have do that by

       5      developing policies that are based in science and

       6      based in medicine.

       7             Today's hearing is about getting that

       8      information, and I look forward to hearing from each

       9      and every one of the witnesses.

      10             Thank you.

      11             SENATOR RIVERA:  Any [indiscernible] in the

      12      Assembly, Senator -- uh, Assemblymember Gottfried?

      13             ASSEMBLYMEMBER GOTTFRIED:  John, do you want

      14      to make opening remarks, John --

      15             ASSEMBLYMAN McDONALD:  Very briefly.

      16             Good morning, everybody.

      17             Thanks to everybody for their participation

      18      today.

      19             We know that COVID-19 is a, hopefully,

      20      once-in-a-lifetime experience.

      21             Although much preparation has always been in

      22      place over the years, it's when you actually take

      23      those plans and put them into action that we have an

      24      opportunity to see where we were successful, and

      25      where we can build upon.









































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       1             I look forward today to having a constructive

       2      conversation on what's worked, and where we can do

       3      better.

       4             And I thank my colleagues and the panelists

       5      today for their participation.

       6             SENATOR RIVERA:  On the Senate side, briefly,

       7      our Senate Ranker on Health, Patrick Gallivan.

       8             SENATOR GALLIVAN:  Thank you, Mr. Chairman.

       9             And good morning to everybody.

      10             We know that COVID-19 has had a devastating

      11      impact on the health and safety of New Yorkers.

      12             And one of the hardest-hit communities has

      13      been nursing homes across the state, and it just

      14      shouldn't have been that way.

      15             I believe many of my colleagues feel the

      16      same.

      17             On May 5th I called for hearings.

      18             I'm grateful that the Chair of the Health

      19      Committee in the Senate, Senator Rivera, and the

      20      other Chairs, have put this together.

      21             And I thank you for it.

      22             On May 6th the Senate Republicans called for

      23      independent hearings.

      24             And to Senator Skoufis's points, about the

      25      checking the politics at the door, I think we need









































                                                                   19
       1      to get to the bottom of what took place in nursing

       2      homes, it's inexcusable, to make sure that it

       3      doesn't happen again.

       4             And I am certainly hoping that the

       5      administration is cooperative in respecting the

       6      legislature in its role as an independent body, and

       7      really cares -- really works to care about what goes

       8      on in nursing homes, and fix this, because it is

       9      problematic.

      10             Why were certain orders followed?

      11             Why is there still, seemingly, a lack of

      12      transparency?

      13             And why hasn't the State provided sufficient

      14      help in ensuring that nursing homes were prepared

      15      for this?

      16             Once we find those things out, of course, we

      17      turn to the future to make sure that it doesn't

      18      happen, so that we can be fully prepared.

      19             Thank you.

      20             SENATOR RIVERA:  All right, last on the

      21      Senate side, Aging Ranker, Senator Tom O'Mara -- I'm

      22      sorry, Investigations Ranker, Senator Tom O'Mara.

      23             SENATOR O'MARA:  Thank you, Senator Rivera.

      24             You gave me time to get my mic on.

      25             So I -- thank you for the opportunity to have









































                                                                   20
       1      these hearings today.

       2             You know, since the first cases in the

       3      United States, in the state of Washington, appeared

       4      in nursing homes, we knew how sensitive nursing

       5      homes were.

       6             As was stated earlier, Governor Cuomo said,

       7      nursing homes -- in getting COVID in a nursing home

       8      would be like throwing a match on dry grass.

       9             And that's exactly what we experienced, not

      10      just here in New York, but across the country, in

      11      our nursing homes, and what we saw even before cases

      12      came to the United States, from elder-care

      13      facilities across the world.

      14             I do want to note at the outset, while I look

      15      forward to getting as much information as we can out

      16      of these hearings today, the Minority Conferences on

      17      both sides of the aisle, both Conferences were not

      18      allowed the opportunity to call witnesses today.  We

      19      were not afforded the opportunity to subpoena any

      20      witnesses today.

      21             We will be following up on that for our next

      22      hearing on August 10th.

      23             We, hopefully, will get some accurate and

      24      real information today on what went on with these

      25      decision-making processes, from when visitors were









































                                                                   21
       1      first stopped from going into nursing homes, when

       2      nursing homes were required to take COVID-positive

       3      patients, and why nursing homes' staff was allowed

       4      to continue to work, while testing positive, in

       5      these matters.

       6             Hopefully, we get some good information on

       7      that today.

       8             But I would note that every witness

       9      testifying here today, to my understanding, is here

      10      voluntarily.  One has been subpoenaed to be here.

      11             And I think, if we're truly going have an

      12      investigation into this, that authority to subpoena

      13      witnesses and request witnesses should come from the

      14      Minority as well as the Majority.

      15             Thank you very much.

      16             SENATOR RIVERA:  Thank you, Senator O'Mara.

      17             Assemblymember Bronson, anybody else in the

      18      Assembly?

      19             ASSEMBLYMEMBER BRONSON:  We have the ranker

      20      members.

      21             Kevin Byrne.

      22             ASSEMBLYMEMBER BYRNE:  Thank you,

      23      Chairman Bronson.

      24             I want to first thank all the Chairs on the

      25      Assembly side, specifically, for agreeing to host









































                                                                   22
       1      this hearing.

       2             Like my Senate ranking colleagues mentioned,

       3      many of us across the global spectrum have been

       4      calling for hearings as early as late April and May.

       5      And many of the Chairs made public comments,

       6      supporting the sentiment for having public hearings.

       7             And I firmly believe in this because this is

       8      part of our job as state legislators.

       9             Certainly, we debate policy, we debate all

      10      sorts of things.

      11             But as it was note earlier, the governor and

      12      the administration has an incredible amount of power

      13      during declared disasters.

      14             And if we want oversight, it is not fair to

      15      simply rely on the department of health and the

      16      attorney general's office to do an investigation

      17      into this matter.

      18             The legislature has an obligation to also

      19      chime in, and to be a proper check for our system of

      20      government, and I think this is extremely important.

      21             So I want to thank them for agreeing to have

      22      this hearing.

      23             I will note that, I was pleased to see that

      24      the health commissioner was on this list.  Even

      25      though the subpoena power wasn't used, the fact that









































                                                                   23
       1      he is going to participate is something that I do

       2      appreciate.

       3             And I know we have lots of questions to ask,

       4      and we're going to, hopefully, dig deep into some of

       5      the details here, but that's because, you want to

       6      get to the truth, that's because you want to learn

       7      from any mistakes that were made.

       8             [Inaudible] losing over 30,000 lives in this

       9      state, more than any other state, is not something

      10      that we want to be known for.

      11             And we want to make sure that we're just

      12      prepared.

      13             So, again, I want to thank the Chairs and my

      14      colleagues for having this hearing, and I look

      15      forward just to getting down to business.

      16             Thank you.

      17             SENATOR RIVERA:  On the Senate side, my -- it

      18      was my mistake.

      19             I believe that Senator Sue Serino is now on

      20      the line, as the Ranking Member in Aging, for a

      21      brief statement.

      22             SENATOR SERINO:  Good morning,

      23      Mr. Chairman.

      24             And, I'm sorry, I had not hit the button to

      25      raise my hand.  I had lost connection.









































                                                                   24
       1             But I'm very happy that we are doing this

       2      today.

       3             I was one of the first legislators to call

       4      for this hearing.

       5             And New Yorkers deserve answers.

       6             I want to make it perfectly clear, that this

       7      is not about placing blame.

       8             It's about getting to the bottom of this

       9      highly gross death toll, and ensuring that the State

      10      does a much better job of -- going forward, if any

      11      of this were to happen again, of protecting our very

      12      vulnerable New Yorkers, and the people that have

      13      been taking care of them too.

      14             Facilities have kind of been an afterthought

      15      since day one, and it's time for them to be a

      16      priority.

      17             So I thank you, Mr. Chairman, for holding

      18      this hearing today, and I look forward to the

      19      questions and answers.

      20             Thank you very much.

      21             SENATOR RIVERA:  Thank you, Senator Serino.

      22             Assemblymember Bronson?

      23             ASSEMBLYMEMBER BRONSON:  Yes, I believe we

      24      have Ranker of Aging, Jake Ashby, for -- to say a

      25      few words.









































                                                                   25
       1             ASSEMBLYMEMBER ASHBY:  Thank you,

       2      Mr. Chairman.

       3             I want to express my gratitude to all of my

       4      colleagues on both sides of the aisle, and in --

       5      both in the Assembly and the Senate, for holding

       6      these hearings.

       7             I think it's imperative that we as

       8      legislators get out there and get these questions

       9      answered; but more so, you know, for us and our

      10      ability to shape policy, and also for the families

      11      out there that have been affected by this.

      12             I think there are many, many of my

      13      constituents in particular, and I know many across

      14      the state, that are searching for answers.

      15             So I'm grateful for the opportunity to

      16      participate in this hearing today, and get some

      17      answers for these people.

      18             And I'm hopeful that we can continue this

      19      process.

      20             Thank you.

      21             OFF-SCREEN SPEAKER:  May I speak?

      22             ASSEMBLYMEMBER BRONSON:  And, lastly, we have

      23      Ranker of Oversight, Brian Manktelow.

      24             ASSEMBLYMEMBER MANKTELOW:  Thank you,

      25      Mr. Chairman.









































                                                                   26
       1             And thank you, everyone, for allowing us to

       2      have this meeting today.

       3             It's great to be here, and great to,

       4      hopefully, get an understanding of, really, what

       5      happened.

       6             As leaders, we need to make decisions, moving

       7      forward.

       8             We can look at the past.  We can't change the

       9      past, but we can look at it.

      10             And I think it's imperative that we do look

      11      at the past, making sure, as we move forward as a

      12      state, as legislators, as the governor's office,

      13      that we do things the right way, or possibly

      14      changing things that didn't work quite so well.

      15             We do all this to those families and those

      16      loved ones that lost family members in those nursing

      17      homes.

      18             And I'm just looking forward to the

      19      testimony, and asking a few questions; helping us to

      20      better understand what went wrong, and where we look

      21      to go here in the future, if we do have a second

      22      wave, for sure.

      23             I thank you for allowing me to be here, and

      24      let's get on with this.

      25             Thank you.









































                                                                   27
       1             SENATOR RIVERA:  All right.  Thank you for

       2      that.

       3             We're going to move on to our first panel.

       4             We are joined by the commissioner for

       5      New York State Department of Health, Howard Zucker,

       6      and, the deputy superintendent and special counsel

       7      for the department of financial services,

       8      Garrett Rhodes.

       9             And I believe that there will be a

      10      presentation that they will be doing.

      11             If so, you can share your screen, and we can

      12      begin that.

      13             DR. HOWARD ZUCKER:  Just a second.

      14             SENATOR RIVERA:  Okay, we can see the Zoom

      15      screen, but we can't see your -- there you go.

      16             DR. HOWARD ZUCKER:  Good morning, members of

      17      the New York State Senate and Assembly committees.

      18             SENATOR RIVERA:  And if you could get -- I'm

      19      sorry -- oh, okay.  You're in a setting.

      20             Please make sure that you get close to your

      21      mic, because we couldn't hear you too well when you

      22      spoke there.

      23             Go ahead.

      24             DR. HOWARD ZUCKER:  Can you hear it now?  Is

      25      that good?









































                                                                   28
       1             Let's see what we can do here.

       2             We're working on that.  Give us a second.

       3             SENATOR RIVERA:  But keep it rolling, so that

       4      we can -- while we fix the mic situation, keep it

       5      rolling.

       6             DR. HOWARD ZUCKER:  Good morning, members of

       7      the New York State Senate and Assembly committees on

       8      Health; Aging; Senate Investigation and Government

       9      Operations; and the Assembly Oversight, Analysis,

      10      and Investigations.

      11             I'm Dr. Howard Zucker, New York State's

      12      Health Commissioner.

      13             And thank you for the opportunity to speak

      14      before you today.

      15             When I last spoke to you on January 29th, to

      16      discuss the executive budget, I spoke on the

      17      evolving public health threat called the "novel

      18      coronavirus."

      19             It was a name that hadn't been named yet.

      20             It was one month later that our Wadsworth

      21      laboratory confirmed New York's first case of

      22      COVID-19.

      23             What we now know, that it was already here.

      24             In the two weeks from that moment, we had

      25      implemented a series of aggressive actions to









































                                                                   29
       1      protect our most vulnerable populations.

       2             And those practices continue today, and will

       3      serve as a foundation, as we prepare these

       4      facilities for a second wave, and beyond.

       5             ASSEMBLYMEMBER GOTTFRIED:  Commissioner?

       6             DR. HOWARD ZUCKER:  [Indiscernible] --

       7             ASSEMBLYMEMBER GOTTFRIED:  Commissioner?

       8             DR. HOWARD ZUCKER:  -- more deaths in

       9      New York than we could have imagined --

      10             ASSEMBLYMEMBER GOTTFRIED:  Commissioner, may

      11      I interrupt you for a second?

      12             DR. HOWARD ZUCKER:  -- [indiscernible

      13      cross-talking] than we can bear.

      14             ASSEMBLYMEMBER GOTTFRIED:  Commissioner,

      15      I don't know if you can hear me.  Can I interrupt

      16      you for a second?

      17             I neglected to ask, whether you swear or

      18      affirm that the testimony you're about to give is

      19      true?

      20             DR. HOWARD ZUCKER:  I affirm that, yes.

      21             ASSEMBLYMEMBER GOTTFRIED:  Thank you.

      22             DR. HOWARD ZUCKER:  COVID-19 has caused more

      23      deaths in New York than we could have imagined and

      24      more loss of life than we can bear.

      25             We feel the losses in these nursing homes as









































                                                                   30
       1      a community, and we grieve with those who have lost

       2      loved ones during this pandemic, and during this

       3      time of disruption and fear and unrelenting stress.

       4             For all of those who have been touched

       5      personally by this terrible loss and this terrible

       6      virus, my heart goes out to you.

       7             Today is an opportunity for thoughtful

       8      dialogue of what we've learned, based on the

       9      science, and how we can apply those best practices,

      10      moving forward.

      11             First, some quick background.

      12             COVID has significantly changed how we live,

      13      not just in New York, but around the world.

      14             This pandemic has rapidly and dramatically

      15      altered our everyday lives: introducing social

      16      distancing, face mask-wearing, remote learning,

      17      business closures, and restrictions on visiting

      18      nursing homes and hospitals.

      19             Congregate settings, such as the 613 nursing

      20      homes we have here in New York, are particularly

      21      vulnerable to infectious diseases such as COVID.

      22             This has been a challenge nationwide since

      23      February 2020, when the first known case of COVID

      24      was identified in a nursing home resident in

      25      Kirkland, Washington.









































                                                                   31
       1             Now, I stress the phrase "known case"

       2      because, as we'll discuss this morning, COVID had a

       3      hold on New York State and its nursing homes much

       4      sooner than anybody knew.

       5             For context:

       6             The federal government issued a travel ban

       7      from China on February 2nd.

       8             But the virus didn't come to New York from

       9      China.  It came from Europe, and three million

      10      people flew from Europe to New York City.

      11             The CDC has acknowledged that the European

      12      travel ban, which was on March 13th, was too late.

      13      The virus had already reached community spread here

      14      in New York State.

      15             Now, we may never actually have the full

      16      picture of the impact of COVID in nursing homes

      17      nationally, or an accurate snapshot of how it's been

      18      reported in other states.

      19             When looking back at data from March and

      20      April, the CDC director, Dr. Robert Redfield, said,

      21      on June 25th, that the cause of 27 percent of all

      22      deaths in the United States, one in four, was

      23      recorded as pneumonia.

      24             And he went on to say, and I quote, and it's

      25      up there:  A lot of those pneumonias that were dying









































                                                                   32
       1      were actually COVID-infected individuals that were

       2      the elderly, nursing homes, and individuals with

       3      comorbidities.

       4             So we now know that, despite our best

       5      efforts, COVID continued to spread in nursing homes

       6      nationwide.

       7             And here in New York State, we restricted

       8      nursing home visitors, we ordered workers to be

       9      temperature-checked every day.  We implemented

      10      specific isolation and quarantine procedures for

      11      exposed and ill staff and residents.

      12             We built unprecedented systems for facilities

      13      to report real-time data to us.

      14             And to the extent practical, despite the fact

      15      that, as they say, "we were building the plane as we

      16      were flying it," we made that data available to the

      17      press and to the public on a daily basis.

      18             We launched the most aggressive nursing home

      19      testing program in the country, testing residents in

      20      613 nursing homes, and, directing the testing of all

      21      nursing home staff, which has led to more than

      22      one million tests and identified several thousand

      23      positive cases.

      24             We conducted 1300 on-site inspections --

      25      every single nursing home and adult-care facility in









































                                                                   33
       1      the state was inspected at least once -- to ensure

       2      that the infection-control practices were in place.

       3      And we supported these facilities by providing

       4      14 million pieces of PPE, connecting them to a

       5      staffing portal of more than 96,000 volunteers, and

       6      helping facilities transfer residents to other homes

       7      as needed.

       8             But when we saw the rise in nursing home

       9      deaths, like so many other states, I kept asking

      10      myself, what happened?

      11             What happened?

      12             And the "why" matters -- the "why" matters

      13      for New Yorkers, it matters for the nation, it

      14      matters to prevent it from happening again, and it

      15      matters to bring closure to all those families who

      16      lost somebody.

      17             So we looked at the admissions to nursing

      18      homes between March 25th and May 8th.

      19             There were 6326 COVID-positive patients that

      20      were admitted to nursing homes from hospitals during

      21      the time when COVID hospitalizations were rising.

      22             And what did we find?

      23             So, a few key facts I want to show you.

      24             The peak in nursing home fatalities was on

      25      April 8th.  The peak in admissions of COVID-positive









































                                                                   34
       1      hospital patients occurred on April 14th.

       2             So the question would be, which was,

       3      essentially, a week later:  Why does that matter?

       4             Well, if the March 25th guidance was the

       5      major driver in deaths, which some claim it to be,

       6      then the peak of admissions would precede the peak

       7      in deaths.

       8             That's just the mathematics, the statistics

       9      of it all.

      10             However, it occurred the other way around;

      11      the peak in deaths occurred before the peak in

      12      admissions.

      13             In fact, when you look at the curve, as the

      14      admissions of residents was increasing, the deaths

      15      were decreasing.

      16             So some would want to say, why is this so

      17      important?

      18             Well, it contradicts this false narrative

      19      that's circulating about regarding the March 25th

      20      guidance document.

      21             The false narrative is, that COVID-positive

      22      residents brought into the nursing homes from the

      23      hospitals.

      24             But we have to be objective here, and the

      25      data does not support that.









































                                                                   35
       1             The facts show, that 310 nursing homes

       2      admitted COVID-positive patients from hospitals, and

       3      of those 310, 304 already had COVID in their

       4      facility.

       5             It is unfortunate, it is sad, but it is true,

       6      that 98 percent of the nursing homes already had

       7      COVID in their nursing homes.  And those are the

       8      facts.

       9             Now, it causes me great pain, as a physician,

      10      and as the health commissioner in the state, to see

      11      the total number of COVID cases in Florida, in

      12      Texas, in California, as they have each surpassed

      13      New York.

      14             From May through July, COVID-related deaths

      15      in nursing homes more than doubled in Florida, they

      16      nearly doubled in California, and they tripled in

      17      Texas.

      18             Now, I sympathize with my public-health

      19      colleagues and my peers in those states who are

      20      experiencing the feelings of helplessness that we

      21      felt in March and April.

      22             As Governor Cuomo has said many times,

      23      health-care workers are the heroes of this pandemic.

      24             Nursing home staff are incredibly

      25      hard-working professionals; all of them, they are









































                                                                   36
       1      dedicated to the residents that they care for.

       2             Mary Mayhew, the secretary of the Florida

       3      Agency for Health-Care Administration, recently

       4      confirmed for Politico that it was asymptomatic

       5      health workers themselves that were carrying the

       6      virus and transmitting it to their own patients.

       7             And a Florida nursing home administrator

       8      echoed that point by saying, and I'm quoting:  What

       9      we're finding is staff is coming in contact without

      10      even knowing it.  Our communities are truly a

      11      microcosm of the larger community.

      12             SENATOR RIVERA:  Commissioner, if I may,

      13      the -- is there any way -- because I've gotten a

      14      couple of texts from some of my colleagues that are

      15      finding it really difficult to hear you.

      16             Is there any way that you can get closer to

      17      the microphone, please?

      18             DR. HOWARD ZUCKER:  Let's see what we can do

      19      here.

      20             All right, let me see what we can do here.

      21      And I'm sorry.  And I'll speak louder.

      22             We're [inaudible].

      23             SENATOR RIVERA:  Okay, I did not --

      24      Commissioner, are you still there?

      25             I did not --









































                                                                   37
       1             DR. HOWARD ZUCKER:  I'm right here, I'm right

       2      here.

       3             SENATOR RIVERA:  Okay, because the

       4      presentation went away.

       5             DR. HOWARD ZUCKER:  I know.  They're

       6      working -- they're working on trying to get the

       7      microphone [inaudible].

       8             SENATOR RIVERA:  I mean, it -- it -- and now

       9      the audio has gone away.

      10             OFF-SCREEN TECHNICIAN:  Stand by.  They're

      11      troubleshooting.

      12             SENATOR RIVERA:  Okay.

      13             Hoping this doesn't count against our time,

      14      sir.

      15             OFF-SCREEN SPEAKER:  At your discretion,

      16      Mr. Chairman.

      17             SENATOR RIVERA:  No, no, I'm talking to the

      18      commissioner, because he's the one that -- you know,

      19      want to make sure that we get some time to ask some

      20      questions.

      21             DR. HOWARD ZUCKER:  Is that better?

      22             SENATOR RIVERA:  Say a couple more words so

      23      that we can determine.

      24             But -- but, in any event --

      25             DR. HOWARD ZUCKER:  Is that better?









































                                                                   38
       1             SENATOR RIVERA:  -- we're just going

       2      [indiscernible] audio, because we don't want to --

       3      we don't want to kill more time.

       4             Keep going, sir.

       5             DR. HOWARD ZUCKER:  All right.  Let's see if

       6      the PowerPoint comes back up.

       7             SENATOR RIVERA:  That's a little bit better,

       8      actually, in the audio.

       9             Please continue.

      10             DR. HOWARD ZUCKER:  All right.  Great.

      11             Thank you.

      12             After all, staff are one of the links between

      13      the community and the facilities.

      14             And when we looked at the data in New York,

      15      we asked nursing home administrators to tell us the

      16      first date staff experienced symptoms typical of

      17      COVID or received a positive test result.

      18             We also asked them to quantify how many staff

      19      either tested positive or experienced symptoms of

      20      COVID.

      21             So what does the data show?

      22             A retrospective analysis shows that the

      23      earliest recorded staff illness with symptoms

      24      similar to COVID was actually at the end of

      25      February; February 24th to be exact.









































                                                                   39
       1             Let's think about that for a moment.

       2             The period of time from infection, when the

       3      virus is in the body, to symptoms is 2 to 14 days.

       4             And if you count backwards, this could, in

       5      many cases, bring us back to mid-February when the

       6      exposure likely occurred.

       7             The question:  Is that possible?

       8             Well, Mount Sinai recently published the

       9      results of their antibody study, which showed that

      10      COVID was in New York as early as February 1st.

      11             But back then, we could not test for it.

      12             CDC was the only place a specimen could be

      13      evaluated then, and for a long time afterwards.

      14             In fact, our own Wadsworth laboratory

      15      developed the first test for COVID outside the CDC,

      16      and that was on February 29th.

      17             Back then we were not even screening for

      18      symptoms yet.

      19             And as I mentioned, the CDC itself recently

      20      released a report, acknowledging that the European

      21      travel ban, which came on March 13th -- right? --

      22      was too late, and it was already spreading in

      23      New York.  3,000 flights from Europe had already

      24      landed in New York State by mid-March.

      25             So, mid-March.









































                                                                   40
       1             With the largest number of nursing homes, the

       2      first instance of staff reporting a COVID-related

       3      illness was on March 16th, as one sees on this

       4      image, which is the blue peak there.

       5             So one may ask, why does that matter?

       6             So let me explain, because, as I said

       7      earlier, nursing home resident fatalities peaked on

       8      April 8th, as one can see here with the yellow --

       9      the yellow peak.

      10             So April 8th is 23 days after the peak in

      11      nursing homes' first known infections among staff.

      12             And one may say, well, why does that matter;

      13      what's so important about 23 days?

      14             Because multiple publications out of the

      15      Imperial College of London, and many other

      16      prestigious research institutions, have shown that,

      17      among people in the general population who died from

      18      COVID, the average span of time from inspection to

      19      death is 18 to 25 days.

      20             So I -- I want to be clear on this.

      21             This is not the place blame on the nursing

      22      home staff for resident fatalities.  Not at all.

      23             But we need to look at this from that moment

      24      in time, not from an analysis using knowledge that

      25      we have subsequently gained in the months since that









































                                                                   41
       1      time.  Right?

       2             So let's stand at that moment in time.  What

       3      was the landscape then?

       4             Many of the COVID-positive nursing home staff

       5      were actually asymptomatic.  Treating -- testing was

       6      not available then.

       7             But let's just, for argument's sake, say that

       8      there was testing, and that they knew that they had

       9      it, but they did not have symptoms.

      10             The extent to which asymptomatic individuals

      11      could transmit disease was just not fully known back

      12      in March.

      13             Now, more on the nursing home staff, because,

      14      as I mentioned, they were hit hard by COVID.

      15             By mid-May, nursing homes had reported

      16      approximately 37,000 infected staff.

      17             In fact, when I learned about this point,

      18      I actually said to them, "You mean 3700."

      19             And they said:  No.  37,000.

      20             I was shocked by that number, because we have

      21      158,000 people work in nursing homes.

      22             So that means approximately one in four

      23      workers were affected.

      24             And, interestingly, independent antibody

      25      testing done by the -- by a reference lab show -- in









































                                                                   42
       1      May, show that 29 percent of the 3500 nursing home

       2      employees that they looked at had COVID antibodies.

       3             And this is very consistent with our

       4      findings.

       5             So extrapolating that data to the whole

       6      nursing home workforce means that approximately one

       7      in three nursing home workers had COVID at some

       8      point in time.

       9             So let's -- let's clarify this a little,

      10      about the guidance.

      11             I'd like to spend a little more time about

      12      the March 25th guidance, which we have talked about

      13      many times, but it deserves repeating.

      14             SENATOR RIVERA:  And if I may --

      15             DR. HOWARD ZUCKER:  [Indiscernible

      16      cross-talking] --

      17             SENATOR RIVERA:  -- Commissioner --

      18             DR. HOWARD ZUCKER:  -- yes.

      19             SENATOR RIVERA:  -- just an inquiry.

      20             We do want to spend some time on that, and we

      21      want to give you the time to do that.

      22             But how much longer in your presentation,

      23      only because we have quite a list --

      24             DR. HOWARD ZUCKER:  One more --

      25             SENATOR RIVERA:  -- of questioners?









































                                                                   43
       1             DR. HOWARD ZUCKER:  One more page.

       2             So --

       3             SENATOR RIVERA:  Go ahead, sir.

       4             DR. HOWARD ZUCKER:  -- a minute.

       5             The document, mirroring CMS guidance,

       6      released March 13th, simply said:  That no resident

       7      shall be denied admission solely based on

       8      COVID-positive status.

       9             It did not say, you must admit residents with

      10      COVID.

      11             Now, I know this seems like semantics and

      12      just words, but words matter, and it's not

      13      semantics.

      14             "No resident shall be denied" does not equal

      15      "must accept."

      16             A nursing home could not accept a

      17      COVID-positive person unless the nursing home could

      18      provide, and I quote, proper isolation, protective

      19      procedures, and provide adequate care.

      20             And Title 10 of the New York State Code of

      21      Rules and Regulations, Section 415-26 [sic], clearly

      22      states:  That a nursing home shall accept and retain

      23      only those nursing home residents for whom it can

      24      provide adequate care.

      25             And, in this case, "adequate care" means









































                                                                   44
       1      properly cohorting patients, ensuring proper levels

       2      of PPE, screening staff, and other infection-control

       3      measures that we communicated to the nursing homes

       4      at several different junctions.

       5             So, in conclusion:  What caused nursing home

       6      residents to get COVID?

       7             The tragic truth is, that COVID-19 is a new

       8      disease.

       9             It's in it's name, "19," referring to 2019.

      10             Early on, we did not know how widespread it

      11      already was within our communities, and because no

      12      one knew the virus was able to enter the facilities

      13      that housed our most frail and vulnerable citizens.

      14             And looking back, the data shows that the

      15      virus came into nursing homes through staff, and,

      16      presumably, through visitors, and was passed on to

      17      the residents.

      18             And with their health already compromised by

      19      age and other conditions, they died in numbers that,

      20      again, are just too high to bear.

      21             Still, we looked at the facts, and we will

      22      continue to do so.  And as we learn more about

      23      COVID-19, we will have more facts, and we will be

      24      able to refine how we respond.

      25             But we will always, always, make our









































                                                                   45
       1      decisions based on the best scientific data

       2      available at that time.

       3             Thank you very much.

       4             SENATOR RIVERA:  All right, thank you so much

       5      to the commissioner.

       6             We are going to start it off by the Senate.

       7             Senator James Skoufis.

       8             SENATOR SKOUFIS:  Thank you, Mr. Chairman.

       9             And thank you for your participation today,

      10      Commissioner, and Mr. Rhodes.

      11             As we in the legislature make judgments on

      12      the past five months, I think you both agree it's

      13      critical that we first have the full unadulterated

      14      facts.

      15             And so, to that end, I'd like to ask you

      16      about your administration's definition of a

      17      "nursing home death."

      18             As it stands, someone who's in a nursing home

      19      as a resident, gets infected in their nursing home,

      20      but loses their life in a hospital or elsewhere, is

      21      not counted as a COVID nursing home death.

      22             So, first, how many other states similarly do

      23      not count the aforementioned as a nursing home

      24      death?

      25             DR. HOWARD ZUCKER:  I can't give you the









































                                                                   46
       1      answer on the number of states.

       2             I know that the data that's coming in to the

       3      CDC, and I've spoken to the CDC many times, is quite

       4      fragmented regarding different states.

       5             Some reported --

       6             SENATOR SKOUFIS:  Understood.

       7             So if I can ask, then, are you aware of any

       8      other states that count these deaths as we do?

       9             DR. HOWARD ZUCKER:  I know that there are

      10      other states.

      11             I can't give you other states that

      12      specifically say that it's coming from nursing homes

      13      versus hospitals.

      14             But can I get back to you about which states

      15      are doing what.

      16             SENATOR SKOUFIS:  Please do.

      17             You know, my investigative team wasn't able

      18      to identify a single other state that counts nursing

      19      home deaths as we do.

      20             I -- and -- you know, regardless, and

      21      respectfully, you know, it's my opinion that your

      22      administration's definition truly misrepresents the

      23      true scale of this crisis in a nursing home as a

      24      result.

      25             So let's try and get the full picture here









































                                                                   47
       1      and now.

       2             How many of New York's nursing home residents

       3      died in hospitals?

       4             DR. HOWARD ZUCKER:  So I know that -- that

       5      you want that number, and I wish I could give you

       6      the number today.  But I -- I need to be sure it's

       7      absolutely accurate, and let me explain a little bit

       8      as to why I'm saying that.

       9             Because, numbers, when we ask the nursing

      10      homes' information, they provide information,

      11      sometimes it dates all the way back to

      12      December 2019, obviously, before coronavirus was

      13      here as we understand it.

      14             They also sometimes provide nursing home data

      15      that was on a day, but it wasn't accurate to that

      16      specific day.

      17             And I'm not placing any blame on the nursing

      18      homes.

      19             The nursing homes provide data, but

      20      I personally need to also be sure that that

      21      information is accurate and correct.

      22             SENATOR SKOUFIS:  You don't have --

      23             DR. HOWARD ZUCKER:  And we [indiscernible

      24      cross-talking] --

      25             SENATOR SKOUFIS:  -- if I may, because my









































                                                                   48
       1      time is limited, you don't have a ballpark that you

       2      can give?

       3             I mean, so --

       4             DR. HOWARD ZUCKER:  I [indiscernible

       5      cross-talking] --

       6             SENATOR SKOUFIS:  -- the total official

       7      number is about 6500.

       8             Are we talking, with the hospital deaths,

       9      8,000? 10,000? 15,000?

      10             DR. HOWARD ZUCKER:  I think --

      11             SENATOR SKOUFIS:  What are looking at?

      12             DR. HOWARD ZUCKER:  I think this is a serious

      13      issue of making sure, when it comes to the deaths of

      14      individuals in nursing homes, and I'm not prepared

      15      to give you a specific number.

      16             We are in the middle of the -- a pandemic,

      17      obviously.  We always forget about that sometimes.

      18             We are looking at all the numbers, we are

      19      looking at data.

      20             When the data comes in, and I have an

      21      opportunity to piece through that, then I will be

      22      happy to provide that data to you and to the other

      23      members of the Committee.

      24             SENATOR SKOUFIS:  So I just -- I --

      25      respectfully, I don't understand why many other









































                                                                   49
       1      states, including very large states, like

       2      California, both large in population and large in

       3      terms of the scale of this crisis, are able to

       4      collect this information, and we are not.

       5             I -- it -- it perplexes me that an

       6      administration that has prided itself, and

       7      rightfully so, over these past five months, for

       8      making data-driven decisions, that you don't have

       9      this fundamental information.

      10             You do have, based on your report that came

      11      out last month, data that speaks to nursing home

      12      residents that were recovered from hospital stays

      13      and discharged back to hospitals.  But you're not

      14      able to, it seems, track how many nursing home

      15      residents didn't recover.

      16             If I may move on.

      17             Your definition of a "nursing home death" is

      18      fundamental to that report I just referenced.

      19             Our Committee's investigative team elicited

      20      testimony from a Dr. Dennis Nash, an

      21      epidemiologist at CUNY, who wrote, the department's

      22      report, quote, didn't set up the design well from an

      23      epidemiological standpoint.  And goes on to write

      24      that, "Hospital-based deaths of nursing home

      25      residents are central to understanding whether there









































                                                                   50
       1      is any causal link between State and nursing home

       2      policy and increased COVID transmission.

       3             Do you agree or disagree with Dr. Nash,

       4      that a full accounting of hospital-based deaths is

       5      central to understanding the effect of the State's

       6      policies on nursing home infections?

       7             DR. HOWARD ZUCKER:  I don't agree with him.

       8             I think that we have looked at the report.

       9             Obviously, I issued the report, and anything

      10      that I'm going to issue, I obviously stand behind.

      11             We've looked at that data, and it does -- as

      12      I just showed you in the -- this PowerPoint slide,

      13      it does shows you the relationship regarding

      14      residents and -- well, I should say, staff who got

      15      ill, and deaths.  And we can talk a little bit more

      16      about that.

      17             We had an incredible team of epidemiologists

      18      who also worked on this information, and looked at

      19      the data as we put information out.

      20             And regarding -- you know, I was just

      21      thinking about this also, that 11 states don't even

      22      report anything.

      23             I remember that number [indiscernible] back

      24      of my head.

      25             And we report -- New York State also reports









































                                                                   51
       1      presumed cases.

       2             Now, granted, we are at a place now where we

       3      have the ability to test.  We're testing, obviously,

       4      80,000 a day.

       5             SENATOR RIVERA:  Commissioner, one second --

       6             DR. HOWARD ZUCKER:  But

       7      [indiscernible cross-talking] --

       8             SENATOR RIVERA:  -- one second.

       9             The clock is not up, but you have 30 seconds

      10      left.

      11             SENATOR SKOUFIS:  Yep, yep.  Thank you.

      12             My last question:

      13             I think we can all agree that it's of utmost

      14      importance that we learn from the past five months,

      15      so we're best prepared for the next public health

      16      crisis.

      17             In hindsight, do you have any specific

      18      nursing home regrets that you would like to share

      19      with our committees?

      20             And, Mr. Rhodes, I'd like you to answer

      21      this question, please.

      22             GARRETT RHODES:  The -- your question is, do

      23      we have any specific nursing home regrets?

      24             SENATOR SKOUFIS:  Yes.

      25             GARRETT RHODES:  I think we're still in the









































                                                                   52
       1      middle of a -- of a -- a global pandemic.  And, like

       2      everything, there's always to be lessons learned.

       3             And I know that's what today's hearing is

       4      about as well.

       5             And I think, once there is the amount of data

       6      and amount of fact, once there is a full picture on

       7      the table, hopefully, once this crisis is over,

       8      I think there will be many lessons learned, that we

       9      can look back on and learn from.

      10             SENATOR SKOUFIS:  So just to be clear --

      11             SENATOR RIVERA:  Thank you, Mr. Rhodes.

      12             SENATOR SKOUFIS:  -- you can't share one

      13      specific regret [indiscernible cross-talking] --

      14             SENATOR RIVERA:  Thank you, Senator Skoufis.

      15             Your time is up, Senator Skoufis.

      16             I'm going to ask for the technical team to

      17      please make sure that the -- I'm going to stop

      18      everything for a second -- make sure that the clock

      19      is up on the screen so that every person after us

      20      can do it.

      21             So, if anybody who is out there in the

      22      technical team could take a second to put that clock

      23      up.  I'm doing some rough timekeeping over here, but

      24      I don't want to be accused of doing it unfairly.

      25             So something that everyone can see would be









































                                                                   53
       1      preferable.

       2             OFF-SCREEN TECHNICIAN:  We recommend that

       3      everyone uses the gallery view.

       4             The clock should stay there in the gallery

       5      view of Zoom.

       6             SENATOR RIVERA:  It's still -- is it on

       7      there?

       8             OFF-SCREEN SPEAKER:  It should be.

       9             SENATOR O'MARA:  It is on mine.

      10             SENATOR RIVERA:  Okay.

      11             SENATOR O'MARA:  Chairman, can I just remind

      12      that Mr. Rhodes was not sworn in as Mr. Zucker

      13      was.

      14             SENATOR RIVERA:  Okay.  I pass it to --

      15      passing it to the Assembly.

      16             ASSEMBLYMEMBER GOTTFRIED:  Fair -- fair

      17      point.

      18             Mr. Rhodes, if you are asked further

      19      questions, do you swear or affirm that the testimony

      20      you are about to give is true?

      21             GARRETT RHODES:  I affirm.

      22             ASSEMBLYMEMBER GOTTFRIED:

      23             ASSEMBLYMEMBER KIM:  Thank you.

      24             SENATOR RIVERA:  Assembly.

      25             Go ahead, Mr. Bronson.









































                                                                   54
       1             ASSEMBLYMEMBER BRONSON:  Uh, yes.

       2             Ron Kim is -- has his hand up.

       3             SENATOR RIVERA:  Assemblymember Kim, you're

       4      up.

       5             ASSEMBLYMEMBER KIM:  Good.  Can you hear me?

       6             SENATOR RIVERA:  Yes.

       7             ASSEMBLYMEMBER KIM:  Thank you.

       8             Commissioner Zucker, was there any thought to

       9      have an independent third-party agency or

      10      organization evaluate the policy of the

      11      New York City Department of Health that sent

      12      hospital patients, irrespective of their

      13      COVID-positive status, so that any concerns of

      14      conflict of interest may be addressed?

      15             DR. HOWARD ZUCKER:  So I -- I think I will

      16      echo what Garrett just mentioned, is this pandemic

      17      is not over yet.  And New York has made an

      18      aggressive response regarding the pandemic.

      19             And, you know, I -- I think that we need to

      20      work through the pandemic first, and, hopefully, we

      21      get through this without, you know, other deaths,

      22      and we can tackle that at another point in time.

      23             But I want to say that, that the efforts that

      24      we have made in the state --

      25             I hope we didn't lose you.









































                                                                   55
       1             Can you still hear me?

       2             ASSEMBLYMEMBER KIM:  Okay.  That's fine.

       3      Thank you, Commissioner.

       4             So for argument's sake, then let us assume

       5      that the conclusions of the report are correct;

       6      namely, that the admission of COVID-positive

       7      patients to nursing homes had a negligible effect on

       8      the spread of the coronavirus disease there.

       9             If this is true, then what -- what explains

      10      the impetus on a reversal of the March 25th

      11      directive in early May, to prohibit nursing homes

      12      from accepting COVID-positive patients?

      13             DR. HOWARD ZUCKER:  So this goes back to that

      14      statement I made earlier in my opening remarks

      15      about, there's a false narrative out there.

      16             And that -- and this is where I -- I have to

      17      correct these statements that are being made.

      18             There was no reversal.  The March 25th memo

      19      is still in place.

      20             We still say, based on the guidance of CMS

      21      and the CDC, that a nursing home cannot accept a

      22      patient without being able to care for it.

      23             That's part one.

      24             The March -- the May 10th guidance that you

      25      just referenced was about the ability to test people









































                                                                   56
       1      who are leaving the hospital.

       2             And, again, as I also mentioned in my opening

       3      remarks, we have to look at this in each moment in

       4      time.

       5             On May 10th we were able to test.

       6             On March 25th we were not able to test.

       7             And what we were asking back at that point,

       8      is to make sure that no one is discriminated

       9      against.

      10             And we still feel that way:  No one should be

      11      discriminated against based on their COVID status.

      12             ASSEMBLYMEMBER KIM:  Okay.

      13             So there's --

      14             DR. HOWARD ZUCKER:  And --

      15             ASSEMBLYMEMBER KIM:  -- if there's -- if

      16      there's no statistical correlation between the

      17      unconditional admission of COVID-positive residents

      18      in nursing homes and the rate of infection in them,

      19      then why would there have been a need to establish

      20      specialized facilities for the isolation and care of

      21      COVID-positive residents?

      22             DR. HOWARD ZUCKER:  Because -- so let's also

      23      think about this at that moment of time:

      24             We were sitting with projections of

      25      suggesting that 140,000 people were going to be









































                                                                   57
       1      admitted to the hospital with coronavirus.

       2             We have 53,000 beds, and that's across the

       3      state; 26,00 downstate, which is where most of these

       4      cases were, initially, obviously.

       5             And, we were planning what -- what we would

       6      need to do in case there was a surge of even more

       7      cases.

       8             We had to look at this with projecting going

       9      forward.

      10             We could sit here now, six months later, four

      11      months later, three months later, and be able to

      12      sort of say, well, these are the facts that we have.

      13             But as I said in the presentation,

      14      [indiscernible] more is to stand there at that

      15      moment in time, and say, What should we be doing?

      16             Governor Cuomo, I remember the meetings, and

      17      there were many meetings, saying:  We need to

      18      project.  If there's a surge of 140,00 potential

      19      cases, we need to plan for that.

      20             And that's what we were doing; planning for

      21      what could happen.

      22             And that's what one of things was, to -- to

      23      move forward on that.

      24             Sorry.

      25             SENATOR RIVERA:  Thank you, Commissioner.









































                                                                   58
       1             Thank you, Assemblymember Kim.

       2             Senator May, please.

       3             SENATOR MAY:  Thank you.

       4             So I want to go back to the issue of

       5      staffing, because you talked about staff a lot.

       6             Last year we passed a bill, requiring the

       7      department of health to submit a report, detailing

       8      safe staffing levels, in part, to improve safe --

       9      patient safety in nursing homes.

      10             It was due at the end of last year.

      11             But when can we expect to see that report?

      12             DR. HOWARD ZUCKER:  I'm -- I -- I promise

      13      you, I can give you an answer to that.  On

      14      August 14th I will have the report.

      15             I wanted to be sure that we also looked at

      16      this in the context of what has been happening.

      17             Remember, December to now, the world has

      18      changed, and we are now in the middle of, obviously,

      19      a public health crisis.

      20             But, August 14th.

      21             SENATOR MAY:  We wanted that report before,

      22      in December, so I don't think you can use that

      23      excuse.

      24             So in your report you stated that employee

      25      transmission was the largest correlation to nursing









































                                                                   59
       1      home fatalities.

       2             We know that many long-term-care workers work

       3      multiple jobs; they lack benefits, like sick leave,

       4      that might make them less likely to get sick or to

       5      be unwitting vectors of disease.

       6             I also wrote to you back in May about the

       7      need for more PPE for nursing home staff.

       8             What are you doing now to assure that the

       9      State invests in these heroic workers, so they have

      10      the support they need to protect themselves and

      11      their patients, moving forward?

      12             DR. HOWARD ZUCKER:  So as -- I mean, this --

      13      I think this goes to the bigger question of, what

      14      have are we doing to protect, not just the nursing

      15      home staff, because they are part of a community.

      16      Right?

      17             And -- and I think it's the -- the issues of

      18      how to protect those who work in the nursing homes

      19      is really protecting the community.

      20             So maybe I can talk a little bit about that,

      21      of what we're doing, looking forward, and how to

      22      prevent the spread of this disease that -- and that

      23      I think will answer the question about how we're

      24      protecting the staff as well.

      25             But -- so -- so let's look at this from two









































                                                                   60
       1      parts; let's look at this from the standpoint of

       2      prevention, and treatment, because I think this is a

       3      really important issue.

       4             With regards to prevention, we are making

       5      sure that there is equipment available for those in

       6      the nursing homes, and for elsewhere.  But we have

       7      put out 14 million pieces of PPE.

       8             We are aggressive to make sure that, if any

       9      nursing home needs more supplies, we provide that to

      10      them as the State.

      11             We have also worked to make sure that there's

      12      testing available.

      13             We had one million tests -- or, more than one

      14      million tests done on nursing home staff.  We

      15      provided the test kits to those individuals as well.

      16      We've tested, obviously, the residents in the

      17      613 nursing homes.

      18             So it's a whole issue of testing.

      19             We have moved forward to make sure there's

      20      testing available for the nursing home staff.  If

      21      they weren't to get it [indiscernible], but let's

      22      say, if they wanted to get it elsewhere in the

      23      state, we have 776 different places they can get

      24      testing on that.

      25             We're working with the nursing home staff,









































                                                                   61
       1      again, about the community, regarding contact

       2      tracing.  So if one of them gets sick, we want to be

       3      sure that we can look at that individual nursing

       4      home, and to be able to track, not just those who

       5      they're exposed to in the nursing home, but to their

       6      relatives as well, because, as I said, this is part

       7      of a community.

       8             So we have contact tracing set up, which has

       9      been an aggressive effort on our part, with

      10      Bloomberg Philanthropies and with -- and with

      11      Vital Strategies.

      12             And I can tell you, there are tens of

      13      thousands of tests done.  And I hear about those;

      14      I get reports about every time there's a positive.

      15      And what we have done is, every hotspot there is,

      16      and we go after that.

      17             So that's one issue.

      18             Then there's, obviously, all the education.

      19      We can go into that at another point, that we're

      20      doing.

      21             But also the issue of vaccines, and I think

      22      this is something worth mentioning as well, because

      23      we're looking down the road; the department is

      24      looking down the road.  The entire State of New York

      25      has always been very progressive on this issue.









































                                                                   62
       1             But, looking down the road, what happens when

       2      a vaccine becomes available; how to we decide how to

       3      get this out?

       4             And we've already dusted off the plan for the

       5      H1N1, which was a 2009, you know, infection --

       6      [indiscernible].

       7             What were our plans then?

       8             How did we move forward then?

       9             What could we do; how can we apply it?

      10             I've been speaking with -- with the

      11      pharmacies -- the CEOs, about pharmacies, about

      12      this.  I've been speaking to hospital leadership

      13      about this, the nursing home leadership -- everyone

      14      about this -- like, what's the plan, to make sure

      15      that people get vaccinated on this -- on this issue?

      16             And we have PPE regs as well.

      17             And I can go on.

      18             I would I like to, at some point

      19      [indiscernible cross-talking] --

      20             SENATOR MAY:  I've got to -- I've got to

      21      interrupt you, though, because I also want to talk

      22      about the issue of, nursing home staff and home-care

      23      staff are so underpaid, that we have -- we don't

      24      have enough people working in the nursing homes.

      25             And I want to urge you to be proactive in









































                                                                   63
       1      supporting this whole sector so that we can avoid

       2      the dire outcomes we've been seeing.

       3             I have one other question, which is about

       4      social isolation, which is a huge problem that's

       5      reducing the quality of life, and even the life

       6      expectancy for some seniors, in nursing homes.

       7             New York's prisons are set to resume

       8      visitation, but nursing homes have an incredibly

       9      high bar of 28 days without a positive test before

      10      people are allowed to visit.

      11             Have you considered models like

      12      Massachusetts, allowing outdoor visitation and

      13      encouraging outdoor visitation?

      14             The latest estimate I've seen is about

      15      10 percent of New York nursing homes are doing this.

      16             DR. HOWARD ZUCKER:  So the -- couple things

      17      on that.

      18             First, one other thing:  We have

      19      60-day-supply requirements on PPE in the nursing

      20      homes, 90 days in the hospitals.

      21             But we can get back to that.

      22             Visitation, yes, we -- we recognize this is a

      23      challenge.

      24             We have the 28 days, based on the CMS

      25      guidelines.  There's a reason for that.









































                                                                   64
       1             This is based on guidance of two incubation

       2      periods.  We really wanted to have two incubation

       3      periods.  It's not, "we want."  This is the science

       4      behind it.

       5             I recognize there's some discussions about

       6      outside visitation.

       7             We are looking at all options out there.

       8             But the last thing I want to do is create a

       9      situation where we have a surge in the number of

      10      cases here.

      11             And I also recognize, I really am very

      12      sympathetic to the situation of the facts that

      13      people are lonely.

      14             And what we're doing is, we have actually

      15      tried to figure out how we have more connections

      16      using technology.  And we put one million dollars

      17      into a program to be sure that that can move

      18      forward.

      19             And I know your time is up, and I'm trying to

      20      be respectful of that.

      21             SENATOR RIVERA:  Thank you, Commissioner.

      22             Assembly.

      23             ASSEMBLYMEMBER BRONSON:  Yes, my apologies,

      24      I went out of order.  I should have called

      25      Chairperson Dick Gottfried.









































                                                                   65
       1             You're up, Dick.

       2             ASSEMBLYMEMBER GOTTFRIED:  Okay, thank you.

       3             Commissioner, [inaudible] how many people

       4      contracted COVID-19 in a nursing home, and then went

       5      to a hospital and died?

       6             If -- if a handful of salmonella cases showed

       7      up, I think we would know pretty quickly that they

       8      came from a nursing home, and which one, and we

       9      would be on that case.

      10             I don't know why we can't do that with --

      11      with COVID-19.

      12             But it seems -- I have always -- I would have

      13      assumed that the data on what nursing home a patient

      14      in a hospital came from would be in that patient's

      15      SPARCS record, and the hospital [inaudible] since

      16      [indiscernible].  And, that if you needed that

      17      information on a real-time basis, the system could

      18      be jiggered so that that information would be

      19      available to you on a real-time basis.

      20             From our conversations, it sounds like what

      21      I thought it could be able to do, maybe it currently

      22      can't do.

      23             But here's my question:

      24             I'd like to talk to the top people that run

      25      the SPARCS system, and get from them a fairly









































                                                                   66
       1      detailed picture of, what's in the SPARCS system,

       2      what isn't; how quickly it can spit out the

       3      information we needed; and what we would need to do

       4      to approve that.

       5             So my question is:  Right after this hearing,

       6      would you e-mail me, the name and a mobile phone

       7      number and e-mail address of two or three people

       8      that run the SPARCS system, and tell them it's fine

       9      for them to talk to me at length?

      10             DR. HOWARD ZUCKER:  I will do that, I wrote

      11      it down.

      12             And just so you know, the SPARCS system data

      13      is for hospitals, not for nursing homes.

      14             There are other ways, there are other systems

      15      in place, for the reporting of [indiscernible]

      16      infections, or other infections.

      17             But we can talk about that, and my team will

      18      happily discuss that.

      19             ASSEMBLYMEMBER GOTTFRIED:  Okay.

      20             And, yes, I know SPARCS doesn't cover nursing

      21      homes, but the data ought to say where the patient

      22      came from.  And, did they come from a nursing home;

      23      and if so, which one?

      24             Another question:

      25             Medicaid is the payer for about 80 percent of









































                                                                   67
       1      nursing home residents.  At the moment, it might

       2      even be higher than that.

       3             [Inaudible] that a COVID patient in a nursing

       4      home, or caring for patients in a time of COVID, is

       5      a whole lot more expensive; a whole lot more staff

       6      time; a lot more staff who are -- who are absent,

       7      and need (inaudible) replacements; patients need

       8      more care; patients need -- it's labor-intensive

       9      [indiscernible] patients and treat them separately.

      10             [Indiscernible] I think if we look at home

      11      care, there are probably very similar issues.

      12             As far as I know, the amount that Medicaid

      13      pays to nursing homes, and -- and for home care,

      14      those terms and those amounts have not changed.

      15             And my question is:  Are we going to do

      16      something about that?

      17             How can we expect providers to provide

      18      quality care when their costs are skyrocketing and

      19      their payment rates from the State are not?

      20             DR. HOWARD ZUCKER:  Well, we're going to look

      21      at everything on this issue, obviously.

      22             But I will turn back to the issues of the

      23      federal government when it comes to Medicaid,

      24      because this is one of these big challenges.  And we

      25      would hope that our federal partners help provide









































                                                                   68
       1      some of the support to this, financial support, to

       2      the states on this issue.  And, obviously, then it

       3      will go to the people in the state of New York who

       4      are recipients of such programs.

       5             ASSEMBLYMEMBER GOTTFRIED:  Well,

       6      [indiscernible cross-talking] --

       7             DR. HOWARD ZUCKER:  So I recognize your

       8      question, and we will look at all of these issues.

       9             ASSEMBLYMEMBER GOTTFRIED:  When the federal

      10      government was in the mood to be passing

      11      multi-billion-dollar, or trillion-dollar, pieces of

      12      legislation, maybe we could have put this on their

      13      agenda back then, meaning, a couple of months ago.

      14             SENATOR RIVERA:  Thank you, Assemblymember.

      15      Your time is actually up.

      16             ASSEMBLYMEMBER GOTTFRIED:  Okay.

      17             SENATOR RIVERA:  Senator Biaggi.

      18             SENATOR BIAGGI:  I can't, for some reason,

      19      [indiscernible] show my video.

      20             [Indiscernible.]

      21             There we go.

      22             SENATOR RIVERA:  We can hear you.

      23             SENATOR BIAGGI:  Okay, very good.

      24             SENATOR RIVERA:  There you are.

      25             SENATOR BIAGGI:  Thank you very much.









































                                                                   69
       1             Commissioner, I'm going to ask that you

       2      answer yes or no because of my time.

       3             How long have you served as New York State

       4      Health Commissioner?

       5             DR. HOWARD ZUCKER:  Six years.

       6             SENATOR BIAGGI:  Okay.  [Indiscernible

       7      cross-talking] --

       8             DR. HOWARD ZUCKER:  One year as acting,

       9      five years as the firm.

      10             SENATOR BIAGGI:  -- great, thank you.

      11             Stick to yes or no.

      12             As health commissioner for six years, how

      13      many budgets have you worked on?

      14             DR. HOWARD ZUCKER:  [Indiscernible] since the

      15      beginning.

      16             SENATOR BIAGGI:  Great.

      17             In accordance with your responsibility to

      18      uphold the health and safety of all New Yorkers, as

      19      department of health commissioner, do you read the

      20      health section of each year's budget?

      21             DR. HOWARD ZUCKER:  I do read the budget when

      22      it's done.

      23             But I will tell you, too:  Do I remember

      24      every detail?  No, I don't remember every detail.

      25             SENATOR BIAGGI:  Okay, great.









































                                                                   70
       1             Did you read this year's health-budget

       2      language?

       3             DR. HOWARD ZUCKER:  It depends on what you're

       4      asking me specifically about that.

       5             SENATOR BIAGGI:  Did you read

       6      [indiscernible], Part GGG, which is the provision of

       7      the budget that gives immunity to health-care

       8      professionals, health-care facilities, and any other

       9      treatments that are given to individuals who are

      10      seeking treatment from those doctors or

      11      professionals?

      12             DR. HOWARD ZUCKER:  No, I will not say that

      13      I can remember those details on that.

      14             But I have a team of an unbelievable number

      15      of lawyers who usually provide me with information,

      16      along with my legislative team, on that.

      17             SENATOR BIAGGI:  Okay.

      18             DR. HOWARD ZUCKER:  If there is something

      19      specific that is in there --

      20             SENATOR BIAGGI:  Just to be clear, the most

      21      important provision of the health budget this

      22      year -- one of the most important and provocative

      23      and, frankly, controversial, was you did not read

      24      that provision.

      25             Okay.









































                                                                   71
       1             So I will then just jump to the point.

       2             So, that provision was written by the

       3      Greater New York Hospital Association.

       4             I can confirm that from the press release

       5      that was issued on April 2nd, which they later

       6      deleted, unfortunately, that basically said, quote:

       7      They drafted and aggressively advocated for the

       8      immunity provision.

       9             So since you are not aware of that provision,

      10      I'm going to tell you that the broad implication for

      11      that provision were that, immunity was not only

      12      granted to COVID-related treatments and diagnoses,

      13      et cetera, but it also was granted to

      14      non-COVID-related treatment, diagnosis of care, for

      15      any single New Yorker, which means that, if you were

      16      a New Yorker that went to the doctor from March 7th

      17      to April 3rd, [indiscernible] April 3rd when the

      18      budget was passed, your rights were retroactively

      19      taken away from you.

      20             And, today, people who are visiting their

      21      doctors do not have those rights.

      22             So are you now aware of these implications?

      23             DR. HOWARD ZUCKER:  The Greater New York did

      24      not draft that, as I understand that.

      25             I know what you're talking about, and I know









































                                                                   72
       1      where you're going on this issue.

       2             I lost the audio for you.

       3             SENATOR BIAGGI:  I actually have that

       4      language, and I have the press release that they

       5      sent out, on my computer right now.

       6             I'm happy to send it to you [indiscernible].

       7             DR. HOWARD ZUCKER:  I think the issue here

       8      you're going to is about immunity.

       9             SENATOR BIAGGI:  [Indiscernible] so now that

      10      you're aware of this provision, in the state of

      11      New York, Black women are still two to three times

      12      more likely to die in childbirth than White women.

      13             After the findings of the New York State Task

      14      Force on Maternal Mortality and Disparate Racial

      15      Outcomes, which I'm hoping that you remember, since

      16      you co-chaired it --

      17             DR. HOWARD ZUCKER:  Of course I do.

      18             SENATOR BIAGGI:  -- that childbirth should be

      19      a joyous time for families, unblemished by fear and

      20      implicit racial bias.

      21             So for women of color who are already

      22      receiving a lower standard of care during childbirth

      23      in the state of New York, how does immunity for

      24      their doctors protect them?

      25             DR. HOWARD ZUCKER:  The issue here about --









































                                                                   73
       1      there are a couple things.

       2             One is, the issues here about immunity, no

       3      one is saying that we are -- we are allowing bad

       4      actors to act on -- in the community, doctors or

       5      anyone else.

       6             And believe me, as a physician, I'm well

       7      aware of that.

       8             So that's number one.

       9             Number two, we are in unprecedented times.

      10             We wanted to be sure -- and we still are --

      11      wanted to be sure that there could be care provided.

      12             And we will look at everything about that.

      13             Regarding the -- the budget, I will just

      14      throw back to you, the fact that this is actually a

      15      negotiated budget.

      16             So you're part of this.

      17             You know, the legislature is part of this.

      18             So [indiscernible cross-talking] --

      19             SENATOR RIVERA:  Thank you, Senator, and

      20      thank you, Commissioner.

      21             SENATOR BIAGGI:  [Indiscernible] you actually

      22      know better, since you have been involved in

      23      six budgets in the past.

      24             Thank you very much.

      25             SENATOR RIVERA:  Thank you, Senator.









































                                                                   74
       1             Assembly, please.

       2             Assemblymember Bronson?

       3             ASSEMBLYMEMBER BRONSON:  Yep.  I had some

       4      problems with my mute button.

       5             So I'll be next in asking question to the

       6      commissioner.

       7             Commissioner, thank you for being here today;

       8      I do appreciate it.

       9             First off, questioning has to do with what

      10      many have reached out to my office and voiced the

      11      concern of, a lack of transparency of what's

      12      happening in the nursing homes; a lack of

      13      communication, or poor communication, the family

      14      members, certainly in the early days, that didn't

      15      know that their loved ones had tested positive, and,

      16      indeed, some who had passed away, with delayed

      17      notice of that.

      18             Most importantly, is the fact that, you know,

      19      the ombudsman program had been halted, which is a

      20      direct liaison system between the nursing homes and

      21      the family and the loved ones, as well as helping

      22      residents to marshal their way through changes that

      23      were impacting them.

      24             And I guess my first question relates to, how

      25      many inspections are you doing, and were you doing









































                                                                   75
       1      in the early days of this, to assure that nursing

       2      homes, in particular, were providing staff

       3      instruction, following protocols, and making sure

       4      that staff had the appropriate PPE?

       5             DR. HOWARD ZUCKER:  Sure.

       6             So we did 1300 inspections.  We continue to

       7      do them.

       8             We've been in every nursing homes across the

       9      state multiple times, sometimes in the middle of the

      10      night, unannounced.

      11             We are -- if there's anything that is not

      12      being done appropriately, and if there's any danger

      13      to any resident in that nursing home, we will go in

      14      there and be aggressive, and make sure it's changed.

      15             Separately from what the department and,

      16      obviously, the -- the -- our, you know, branch of

      17      government, the attorney general also has their own

      18      investigations that are being done.

      19             And I won't speak to that, but I just raise

      20      that as well [indiscernible].

      21             So we have been in there, and we will

      22      continue to be in there.

      23             ASSEMBLYMEMBER BRONSON:  Thank you.

      24             Of the 1300 inspections that your agency

      25      conducted, do you have a breakdown of the number of









































                                                                   76
       1      nursing homes that had to take, and I'll use the

       2      word "substantial," I'm not sure if that's a good

       3      qualifier, but, had to take substantial measures to

       4      correct their procedures, or other aspects of,

       5      whether it's staffing, PPE, and things of that

       6      nature?

       7             DR. HOWARD ZUCKER:  I'd have to get back to

       8      you about a specific number on that, and which ones.

       9             ASSEMBLYMEMBER BRONSON:  Okay, if you would,

      10      please.

      11             And in getting back to us on that, if you

      12      would outline the violations that were found, and

      13      what corrective steps were taken, and things of that

      14      nature.

      15             I just heard from a local nursing home who's

      16      concerned about the 28-day rule in connection with

      17      no test positives.

      18             Can you tell me the scientific [inaudible] of

      19      coming up with that 28-day?

      20             DR. HOWARD ZUCKER:  Sure, sure.

      21             It's two -- it's about two incubation

      22      periods.

      23             And this is not just about COVID-19.

      24             If you remember last year -- seems like a

      25      century ago -- but, last year, when we had the









































                                                                   77
       1      measles outbreak, and everyone was saying, well,

       2      when will New York State be considered clear?

       3             And I kept saying that we need two incubation

       4      periods, because someone could -- in that first

       5      incubation period, someone could actually end up

       6      positive.

       7             So you want to be sure you have coverage, two

       8      incubation periods, before you can say there's no

       9      risk.

      10             This is just so dangerous and it's so deadly

      11      that we need to be really cautious about this.

      12             And I am extremely empathetic to the issue of

      13      these individuals who are residents in the nursing

      14      homes and their relatives who want to see them.

      15             I get it, believe me.

      16             I have a mom who is home -- not in a nursing

      17      home -- but home alone.  I have seen her four times;

      18      once through a glass window in the lobby of the

      19      building.

      20             And is so upsetting, because people don't

      21      have many friends when you get to that age that are

      22      left.  A lot of people have died, which is very sad.

      23             And I can [indiscernible] exactly that

      24      situation with someone in a nursing home, and the

      25      fact that their relative or their best friend can't









































                                                                   78
       1      see them, and it's psychologically challenging to

       2      them as well.

       3             We've tried to move this forward with regards

       4      to using technology.

       5             I [indiscernible] -- I feel for them.

       6             But I don't want to do something which is not

       7      in the best interest of public health.

       8             GARRETT RHODES:  And that is consistent with

       9      the CMS guidance, which says 28 days as well.

      10             ASSEMBLYMEMBER BRONSON:  Okay.  Thank you for

      11      that.

      12             One follow-up question in that regard, and

      13      it's similar to what Senator May asked, and that's,

      14      we're very sensitive to, also, isolation, which

      15      really impacts the elderly.

      16             Are there plans to develop creative ways to

      17      get around that isolation issue?

      18             DR. HOWARD ZUCKER:  Right.  And so that goes

      19      to the use of technology in trying to move forward.

      20             The best thing, I hope, is that we get

      21      through this and the pandemic is over, and that we

      22      are able to have vaccines, with some kind of

      23      antiviral therapy, [indiscernible] antibodies...

      24      something out there that can help people, to make

      25      sure that it decreases the period of when they're









































                                                                   79
       1      ill.

       2             This is all in the works.

       3             I have spoken to -- I [indiscernible] --

       4      I know time is up.

       5             I just want to share the fact that have

       6      I spoken to so many scientists.

       7             I have spoken to, obviously, Tony Fauci on a

       8      regular basis, and been in contact since the

       9      beginning of this; two former FDA commissioners;

      10      three former assistant secretaries for public health

      11      [indiscernible]; two former CDC directors.

      12             I've also spoken, on a weekly basis, to the

      13      person who runs -- used to run the National

      14      [indiscernible cross-talking].

      15             SENATOR RIVERA:  Thank you, Commissioner.

      16             DR. HOWARD ZUCKER:  [Indiscernible] a lot of

      17      people and scientists on this issue.

      18             SENATOR RIVERA:  You talked to a lot of

      19      folks.  A lot of folks.

      20             But a lot of our folks --

      21             DR. HOWARD ZUCKER:  [Indiscernible] all the

      22      time.

      23             SENATOR RIVERA:  -- want to talk to you.

      24             [Indiscernible cross-talking.]

      25             SENATOR RIVERA:  Got you.









































                                                                   80
       1             But a lot [indiscernible] want to talk to

       2      you.

       3             DR. HOWARD ZUCKER:  No problem.

       4             Next senator, Senator Jen Metzger.

       5             SENATOR METZGER:  All right.

       6             Thank you, Mr. Chairman.

       7             And, thank you, Commissioner, for joining us

       8      today.

       9             I represent Hudson Valley communities in

      10      Orange, Ulster, and Sullivan counties, with nursing

      11      homes that were hit very hard and saw a tragic loss

      12      of life.

      13             Our state has an obligation to these

      14      families, and to nursing home residents and their

      15      families and staff, to analyze and assess the

      16      policies, procedures, and conditions that may have

      17      contributed to those deaths.

      18             This is important, not just for reasons of

      19      transparency and accountability, but to make sure we

      20      don't repeat past mistakes, to make sure that we are

      21      putting in place the best possible policies and

      22      protocols, in case we face another surge.

      23             I felt that the department of health report

      24      did not do this; it did not examine the practices,

      25      procedures, and conditions that contributed to or









































                                                                   81
       1      protected against fatalities.

       2             For example, I think it would be very

       3      valuable to undertake a comparative study of nursing

       4      homes that faired well in highly-impacted regions,

       5      compared to those that did not, so that we can

       6      understand what was effective and what wasn't.

       7             Do you have any plans to really examine --

       8      examine what happens, so that we can learn from the

       9      experience and be prepare for a future surge?

      10             DR. HOWARD ZUCKER:  Sure.

      11             We -- sure.

      12             Thank you, Senator.

      13             We are always looking at information and

      14      data.

      15             So let's go back to the data and the facts of

      16      this, because this is really important because of

      17      different areas of the state.

      18             This virus came into New York, and

      19      particularly in the downstate region, in the

      20      beginning of the year, probably in February of this

      21      year.

      22             We know from the data, from the antibody

      23      data, that it was probably in the community early on

      24      in February.

      25             We do know, from what the governor asked us









































                                                                   82
       1      to go out there and to the test the essential

       2      workers, we found out that there are some parts,

       3      some ZIP codes, in the downstate area with

       4      50 percent antibodies.

       5             So what this says is that, within the

       6      community this virus was spreading.  We did not know

       7      about it.  And it affected a lot of people.

       8             And so those people in the community, who

       9      also work in these nursing homes, it spread that

      10      way: it went into the nursing homes.

      11             There are other regions where the antibody

      12      levels were much lower.  It was -- and the testing,

      13      the levels of the positive rates were much lower.

      14             So the community probably had lower amounts

      15      of coronavirus.  And since the community and the

      16      nursing homes, obviously, are linked together so

      17      closely, it's probably less likely to spread.

      18             And I can tell you that, in some areas, look

      19      at Florida, look what's happening in Florida, these

      20      numbers are skyrocketing now.

      21             The disease has goes gone up in the

      22      community, it's gone up in the nursing homes.

      23             SENATOR METZGER:  I'm going to run out of

      24      time.

      25             But, there are differences within -- I --









































                                                                   83
       1      within my district, I have a facility that had no

       2      patient -- no COVID-positive patients, and others

       3      where we had many deaths.

       4             And I think that that is worth investigating.

       5             You know, what --

       6             DR. HOWARD ZUCKER:  It is.

       7             SENATOR METZGER:  -- why is there such

       8      disparity in outcomes?

       9             So -- so --

      10             DR. HOWARD ZUCKER:  I agree; I agree with

      11      you.  I agree it's important to investigate this.

      12             And I will tell you, we are doing this.  But

      13      we're still in the middle of this pandemic.

      14             And the more information we get, the better

      15      it is, and we will respond to it appropriately.

      16             SENATOR METZGER:  Okay.

      17             SENATOR RIVERA:  Thank you, Commissioner.

      18      Thank you, Senator.

      19             Assembly.

      20             ASSEMBLYMEMBER BRONSON:  Uh, yes.  Next we

      21      will have Chair McDonald.

      22             SENATOR RIVERA:  Can't hear you, bro'.  Can't

      23      hear you.

      24             ASSEMBLYMAN McDONALD:  There you go, that's

      25      better.









































                                                                   84
       1             Dr. Zucker, thank you.

       2             Let's start off with a reverse question

       3      first.

       4             The March 25th policy, and you've done a good

       5      job of explaining that element, but, you know, the

       6      average Joe on the street asks the same question,

       7      time and time again, so I'm going to ask you this:

       8             You know, why were nursing home residents not

       9      actually discharged to a step-down facility?

      10             Or, why were they not -- and the same would

      11      apply for those in the developmentally-disabled

      12      population as well.

      13             Why were they not discharged to the

      14      Javits Center or the U.S.S. Comfort?

      15             That's -- that's something I think people

      16      want to know the answer to, and I would like your

      17      thoughts.

      18             DR. HOWARD ZUCKER:  Sure.

      19             So I think that, again, two parts of this.

      20             One is that, the issue of, what was the

      21      purpose of Javits and the "Comfort"?

      22             And I know this has come up a lot, and I've

      23      heard it from many people.

      24             The fact is, that we have to look at this in

      25      the context of the clinical picture.









































                                                                   85
       1             The Javits was not designed for the physical

       2      ailments of people in nursing homes or -- or -- or

       3      the cognitive issues.

       4             Let's think about this in the perspective of,

       5      somebody who, unfortunately, has dementia.  And you

       6      have somebody in a facility where they're not in

       7      their room.  They have to get out of -- the next

       8      thing you know, they're getting out of the bed in

       9      their cubicle, they're starting to walk,

      10      [indiscernible] the bathroom is not right there.

      11             You have to look at this from the clinical

      12      perspective.

      13             Also, just moving someone from the nursing

      14      home to another facility, there's something called

      15      "transfer trauma," where you actually disrupt them.

      16             So if you can keep them in the facility, you

      17      can provide the care that's needed in the facility,

      18      we will do that.

      19             If there was a reason to move them, if there

      20      was a need to move them, we would have moved them if

      21      they came to me and they asked.

      22             Nobody asked me about that.

      23             Back to the "Comfort" and the Javits for a

      24      second, originally, they were not designed even for

      25      COVID patients.









































                                                                   86
       1             And I know what you're saying about the

       2      non-COVID patients.

       3             It was Governor Cuomo who actually asked the

       4      President, and to move -- to change these to a

       5      COVID-positive facility.

       6             So we did move forward on that as well.

       7             But the nursing homes are their home.

       8             I think people forget that this is their

       9      home, this is their environment.

      10             If they can be provided care there, we should

      11      do that.

      12             Back to the March 25th, for one second, I do

      13      want to, because people keep bringing this memo up.

      14             It was to make sure that we did not

      15      discriminate against COVID-positive patients.

      16             And I will mention to you that, years ago,

      17      when I was in training, this issue came up with

      18      HIV/AIDS.

      19             And exactly what happened with people, if you

      20      go back in the literature, both the medical

      21      literature and the lay/public literature, you will

      22      find that there was a big concern that people were

      23      not allowing individuals that had HIV/AIDS into

      24      nursing homes.

      25             Go back: history.









































                                                                   87
       1             Sometimes you look at history and see what it

       2      showed.

       3             This is really important, but I'm respectful

       4      of your time [indiscernible].

       5             ASSEMBLYMAN McDONALD:  Let me jump on to

       6      something else.

       7             Let's jump forward to today.

       8             We have many residents throughout the state

       9      wanting to visit their family members in the

      10      facilities.

      11             You mentioned earlier that the visitation

      12      period, the 28-day period, is based on CDC

      13      recommendations.

      14             Is that recommendations in regards to, no

      15      positives with residents, or no positives with

      16      staff, or both?

      17             DR. HOWARD ZUCKER:  No, it's CMS guidance,

      18      and it says both.

      19             GARRETT RHODES:  And I'll quote --

      20             DR. HOWARD ZUCKER:  [Indiscernible

      21      cross-talking] --

      22             GARRETT RHODES:  -- quote:  There have been

      23      no new nursing home onset COVID-19 cases in the

      24      nursing home during that period.

      25             ASSEMBLYMAN McDONALD:  All right.









































                                                                   88
       1             Isolation, big concern.

       2             As you know, I'm a practitioner.

       3             I hear it from my colleagues.  I hear it from

       4      family members.

       5             Are we measuring the psychotropic use of

       6      medications?  Are we seeing an uptick?

       7             Because I -- you know, many people are

       8      saying, they're not dying of their illness.  They're

       9      dying of depression and isolation.

      10             DR. HOWARD ZUCKER:  And I look at this --

      11             ASSEMBLYMAN McDONALD:  I understand that it's

      12      also medication [indiscernible].

      13             DR. HOWARD ZUCKER:  -- right.

      14             And as one who is in the pharmacy world, and

      15      as an anesthesiologist, when it comes to

      16      medications, I was very sensitive to the issue of,

      17      what are we giving and what has been happening?

      18             Yes, we have seen an uptick on this, but it's

      19      not just in nursing homes.

      20             We've heard a little bit about what you're

      21      suggesting, about nursing homes.  But it's across

      22      the board in society.  There's a 27 percent increase

      23      in the use of Zoloft and some of the other agents

      24      for managing depression in the community.

      25             So I recognize this.









































                                                                   89
       1             And we are looking at the effect -- the

       2      psychological effects of this on the entire

       3      community, not just the aging population.

       4             Although I recognize they are a vulnerable

       5      population, but all across the board.

       6             ASSEMBLYMAN McDONALD:  Another question:

       7             We are requiring nursing home staff to be

       8      tested.

       9             I'm hearing, from throughout the state, that

      10      the results are coming back, eight, nine days after

      11      they've been tested.  Their tests are weekly.

      12             I think that needs to be reviewed in one way

      13      or the other.

      14             We need to review how they're going to

      15      continue to be able to afford this if we keep this

      16      type of process.

      17             And the other thing that I'm hearing from the

      18      nursing home community, which I would really would

      19      like to have reconsidered: the daily reporting of

      20      PPE.

      21             We -- it's important to have PPE, and I know

      22      we're making provisions.

      23             But, can we move that to weekly reporting

      24      versus daily?

      25             Just one less thing that these long-term-care









































                                                                   90
       1      providers have to deal with.

       2             DR. HOWARD ZUCKER:  We'll look into that.

       3             And with regard to testing, in the state, you

       4      know, our numbers are two to three days' turnover.

       5             Some of the commercial labs are a little bit

       6      longer.

       7             But Garrett probably can answer the specific

       8      [indiscernible cross-talking] --

       9             SENATOR RIVERA:  Very quickly, Mr. Rhodes.

      10      The time is up, so very quickly, please.

      11             GARRETT RHODES:  I think the issue is the

      12      [indiscernible] commercial labs.

      13             To the extent we can move testing from those

      14      labs [indiscernible] in the state, [indiscernible]

      15      turnaround, we're actively working on that.

      16             OFF-SCREEN SPEAKER:  Thank you.

      17             SENATOR RIVERA:  All right.

      18             Thank you, Assemblymember.

      19             Senator Sue Serino, recognized for 5 minutes.

      20             SENATOR SERINO:  Hello, everyone.

      21             And hello, Chairman.  Thank you for being

      22      here today, and I'll be quick.

      23             Throughout the pandemic, when it came to

      24      making decisions for nursing homes and

      25      assisted-living facilities, do you feel that your









































                                                                   91
       1      department was wholly independent of the executive

       2      branch?

       3             And this is really just a yes or a no for my

       4      first question.

       5             DR. HOWARD ZUCKER:  So -- well, the -- you

       6      know, the department is part of the entire, you

       7      know, executive branch -- right? -- and so we work

       8      together.

       9             This is such a complex pandemic.

      10             Sorry it's not a yes-or-no answer, because

      11      the issue is, that we are all working together.

      12             There's so many parts to this, that we must

      13      do this as a collaborative effort; otherwise, we

      14      wouldn't have the success that we have today in

      15      New York State versus the rest of the nation.

      16             SENATOR SERINO:  And -- that's good, because

      17      it was a team.

      18             So of the team that you had that were making

      19      the decisions, how many people left?

      20             DR. HOWARD ZUCKER:  How many left the team?

      21             We have an enormous team.

      22             Are you talking about within my department?

      23             Or -- I have over 1500 people working on this

      24      issue.  And so I have, you know, so many individuals

      25      that I couldn't even name them.









































                                                                   92
       1             The other day I was on a phone call with my

       2      entire department, thanking them for all their

       3      efforts.

       4             SENATOR SERINO:  Okay.  I'll go to the next

       5      one, Commissioner.

       6             So who made the final call when it came to

       7      the wording of the March 25th order; the wording,

       8      and who made the final call on that?

       9             DR. HOWARD ZUCKER:  This is a department --

      10      what happens with any guidance:

      11             We did 124 guidances so far.

      12             It's like any other department guidance.

      13             It goes through the process.  It goes over to

      14      chamber, like any other guidance goes forward.

      15             SENATOR SERINO:  Okay.

      16             And then I know you touched on staffing

      17      before, but the State recruited thousands of

      18      health-care volunteers.

      19             Can you tell me how the practice worked to

      20      get them where they were needed?

      21             Because, from what I heard from

      22      administrators, they were not able to access them,

      23      and, worse, many of their own qualified employees

      24      were getting incentivized to go to New York City.

      25             (The Senator talking under her breath.)









































                                                                   93
       1             DR. HOWARD ZUCKER:  So we --

       2             SENATOR SERINO:  And -- sorry.  You can

       3      answer [indiscernible cross-talking] --

       4             DR. HOWARD ZUCKER:  -- I know.

       5             I said, we had -- so we had

       6      96,000 volunteers, we still have, in the system.

       7             If a nursing home needs it, we will provide.

       8             They can go into a portal.  And if there's

       9      any challenge, they can call us.

      10             We had an entire operation set up right here

      11      in this room where I am right now, to address any of

      12      the challenges that anyone needed when it came to

      13      support.

      14             And, to this day, if someone needs something,

      15      just call.  And, go into the portal.  And if they

      16      don't get the answers in the portal, let us know,

      17      and we will make sure it happens.

      18             SENATOR SERINO:  Because that was an extreme

      19      area of frustration for people.

      20             And I had put forward a proposal to recruit

      21      and train staff, and to recruit volunteers with

      22      experience in this field.

      23             But that -- why wasn't that done?

      24             And will you make that a top priority, going

      25      forward?









































                                                                   94
       1             DR. HOWARD ZUCKER:  Well, I'm not sure what

       2      you're asking, that it wasn't done.

       3             It was, we -- we had that information, and we

       4      provided it to everybody.

       5             So I'm unclear.

       6             If there's a problem, we're happy to fix any

       7      glitches that are in the system.

       8             SENATOR SERINO:  Okay.

       9             And then on -- real quick:  On April 23rd

      10      I sent a letter to both you and the governor

      11      regarding specialty-care centers.

      12             And in the letter I make it clear that many

      13      nursing home administrators explained to me that,

      14      even though the governor claimed any facility that

      15      didn't have the ability to care for these patients

      16      could deny them admission, because of the wording of

      17      the March 25th order, they felt that was really not

      18      an option.

      19             I suggested that the State look into creating

      20      regionalized specialty-care centers, where you could

      21      designate certain facilities across the state as

      22      COVID nursing homes.  But provide those facilities

      23      with direct support and resources needed to ensure

      24      they could provide quality care.

      25             Shortly after sending the letter, my









































                                                                   95
       1      conference had a call with the governor's team, and

       2      I asked for a response to this idea.

       3             But, to date, I have yet to receive one.

       4             DR. HOWARD ZUCKER:  Well, we'll look into

       5      that and get back to you on that.

       6             SENATOR SERINO:  Okay.

       7             And then one last thing:

       8             On the testing for the nursing home and

       9      assisted-care facility staff, it's taken too long

      10      for the test results to come back.

      11             Is there any work being done on that, that we

      12      could have a quicker turnaround?

      13             DR. HOWARD ZUCKER:  So we will move --

      14      Garrett mentioned that -- let me just mention, that

      15      there are other facilities that are out there, that

      16      we have in place right now, for -- for individuals

      17      who can go there, including -- you know, I can go

      18      through the specific areas on that.

      19             And let me see if I have it on my paper.

      20             But while Garrett answers, I'll look for that

      21      for you.

      22             GARRETT RHODES:  Absolutely.

      23             So [indiscernible] in May, we required

      24      nursing homes to do testing -- weekly testing of

      25      their staff.









































                                                                   96
       1             We tested every nursing home that asked in

       2      the state, with a laboratory who could do the tests.

       3             Over that, now in the weeks and months since,

       4      we've had some of the larger national laboratories,

       5      the overwhelming demand from Arizona, from Florida,

       6      from Texas, which has led to much longer lag times

       7      we were seeing there.

       8             We've been actively working to move that

       9      volume from the national labs to more local labs in

      10      New York State.  Built an entire network of local

      11      labs.

      12             You heard the governor's op-ed in the

      13      "New York Times" a couple days ago, setting specific

      14      requests of the federal government, and what other

      15      states can do, to help reduce the -- what the demand

      16      of these big national labs.

      17             DR. HOWARD ZUCKER:  And so --

      18             SENATOR RIVERA:  Very quickly.

      19             DR. HOWARD ZUCKER:  -- and the answer,

      20      there's Buffalo Avenue, there's one in

      21      Staten Island, there's one in upstate in

      22      SUNY New York.  And one other one that I have also.

      23             But [indiscernible] to you.

      24             SENATOR RIVERA:  Thank you, Commissioner.

      25             Thank you, Senator.









































                                                                   97
       1             Assembly.

       2             ASSEMBLYMEMBER BRONSON:  Yes, next up we have

       3      Ranker Assemblymember Kevin Byrne.

       4             ASSEMBLYMEMBER BYRNE:  Thank you,

       5      Mr. Chair.

       6             Thank you, Mr. Commissioner, for being

       7      here.

       8             Before I get really started, I do want to

       9      thank you from earlier on, at the onset of the

      10      outbreak, the commissioner met with conferences,

      11      both Republican and Democrat, to brief us on the

      12      virus earlier in the year.

      13             So I do appreciate that.

      14             So I want to say something nice before

      15      I really got into the weeds here.

      16             And I'm glad you came prepared to discuss the

      17      March 25th order, as well as the DOH report.

      18             So let me start out by asking:  Who actually

      19      developed this report from the department of health

      20      that seems to defend the March 25th order?

      21             DR. HOWARD ZUCKER:  The reports -- the

      22      nursing home report was developed by the team within

      23      the department.

      24             As I mentioned, I have a lot of

      25      epidemiologists, I have physicians, and others, and









































                                                                   98
       1      who have been working on this since day one.  And

       2      they worked through the report, looked at the

       3      numbers.

       4             And as I mentioned earlier, that I -- you

       5      know, I stand by all the data in that report,

       6      because I know there's expert individuals who do it.

       7             ASSEMBLYMEMBER BYRNE:  Understood.

       8             And I do think there is some opinions from my

       9      colleagues, speaking for myself, that it is

      10      incomplete in certain instances.  The counting of

      11      fatalities from nursing homes is an issue.

      12             If the department felt it could do a report,

      13      I'm actually glad you did.

      14             We put forth an amendment in the Assembly at

      15      one point, to ask the department do a report.

      16             So, it's good.

      17             I just feel it's missing information;

      18      specifically, the -- a total complete count.

      19             I also had a question about the number.

      20             It seems that it seems to be heavily reliant

      21      on the timeline.

      22             And I understand that, the two different

      23      peaks, but the number "23," the 23 days, basically,

      24      from infection to fatality.

      25             My question is:  When we have -- when we're









































                                                                   99
       1      dealing with the elderly, and those with the most

       2      severe underlying conditions, is it not reasonable

       3      to believe that that period would be sped up?  That

       4      they are not going to have the same time period from

       5      rate of infection to fatality as the general public?

       6             DR. HOWARD ZUCKER:  I've asked the -- I've

       7      asked some scientists about that.  And it doesn't --

       8      so far it has not panned out on that.

       9             If the individuals are severely

      10      immunocompromised, somebody who has had -- is on

      11      chemotherapy, their white count's 3, and their

      12      platelet count is 20,000, all these other medical

      13      problems I could go through, then the virus may hang

      14      around a little longer.

      15             That's [indiscernible], but it's a very small

      16      percentage of the population.

      17             Back to the [indiscernible cross-talking] --

      18             ASSEMBLYMEMBER BYRNE:  Mr. Commissioner,

      19      I want to ask -- because we have a limited amount of

      20      time, so I'm sorry to interrupt, but, I just want to

      21      point that out, that's a concern.  And I know

      22      there's anecdotal evidence, people that have

      23      succumbed to this virus fairly quickly.  So there's,

      24      obviously, highs and lows to this.

      25             Going back to the actual March 25th order,









































                                                                   100
       1      I'm glad you said that words have meaning, and

       2      that's important.

       3             I think we believe that as policymakers and

       4      as lawmakers.

       5             And you cited the New York State Codes of

       6      Rules and Regulations, 415.26.

       7             I know the governor has mentioned this.

       8             Can you -- I'm not sure if you have the

       9      March 25th order, but can you point to where in the

      10      order it actually cites CDC guidance or the

      11      New York State Codes of Rules and Regulations in the

      12      order?

      13             DR. HOWARD ZUCKER:  So two things.

      14             One is -- I don't have it sitting right in

      15      front of me.

      16             But, two things.

      17             One is, on the report, just so you know, it

      18      has been -- it had been reviewed by outside experts

      19      as well.  So it's sort of peer-reviewed as well.

      20             So that's part number one.

      21             On number two:  These codes and these

      22      statutes, 415-26 [sic], that has been around since

      23      1992.

      24             They know, you know, these nursing homes,

      25      everyone knows that you have to provide the









































                                                                   101
       1      necessary adequate care.

       2             So this is just a -- it's a basic underlying

       3      understanding of the nursing homes, and, for that

       4      matter, you know, all other facilities

       5      [indiscernible].

       6             So I [indiscernible cross-talking] --

       7             ASSEMBLYMEMBER BYRNE:  Commissioner, I'm

       8      sorry, we're just running low on time.

       9             But I understand that, and I thank you for

      10      your answer.

      11             But, as we craft policies in the state

      12      legislature, and other orders and directives are

      13      disseminated, I mean, we are dealing with this

      14      pandemic, where the governor has had to, in many

      15      cases, rightfully suspend certain state laws.

      16             So I think this is a very, you know,

      17      high-pressure time.

      18             We pass laws and policies where we always say

      19      things, like -- not always, but oftentimes, not to

      20      conflict with state or federal law.

      21             I didn't see that anywhere in the order.

      22             I also saw, you know, we use the term

      23      "advisory" or "guidance."

      24             And I know the report mentioned some of the

      25      CDC guidance, but this uses words like "must" and









































                                                                   102
       1      "shall."

       2             Do you think that, if you had do this over

       3      again, it's still a standing order, although

       4      I can't -- or, standing document, although I can't

       5      find it on the department of health website, would

       6      you consider revising it or rewording it if you had

       7      to do this over again?

       8             DR. HOWARD ZUCKER:  The guidance was put out

       9      there in the effort to make sure we did not

      10      discriminate against those who are COVID-positive.

      11             That was the purposes of the guidance, and at

      12      a time when our numbers were going up dramatically,

      13      and we could not predict what was going to

      14      ultimately happen with projections at 140,000 cases.

      15             That's where we were at a time when,

      16      remember, we didn't have the testing capacity of

      17      80,000 individuals.

      18             So we have to always remember where we are.

      19             The guidance is still in place, and it's

      20      still there.

      21             We have other things that we now can do,

      22      including testing at the capacity as I mentioned.

      23      And so we can provide [indiscernible

      24      cross-talking] --

      25             SENATOR RIVERA:  Thank you, Commissioner.









































                                                                   103
       1             ASSEMBLYMEMBER BYRNE:  I know, but why isn't

       2      it on the website [indiscernible cross-talking] --

       3             SENATOR RIVERA:  Thank you, Senator -- thank

       4      you, Assembly -- Assemblymember, thank you.  You're

       5      time is up.

       6             I recognize myself for 5 minutes.

       7             Mr. Commissioner, I want to go back to the

       8      beginning.

       9             Let's talk about the definition of

      10      "nursing home deaths."

      11             It is -- I've been trying to -- you know,

      12      I've obviously read the report.  I've heard the

      13      conversation that you had with my colleague

      14      Senator Skoufis.  Other folks have asked you about

      15      it.

      16             I have to admit to you, it does not -- I'm

      17      confused.

      18             And I'll just pose the question, and the rest

      19      will be for you to kind of convince me that this is

      20      the right way to do it.

      21             If I'm not mistaken, and please correct me if

      22      I'm wrong, at the beginning of the pandemic, the

      23      reports that were being put out included data

      24      related to people who were nursing home patients,

      25      who then were admitted to hospitals and died there.









































                                                                   104
       1             Is that incorrect?

       2             DR. HOWARD ZUCKER:  At the beginning of the

       3      pandemic, when somebody died, we assumed that what

       4      was going to happen was, people who got sick, ended

       5      up going to the hospital, and we were reporting the

       6      data from the hospital as someone who unfortunately

       7      died.

       8             Ultimately, as we moved forward --

       9             SENATOR RIVERA:  Sir, sir --

      10             DR. HOWARD ZUCKER:  -- yep, sorry.

      11             SENATOR RIVERA:  -- this is the question --

      12             DR. HOWARD ZUCKER:  Yeah, yeah,

      13      [indiscernible cross-talking] --

      14             SENATOR RIVERA:  -- this is this question,

      15      because I have a few very specific questions.

      16             This is the first one:

      17             Is it correct or incorrect, that at the

      18      beginning of the pandemic, before, I believe, the

      19      7/31 -- I'm -- the -- I'm trying to look for the

      20      exact report -- but that there was, at a point at

      21      the beginning of the pandemic, patients who were

      22      nursing home patients, who were admitted to

      23      hospitals, who died, were counted towards the deaths

      24      of that nursing home?  And then, at one point, you

      25      stopped doing that?









































                                                                   105
       1             Is that correct or incorrect?

       2             DR. HOWARD ZUCKER:  The issue here is, that

       3      someone comes in, and the worry is that will you end

       4      up counting them twice.  You'll count them as

       5      nursing home, you'll count them at a hospital.

       6             So you have to -- this is the issue --

       7             SENATOR RIVERA:  I will ask you one more

       8      time --

       9             DR. HOWARD ZUCKER:  -- of not having the

      10      data --

      11             SENATOR RIVERA:  -- I'm sorry, I'm sorry.

      12             I'm asking one more -- please, just answer

      13      this -- this is the question: --

      14             DR. HOWARD ZUCKER:  -- well, you know

      15      [indiscernible cross-talking] --

      16             SENATOR RIVERA:  -- Is it correct or

      17      incorrect, that you, at one time, reported it one

      18      way, and now are choosing to report it another?

      19             Because this is the -- this is the crux to

      20      me.

      21             It --

      22             DR. HOWARD ZUCKER:  No, no.

      23             [indiscernible cross-talking] --

      24             SENATOR RIVERA:  -- let me just --

      25      [indiscernible cross-talking] --









































                                                                   106
       1             DR. HOWARD ZUCKER:  --

       2      [indiscernible cross-talking] --

       3             SENATOR RIVERA:  I'm going to give you

       4      30 seconds.  Go ahead.

       5             DR. HOWARD ZUCKER:  -- no, I was going to

       6      say, we had -- we reported it as someone who's died

       7      in the hospital.

       8             [Indiscernible] the nursing home, they went

       9      to the hospital, they died in the hospital.  We

      10      reported as they came from the hospital.

      11             We then started to ask, and we tried to get

      12      information about who died in the nursing homes.

      13      And we started reporting that as getting information

      14      from the nursing homes.

      15             And we do not want -- as I mentioned before,

      16      we don't want to double-count and say this person

      17      died here and also died there.

      18             SENATOR RIVERA:  But it's -- as my colleague

      19      James -- as my colleague Senator Skoufis pointed

      20      out, no other state keeps the numbers like this.

      21             This is the concern that we have, sir.

      22             I understand that we were all --

      23             DR. HOWARD ZUCKER:  No,

      24      [indiscernible cross-talking] --

      25             SENATOR RIVERA:  Hold on.









































                                                                   107
       1             -- [indiscernible].

       2             That this is not incorrect?

       3             DR. HOWARD ZUCKER:  The issue here is, there

       4      was a lot of confusion up front because this was an

       5      evolving process.

       6             This is what -- what I was sort of trying to

       7      say in my presentation, that you have to go back to

       8      that point in time, when we had information coming

       9      in and we assumed one thing.  And then we found out

      10      that there was another problem there, or that the

      11      numbers were going up, or the numbers we were going

      12      to predict, you know, were astronomical

      13      [indiscernible cross-talking] --

      14             SENATOR RIVERA:  This is the concern --

      15             DR. HOWARD ZUCKER:  -- yes.

      16             SENATOR RIVERA:  -- I'm going to tell you the

      17      concern is --

      18             DR. HOWARD ZUCKER:  -- okay.

      19             SENATOR RIVERA:  -- I'm going to tell you

      20      what the concern is.

      21             There is -- because I know that you went like

      22      this (indicating) when I said there was no other

      23      state that's doing it like this.  And then you kind

      24      of, you know, went back and said, we have to look at

      25      that time.









































                                                                   108
       1             I get it.

       2             And none of us is trying to castigate y'all

       3      here for the very difficult work that had to be

       4      done.

       5             But it seems to me that patting ourselves on

       6      the back for victories is a little bit far-fetched,

       7      considering that we have still more deaths than

       8      anybody else in the country, both in nursing homes

       9      and in overall deaths.

      10             And the concern here, sir, is that it seems

      11      that that definition, you have to admit, that -- or

      12      maybe you never will -- but, the definition, the

      13      fact that the definition was changed, that the

      14      report before a certain date included those numbers,

      15      and then afterwards did not, it seems that what

      16      y'all are doing is just trying to minimize.

      17             And nobody says that you went into these

      18      nursing homes and threw people off a flight of

      19      stairs.

      20             But we are saying that, to be able to --

      21      moving forward, if we want to get clear

      22      information -- we need to get clear information so

      23      we can make better policy.

      24             And it seems to me, that if the definition

      25      that you're insisting on keeping on the books is one









































                                                                   109
       1      that no other state utilizes, and that it makes you

       2      look better than what y'all did, when y'all actually

       3      did, that's a problem, bro'.

       4             DR. HOWARD ZUCKER:  Yes, but, you know what,

       5      Senator?  There are 14 states in the United States

       6      that don't even report -- nursing homes don't even

       7      report their data.

       8             SENATOR RIVERA:  I'm not talking about

       9      those 14.

      10             But -- okay, but then what about the

      11      other 36, or what have you?

      12             DR. HOWARD ZUCKER:  And some of them don't

      13      report [indiscernible].

      14             We are trans -- all I'm saying, Senator, is

      15      that we have been incredibly transparent on

      16      information.

      17             But the one thing that we are also, is that

      18      we have been [indiscernible], and we have -- also,

      19      the one thing we know -- and you know me -- I will

      20      not provide information unless I'm sure it's

      21      absolutely accurate and out there.

      22             And I've done that on so many other things

      23      that you and I have worked on over the

      24      [indiscernible cross-talking] --

      25             SENATOR RIVERA:  The only thing -- and I only









































                                                                   110
       1      have -- I want to respect the time, as I'm

       2      respecting it for everybody else, I would do it for

       3      myself as well.

       4             And I will cut myself off, but not before

       5      saying:  It seems, sir, that, in this case, you are

       6      choosing to define it differently so that you can

       7      look better.  And that is a problem.

       8             I'm sorry.

       9             My time is up.

      10             Assembly.

      11             ASSEMBLYMEMBER BRONSON:  Thank you.

      12             Ranking Member Brian Manktelow, and you have

      13      5 minutes.

      14             ASSEMBLYMEMBER MANKTELOW:  Hi, thank you,

      15      Chair.

      16             Commissioner, just a quick question for you.

      17             Do you remember meeting with us on March 2nd,

      18      with the minorities for the Senate and the Assembly?

      19             DR. HOWARD ZUCKER:  Yeah, I do remember

      20      meeting because this was when we were discussing the

      21      $40 million appropriation that was being put forth.

      22             Yes, I do remember.

      23             ASSEMBLYMEMBER MANKTELOW:  Well, thank you.

      24             And that evening, I think it was around

      25      7:00 or 7:30 that evening, and I know one of the









































                                                                   111
       1      things that you said was, you really need to be very

       2      conscious of the 60-, 70-, and 80-year-old people as

       3      this pandemic moves into New York State.

       4             And do you remember that as well?

       5             DR. HOWARD ZUCKER:  I -- well, I am very

       6      concerned about the elderly people, so I'm sure that

       7      I mentioned.  I do actually sort of remember that.

       8             ASSEMBLYMEMBER MANKTELOW:  Sure.

       9             DR. HOWARD ZUCKER:  And I mentioned that, and

      10      I also mentioned those who were young.  Yes.

      11             And at that point we didn't realize that --

      12      that young -- you know, we just assumed young people

      13      would get sick, and then look what happened.  They

      14      haven't been [indiscernible], except for that

      15      Kawasaki-like symptom.

      16             ASSEMBLYMEMBER MANKTELOW:  So -- so knowing

      17      at that point in time that our seniors, especially

      18      if they have something preexisting and would be

      19      compromised quite quickly, on February 25th, on one

      20      of your earlier graphs that you showed, you said

      21      that the first staff reported in the nursing home of

      22      COVID symptoms at that point.

      23             DR. HOWARD ZUCKER:  The first staff -- we had

      24      a staff that was reported with COVID on March -- a

      25      nursing home staff on March 5th.  And then on









































                                                                   112
       1      March 11th, in another nursing home, there was staff

       2      that were reported positive.  And subsequent to

       3      that, obviously.

       4             But it was March 5th.

       5             ASSEMBLYMEMBER MANKTELOW:  Let me rephrase

       6      that.  I apologize.  Maybe I said it wrong.

       7             On February 25th, you said one of the nursing

       8      home staff members reported the first symptom-like

       9      COVID symptoms of a patient at that point?

      10             DR. HOWARD ZUCKER:  Yes, but you know what?

      11      That was -- right, so you're asking me, at that

      12      point.  But I didn't know it at that point.

      13             This is when we did the retrospective

      14      analysis, looking back at this data.  When we went

      15      back, this is how the March 5th and March 11th

      16      I know, because that was prospectively at that

      17      moment in time.

      18             Then we went back, looking to try to find

      19      out.

      20             This is when we were trying to figure out how

      21      the 37,000 individuals in the nursing homes -- the

      22      nursing home staff were positive.

      23             So we went back, asking everyone, Can you

      24      please tell us when the first person in your nursing

      25      home was -- staff -- a staff person was positive?









































                                                                   113
       1             And that's where the February 25th, because,

       2      February 25th, I want to mention a little bit about

       3      February 25th, because that's a very critical day,

       4      at least in this response.

       5             And so I want to be respectful of your time,

       6      but, when you have a second, I would like to bring

       7      that up.

       8             ASSEMBLYMEMBER MANKTELOW:  All right, well --

       9      yeah, okay.  I've got one really quick question,

      10      then.

      11             So at that point, knowing how compromised our

      12      nursing homes could be, having had that $40 million

      13      that we voted on to approve, why was there such a

      14      time lag getting the PPE equipment out to our

      15      nursing homes?

      16             It seems like, at this point, if they're our

      17      most vulnerable people that we have in New York

      18      State, why would they have not been the priority at

      19      that point?

      20             DR. HOWARD ZUCKER:  We did -- so let's talk a

      21      little bit about PPE and supplies, because we did

      22      have -- we did provide to the counties, who then

      23      provided both to the hospitals and nursing homes,

      24      PPE.

      25             We did not have enough PPE.









































                                                                   114
       1             The governor was ask -- he was asking

       2      everyone to try to figure out how we can get more

       3      PPE.

       4             We were looking across the country.

       5             We were looking across the world, for that

       6      matter.

       7             The irony here a little bit, is that the

       8      virus originated in China, right from the beginning,

       9      that's where it started.  Right?  Went to Europe,

      10      came to the U.S.

      11             And the actual answer, that the protection

      12      from the virus, the PPE was being manufactured in

      13      China as well, and we were trying to get it from

      14      there.

      15             A little bit of an ironic situation there on

      16      that.

      17             But I -- and we did get it out.

      18             We -- and if they didn't, we do not have,

      19      then we were quick to try to do whatever we could to

      20      help them out.

      21             ASSEMBLYMEMBER MANKTELOW:  All right.

      22      Because that was the number-one complaint -- one of

      23      the number-one complaints from our nursing homes and

      24      our senior living places, that they could not get

      25      PPE equipment to their staff members fast enough.









































                                                                   115
       1             And it just seems like, with all the

       2      information that we had -- the data, the scientific

       3      proof -- of what was coming, it just seems like they

       4      would have been a priority, and we would have got

       5      that equipment out to them sooner.

       6             I think that that's one of the downfalls of

       7      what had happened.

       8             And I hope we move forward and look at

       9      something to make sure that doesn't happen again,

      10      especially moving forward.

      11             I only have like 30 seconds left, so I'll --

      12      go ahead.

      13             DR. HOWARD ZUCKER:  No, I just want to talk

      14      about that last week of February for a second,

      15      because I think it's an important week of what we

      16      did, and what was happening on a national level,

      17      because, on February 25th --

      18             And I recognize the time.  Give me an extra

      19      15 seconds.

      20             -- on February 25th I was in Washington.

      21      I was with all my other state health commissioners

      22      from around the nation, annual meeting.

      23             We were invited to the White House, to sit

      24      down with all of them, and to listen to HHS and to

      25      listen to the leadership there and the leadership at









































                                                                   116
       1      the White House, to tell us about this coronavirus.

       2             And what they said was, "that we are going to

       3      leave this to the states."

       4             New York was already leading.

       5             The governor -- Governor Cuomo was already

       6      taking steps to address this issue.  As I had

       7      mentioned, that we had a $40 million appropriation

       8      put forth, which I thank the legislature for

       9      [indiscernible cross-talking] --

      10             SENATOR RIVERA:  I gave you 20.

      11             DR. HOWARD ZUCKER:  You gave me 20.

      12             SENATOR RIVERA:  I gave you 20.

      13             DR. HOWARD ZUCKER:  Let me just finish -- let

      14      me just finish.  I'll even stay one minute longer on

      15      this.  Okay?

      16             Thank you.  Thanks.

      17             All right.  I promise you.

      18             And what happened was, I told the White House

      19      after they said, we'd leave it to the states, I said

      20      to them that this needs to be a federal response.

      21      And New York will lead, but that this needs to be a

      22      federal response.

      23             That same week --

      24             SENATOR RIVERA:  Thank you, Commissioner.

      25             DR. HOWARD ZUCKER:  That same week, Wadsworth









































                                                                   117
       1      lab came out with a lab, and then we [indiscernible

       2      cross-talking] --

       3             SENATOR RIVERA:  We have to move on.

       4             Senate, Ranking Member of Investigations,

       5      Senator O'Mara, you're recognized for 5 minutes.

       6             SENATOR O'MARA:  Yes, thank you, Chairman.

       7             Thank you, Commissioner and Mr. Rhodes, for

       8      being with us today.

       9             Were you cognizant of the fact, the numbers

      10      of nursing home deaths that occurred in hospitals

      11      would be an important topic of interest for us

      12      today?

      13             DR. HOWARD ZUCKER:  I -- I -- yes, I was.

      14             Yes, I was.

      15             SENATOR O'MARA:  Yet you come with no

      16      information to give us any idea of how many of those

      17      deaths there were?

      18             DR. HOWARD ZUCKER:  Because, as I said

      19      earlier, that I will not provide information that

      20      I have not sort of ensured it's absolutely accurate.

      21             This is too big an issue, and it's too

      22      serious an issue with deaths and numbers, to be able

      23      to provide.

      24             I will get that you number, as I promised you

      25      that I would.









































                                                                   118
       1             SENATOR O'MARA:  Commissioner, when were you

       2      aware that this hearing was going to happen today?

       3             DR. HOWARD ZUCKER:  A couple of weeks ago

       4      I heard about this.

       5             But I have to tell you that, within that

       6      period of time, these last couple of weeks --

       7             SENATOR O'MARA:  Commissioner, this is my

       8      time.

       9             And were you further aware that the

      10      CDC guidelines with regards to [indiscernible] in

      11      the nursing homes would have been an important topic

      12      for us to be talking about today --

      13             DR. HOWARD ZUCKER:  You [indiscernible] --

      14             SENATOR O'MARA:  -- yet you didn't bring the

      15      CDC guidelines with you today?

      16             DR. HOWARD ZUCKER:  -- you broke up, Senator,

      17      on that, so I didn't hear you.

      18             SENATOR O'MARA:  Did -- did you not

      19      understand that the CDC guidelines relative to

      20      nursing home admissions would be an important topic

      21      of interest to us today; yet, you did not bring that

      22      CDC language with you?

      23             GARRETT RHODES:  I have it.

      24             DR. HOWARD ZUCKER:  We have it.

      25             Yes, we have it.









































                                                                   119
       1             SENATOR O'MARA:  Well, earlier you said you

       2      didn't have it, and you couldn't answer a question

       3      about what specifically was in there regarding

       4      requiring nursing homes to admit COVID-positive

       5      patients.

       6             DR. HOWARD ZUCKER:  We'll get it.

       7             GARRETT RHODES:  [Indiscernible] multiple

       8      pieces of guidance.

       9             Which one --

      10             DR. HOWARD ZUCKER:  I don't know which one

      11      you want.

      12             SENATOR O'MARA:  Well, I forget what the

      13      specific question was from a member before, but

      14      I thought it odd that you said you didn't have that

      15      language then.

      16             DR. HOWARD ZUCKER:  No, I didn't have our

      17      March 25th memo with me.  That's what I said,

      18      I didn't have the memo with me.

      19             SENATOR O'MARA:  Okay.

      20             Have -- are either of you familiar with a

      21      March 26th statement by The Society for

      22      Long-Term Care Medicine and the AMDA in response

      23      to --

      24             DR. HOWARD ZUCKER:  No, I'm not.

      25             SENATOR O'MARA:  -- to the order?









































                                                                   120
       1             DR. HOWARD ZUCKER:  I'm not.

       2             SENATOR O'MARA:  Neither of you have seen the

       3      March 26th statement from AMDA, The Society for

       4      Post-Acute and Long-Term Care Medicine?

       5             DR. HOWARD ZUCKER:  I have not, no.

       6             SENATOR O'MARA:  It was [indiscernible] to us

       7      earlier in some meetings we were having, from a

       8      representative from the AMDA, The Society for

       9      Post-Acute and Long-Term-Care Medicine, which

      10      represents health-care providers in the nursing home

      11      industry across the country, that this March 26th

      12      statement was sent directly to both the governor and

      13      you, Commissioner Zucker, on March 26th.

      14             And that statement said, that:  The AMDA

      15      finds that the New York State advisory to be

      16      overreaching, not consistent with science,

      17      unenforceable, and, beyond all, not in the least

      18      consistent with patient-safety principles.

      19             Now, this statement has been reported in the

      20      media extensively.

      21             Neither of you have read this statement?

      22             DR. HOWARD ZUCKER:  There's a lot of things

      23      that have come across my desk, as you can imagine.

      24             And I'm happy to go back and look at that,

      25      and see what memos or letters that came through on









































                                                                   121
       1      this.  And we'll find -- we'll find this.

       2             SENATOR O'MARA:  Well, The Society for

       3      Long-Term Care went on, in their response to your

       4      directive:  Rather than bullying nursing facilities

       5      and medical providers to make unsafe decisions, the

       6      State of New York would be [indiscernible] to direct

       7      its energies at ensuring adequate personal

       8      protective equipment is available to all health-care

       9      providers, ramping up [inaudible] capabilities,

      10      shortening test turnarounds, developing a

      11      long-neglected health-care workforce, and

      12      identifying and standing up alternative care sites.

      13             What alternative care sites for nursing homes

      14      were set up outside of the New York metropolitan

      15      region?

      16             DR. HOWARD ZUCKER:  So we had -- so a couple

      17      things.

      18             Number one, we have a 60-day supply for PPE.

      19             I take issue with the statement that we did

      20      not -- we were not providing excellent care to the

      21      individuals in the nursing homes.

      22             We always are looking out for the best

      23      interests of those individuals.

      24             The residents in those nursing homes, if

      25      there was a concern in the nursing home









































                                                                   122
       1      administration, I was happy to reach out to us.

       2             They say they felt that they could not do

       3      that, that's not on true facts.

       4             I have spoken with many of the nursing home

       5      administrators and owners about their issues, and

       6      they're -- I'm always receptive to that.

       7             So that's that issue.

       8             Your last point that you were asking is, what

       9      are we doing, moving forward, on this?

      10             Is that where your concern is?

      11             SENATOR O'MARA:  No.

      12             What did do you since March 25th to set up

      13      alternative --

      14             DR. HOWARD ZUCKER:  Oh, yes --

      15             SENATOR O'MARA:  -- [inaudible] --

      16             DR. HOWARD ZUCKER:  -- outside of New York

      17      City.

      18             SENATOR O'MARA:  -- facilities

      19      [indiscernible cross-talking], rather than sending

      20      them back into the nursing home?

      21             DR. HOWARD ZUCKER:  So -- so a couple of

      22      things.

      23             Let's go through this.

      24             First of all, there are other facilities that

      25      are out there, that we had set up.









































                                                                   123
       1             But I think there's a point here

       2      [indiscernible], and this goes back to the science,

       3      that people keep believing that --

       4             I know time's up.  I'll be very fast on this.

       5             -- people keep believing that the individual

       6      is going to the nursing home with coronavirus.

       7             That doesn't fit the science.

       8             When you recognize, you talk about CDC, after

       9      nine days, zero infectivity in the [indiscernible]

      10      infectivity.

      11             I can through this, but I'm respectful of the

      12      time.

      13             I can go through why the science doesn't add

      14      up to what people are saying.

      15             SENATOR RIVERA:  [Indiscernible], Senator.

      16             Thank you.

      17             Assembly.

      18             ASSEMBLYMEMBER BRONSON:  Yes, the next person

      19      to ask questions, Assemblymember Tom Abinanti.

      20             Tom.

      21             All right.

      22             SENATOR RIVERA:  If he's not there, I'll take

      23      it.

      24             ASSEMBLYMEMBER ABINANTI:  Well, I'm here.

      25      I'm here.









































                                                                   124
       1             ASSEMBLYMEMBER BRONSON:  Okay, Tom.  You have

       2      3 minutes.

       3             ASSEMBLYMEMBER ABINANTI:  I had to get the

       4      mechanics to work.

       5             First of all, thank you, Commissioner, for

       6      joining us this morning.

       7             I'd like to first go to the issue of families

       8      visiting at nursing homes.

       9             Do you have any evidence of any family

      10      transmission at nursing homes?

      11             DR. HOWARD ZUCKER:  This goes back to the

      12      issue of visitation, in general.

      13             And I believe, based on what we found --

      14             ASSEMBLYMEMBER ABINANTI:  No, I'm not asking

      15      visitation in general.

      16             I'm asking -- you said the problem of

      17      transmission of COVID with nursing homes was staff.

      18             If it's not visitors, why are you keeping

      19      visitors out and allowing staff to continue to go

      20      in?

      21             DR. HOWARD ZUCKER:  No, what I said is, that

      22      the data we have shows the 37,000 positive staff.

      23             But that because we didn't test visitors, but

      24      the presumption is, and I would tell you the

      25      presumption is, that the visitors also brought it









































                                                                   125
       1      in.

       2             I don't want to -- like I said, I don't want

       3      to blame anyone.

       4             ASSEMBLYMEMBER ABINANTI:  I asked

       5      [indiscernible cross-talking] --

       6             DR. HOWARD ZUCKER:  But the reality --

       7             ASSEMBLYMEMBER ABINANTI:  -- you said you

       8      relied on the basis [indiscernible].

       9             DR. HOWARD ZUCKER:  -- because the nursing

      10      home staff --

      11             ASSEMBLYMEMBER ABINANTI:  What's your basis

      12      for that assumption?

      13             DR. HOWARD ZUCKER:  -- because the nursing

      14      home is someone that we can go ask, that we want to

      15      get tested.

      16             And, you know, it's a little bit different to

      17      walk up to someone and just say, you know, and you

      18      came to visit your relative.

      19             ASSEMBLYMEMBER ABINANTI:  [Indiscernible

      20      cross-talking] -- Commissioner, it seems to me --

      21      I'm directing the questions about family, not about

      22      staff.

      23             Families are complaining that they are not

      24      able to supervise on a day-to-day basis, so there

      25      are no outside eyes to see what's going on.  That









































                                                                   126
       1      their family members are deteriorating very

       2      significantly.  That they cannot use technology

       3      because they're much older people.

       4             DR. HOWARD ZUCKER:  I agree.  I understand.

       5             ASSEMBLYMEMBER ABINANTI:  It's not the same

       6      thing as being face-to-face.

       7             So what is the basis for excluding families

       8      completely from [indiscernible cross-talking]?

       9             DR. HOWARD ZUCKER:  Sure.

      10             ASSEMBLYMEMBER ABINANTI:  Why can't you set

      11      up a protocol for every nursing home where the

      12      family members are tested?

      13             It seems to me, as somebody previously said,

      14      that the staff work in various places, they go home

      15      to their own families, they take public transit;

      16      while it's the families that are going to be the

      17      most careful, because they don't want to infect

      18      their family members who are in the nursing home.

      19             What can we do to allow the family in the

      20      nursing homes today?

      21             DR. HOWARD ZUCKER:  I am extremely, like

      22      I said before, empathetic to those who have

      23      relatives that they don't see, and they need to see

      24      them.

      25             I get that.  I really recognize that.









































                                                                   127
       1             The reason I say also visitors is because

       2      everyone lives in the community.

       3             The people work in nursing homes live in the

       4      community.

       5             People who visit live in the community,

       6      because the person's work is in that area, is also

       7      in the community.

       8             We do know, we do know, from our testing of

       9      antibodies, that we do know that the -- there are --

      10      that some of the visitors in that community were

      11      positive.

      12             We do know from the ZIP Codes for the

      13      50 percent positive.

      14             ASSEMBLYMEMBER ABINANTI:  Yes, but why can't

      15      you set up -- why --

      16             DR. HOWARD ZUCKER:  In some ZIP codes,

      17      25 percent --

      18             ASSEMBLYMEMBER ABINANTI:  -- let me just

      19      finish my question.

      20             Why can't you set up a protocol where you

      21      actually test the visitors?

      22             Most of the visitors, from what I can

      23      understand, are staying home, socially distanced,

      24      unlike the nursing home staff working several jobs.

      25             I would like to see you set up a process, as









































                                                                   128
       1      soon as possible, to test the visitors; to give them

       2      the questionnaire, check their temperature before

       3      they come in.

       4             SENATOR RIVERA:  Thank you, Assemblymember.

       5                [Indiscernible cross-talking by several

       6        participants.]

       7             SENATOR RIVERA:  [Indiscernible.]

       8             Do you want to respond?

       9             DR. HOWARD ZUCKER:  117 -- yes.

      10             117 nursing homes already have visitation

      11      programs that we have put into place.

      12             We have 209 that have had policies that are

      13      put forth.

      14             We want to move forward.

      15             I really do want to move this forward, I want

      16      to help.  But I also would do not want it to spread.

      17             The reason it goes back to the visitors'

      18      issues, they live in the community, they work in the

      19      community.  Right?  And I just don't want this to

      20      spread.

      21             I recognize it.  I am really, really

      22      empathetic about it.

      23             But I am trying to tell you, I'm trying to

      24      balance two things.

      25             We will set up -- we are working on --









































                                                                   129
       1             SENATOR RIVERA:  Thank you, Commissioner.

       2             DR. HOWARD ZUCKER:  -- all right.

       3             SENATOR RIVERA:  Thank you, Commissioner.

       4             Senator Salazar, recognized for 3 minutes.

       5             SENATOR SALAZAR:  Thank you.

       6             I am unable to -- oh, there we go -- to start

       7      my video.

       8             So I actually want to follow up about the

       9      impact of the blanket legal immunity that was

      10      granted not only to nursing homes, but also to

      11      health-care facilities, like hospitals.

      12             Nearly 70 percent of the nation's COVID-19

      13      deaths came from states, such as New York and

      14      New Jersey, that handed out early blanket legal

      15      immunity.

      16             And while the legislature has since narrowed

      17      the scope of that immunity, there remains a period

      18      of time longer than [indiscernible] months for which

      19      the previous blanket immunity still applies.

      20             Senator Biaggi referenced the egregious

      21      racial disparity in maternal morbidity in New York.

      22             During what I'll call the "blanket immunity

      23      period," from April through part of July, a Black

      24      woman named Sha-Asia Washington died at

      25      Woodhull Hospital in my district.









































                                                                   130
       1             And just because that case received national

       2      attention, Commissioner, are you familiar with

       3      Sha-Asia Washington's case?

       4             DR. HOWARD ZUCKER:  I'm not familiar with it

       5      specifically, although I have read a lot about

       6      different cases.  So it is possible that I am and

       7      I don't recognize the name.

       8             I've read all about these [indiscernible].

       9             SENATOR SALAZAR:  Certainly.

      10             So, just briefly, Sha-Asia wasn't treated for

      11      COVID, but she was treated at -- because of where

      12      she was treated, and because she died on July 2nd,

      13      the medical providers involved in her death, you

      14      know, her anesthesiologist, for example, who had

      15      administered the epidural before she died in

      16      childbirth, within -- in an otherwise completely

      17      healthy pregnancy, the -- her care team still has

      18      blanket legal immunity.

      19             Is -- in your opinion, is it acceptable that

      20      her care team has blanket legal immunity in this

      21      case, and that her family, for example, can't --

      22      doesn't have any recourse because of the previous --

      23             DR. HOWARD ZUCKER:  Right.  So I --

      24             SENATOR SALAZAR:  -- [indiscernible]?

      25             DR. HOWARD ZUCKER:  -- I am here wearing my









































                                                                   131
       1      doctor hat, public health hat.  I'm not wearing my

       2      lawyer hat today.  And I would not, as a -- but

       3      I will comment a little bit as a lawyer.

       4             I will not comment on a case that I don't

       5      even know all the facts to.

       6             So I recognize that.  I feel for individuals.

       7             But I want to go back to what you mentioned

       8      about this immunity.

       9             Two things:

      10             One is, this was not a Greater New York

      11      Hospital Association proposal, or whatever.  And so,

      12      that, I think is an inaccurate statement.

      13             But the second point is that, is that no one,

      14      not the department or anyone, will allow any kind of

      15      egregious behavior to happen, whether it's in a

      16      hospital or a nursing home or anywhere.

      17             That is the premise long before coronavirus,

      18      and it will be long after coronavirus is gone.

      19             And the bottom line is, that the objective

      20      here was to make sure that those who were working,

      21      they would be able to provide the care while we were

      22      in the upsurge of an absolutely unbelievable

      23      pandemic, which is, as I say, still going on.

      24             I am still worried every day.  I am working

      25      every day on this issue.









































                                                                   132
       1             And the reality is, is that I don't want it

       2      coming back to New York.

       3             And many of the questions that have been

       4      raised is, and my answers are, to make sure this

       5      doesn't come back to New York, or doesn't uptick in

       6      New York.

       7             SENATOR SALAZAR:  Sure.

       8             I do -- I realize that I just ran out of

       9      time.

      10             I have one more question, if I may ask it?

      11             SENATOR RIVERA:  10 seconds, really quickly,

      12      please.

      13             SENATOR SALAZAR:  Thank you.

      14             So we know that hired staff-to-patient ratios

      15      in nursing homes are directly related to the quality

      16      of care.

      17             37 states have a higher average of hours of

      18      direct care than New York does.

      19             New York is one of only 12 states that has no

      20      minimum standard for hours of care per staff in

      21      nursing homes specifically.

      22             Do you think it's acceptable that New York,

      23      by that metric, has among the lowest standards of

      24      care in nursing homes?

      25             DR. HOWARD ZUCKER:  Well, number one, I will









































                                                                   133
       1      get back to you about the details, because I want

       2      you -- you've provided me one piece of information

       3      and asked me to respond to it.

       4             And I actually like to have all the facts and

       5      the data before I answer a question like that.

       6             SENATOR SALAZAR:  Thank you.

       7             SENATOR RIVERA:  All right, thank you,

       8      Senator.

       9             Assembly.

      10             ASSEMBLYMEMBER BRONSON:  Yes, the next

      11      questioner we have is Assemblymember Billy Jones.

      12             Assemblymember, you have 3 minutes.

      13             ASSEMBLYMEMBER JONES:  Yes.

      14             Okay?

      15             Thank you.

      16             Thank you, Mr. Commissioner, for being here.

      17             I'm going to go back to the visitations to

      18      our nursing homes.

      19             Can you tell me the percentage of nursing

      20      homes that meet the threshold for the July 10th

      21      criteria that -- from the guidelines that you put

      22      down?

      23             What is the percentage of nursing homes that

      24      are able to meet that threshold right now?

      25             DR. HOWARD ZUCKER:  I'd have to get back to









































                                                                   134
       1      you.

       2             117 have put -- that we have opened up some

       3      form of visitation to, 209.

       4             I probably have in it my papers.

       5             Keep asking your questions and I'll take a

       6      look.  All right?

       7             ASSEMBLYMEMBER JONES:  Okay, well, the

       8      percentage that we had originally a couple of weeks

       9      ago was 12 percent; 12 percent of our nursing homes

      10      could meet that criteria.

      11             That's not a very -- a very high number --

      12      or, a high percentage of nursing homes that can meet

      13      this.

      14             My issue with this is that, obviously, like

      15      many of my colleagues here on this hearing, we're

      16      hearing from the family members, over and over and

      17      over again, that they cannot get visitation to these

      18      facilities.  They can't get that human interaction.

      19             It's been mentioned by several of my

      20      colleagues.

      21             You know, people are, literally, dying of

      22      depression, and lonesome.  Their families are

      23      feeling -- you know, they're suffering through this.

      24             I hear heartbreaking stories every single

      25      day.









































                                                                   135
       1             We need to get a policy in place and some

       2      guidelines in place, obviously, in a safe manner, to

       3      let these family members interact with their loved

       4      ones.

       5             We have mentioned other things, through

       6      technology, and what have you.  And it's been

       7      mentioned by my colleagues, and I think you would

       8      agree, a lot of our elderly residents are not that

       9      great with the technology.  So we have our hiccups

      10      there as well.

      11             We need to do this.

      12             I have another question.

      13             Who provides the guidance, do you provide the

      14      guidance, for DOCCS, for their visitation, which

      15      will be going into effect this week?

      16             DR. HOWARD ZUCKER:  Excuse me.

      17             My report says, what I have here is,

      18      34 percent.  So that's higher than what you have.

      19             We are going to look at the issues of

      20      technology.

      21             And we have been, and that's where that

      22      $1 million for the program to develop technology, to

      23      help those in nursing homes connect with relatives.

      24             We will move forward.

      25             I am a big fan of technology.  And I will









































                                                                   136
       1      figure out a way to adapt wherever is necessary to

       2      help those in the nursing homes.

       3             And with regard to DOCCS, I have to check the

       4      answer on that.

       5             ASSEMBLYMEMBER JONES:  Do you have, does DOH

       6      provide the guidance to DOCCS?

       7             DR. HOWARD ZUCKER:  Well, I have to check

       8      whether -- whether we -- we provide assistance to

       9      DOCCS, and we've been working with them, and we've

      10      done testing in the correctional facilities as well.

      11             And the guidance -- a lot of guidance has

      12      come out by the department of health, that goes

      13      around to other agencies as well.  But then those

      14      also issue their own guidance.

      15             ASSEMBLYMEMBER JONES:  Okay.

      16             DR. HOWARD ZUCKER:  [Indiscernible

      17      cross-talking] --

      18             ASSEMBLYMEMBER JONES:  I guess my point -- my

      19      point here is, you know, long before COVID hit, and

      20      going through this, many of our family members that

      21      have loved ones in nursing homes, they feel like the

      22      forgotten ones.  And they feel like the death toll

      23      that's happened in these nursing homes, and the

      24      carnage, really, that's happened, they're being

      25      punished now through these visitation processes or









































                                                                   137
       1      policies, that they can't see their loved ones.

       2             At the same time --

       3             SENATOR RIVERA:  Thank you, Assemblymember.

       4             ASSEMBLYMEMBER JONES:  -- where we can put

       5      out guidance for DOCCS to do this, we should able to

       6      do this for our loved ones in our nursing homes and

       7      for their family.

       8             SENATOR RIVERA:  Thank you, Assemblymember,

       9      thank you, Assemblymember.

      10             Moving on to the Senate, Ranking Member in

      11      Health, Senator Gallivan, you're recognized for

      12      5 minutes.

      13             SENATOR GALLIVAN:  Thank you, Chairman.

      14             Commissioner, on June 25th there was a

      15      "New York Post" article, where you were quoted, in

      16      responding to a letter that 22 members of the

      17      Majority had sent to you regarding -- a number of

      18      their recommendations regarding nursing homes.

      19             When did you first become aware of the letter

      20      that was sent to you?

      21             DR. HOWARD ZUCKER:  I'd have to go back on

      22      that, I really would.  There's so many letters that

      23      come in.

      24             So, June 25th, even though it's only

      25      two months ago, whatever, or six weeks ago, it feels









































                                                                   138
       1      like a century ago to me.  So I'd have to find out

       2      when it was.

       3             SENATOR GALLIVAN:  Would it be fair to say

       4      that you likely received it near that time, and your

       5      comments came about as a result of the receipt of

       6      it?

       7             DR. HOWARD ZUCKER:  Well, it depends on --

       8      I mean, if it was sent by e-mail, you know, it

       9      comes through and then it gets processed.

      10             And if it was sent by regular mail, there's

      11      another process to it.

      12             But I'd have to go back.  I don't want to

      13      comment, because I don't want to tell you something,

      14      that, yes, I got it the next day or so.

      15             I just don't remember.

      16             SENATOR GALLIVAN:  Understood.

      17             Well, back on March 20th, the governor

      18      announced Matilda's Law.  And that, in particular,

      19      established rules for vulnerable populations, such

      20      as seniors.  And I think at the time, that law

      21      classified "seniors" as the population over 70 years

      22      old.

      23             And, of course, it shows a recognition of the

      24      severe impact the virus could have on a population

      25      like that.









































                                                                   139
       1             But it doesn't seem at all that Matilda's Law

       2      applied to nursing homes, all of whom fit the

       3      definition of that "vulnerable population."

       4             Can you explain how Matilda's Law came to be,

       5      and why it did not include provisions regarding

       6      nursing homes?

       7             DR. HOWARD ZUCKER:  I can speak.

       8             I can tell you it came to be because

       9      Matilda's Law is named after the governor's mom.

      10      And he has recognized what many of us recognize,

      11      from the challenges of -- for those who are older,

      12      and to make sure that their needs are met.

      13             I'd have to go back and go through the

      14      details of Matilda's Law.  But I can tell you that

      15      the governor's commitment to the nursing homes, like

      16      my own, and the rest of the department, and of all

      17      of us, is paramount.

      18             SENATOR GALLIVAN:  So Matilda's Law did not

      19      deal with nursing homes?

      20             DR. HOWARD ZUCKER:  Matilda's Law, I will go

      21      back and listen, but it required -- it required that

      22      there be, you know, masks available for -- to be

      23      sure, that if you're with somebody, that you are

      24      wearing those masks, to make sure that -- if there's

      25      any face-to-face interaction, to make sure that









































                                                                   140
       1      you're not exposing someone to this virus.

       2             And then there are other components of it as

       3      well.

       4             SENATOR GALLIVAN:  So in early March, the

       5      focus from the executive branch was on the hospital

       6      system, and hospital system being prepared,

       7      including providing for necessary PPE and staff.

       8             But it didn't appear that the same measures

       9      were being taken at the same time for nursing homes

      10      and assisted-living facilities.

      11             Why not?

      12             GARRETT RHODES:  Well, I'll read from the

      13      department of health's March 13th health advisory.

      14             COVID-19 cases in nursing homes:  Suspend all

      15      visitors.  Health and temperature checks required

      16      for everyone who enters the building.  Face masks or

      17      masks required for working with residents.  The

      18      cohorting of residents with COVID-19 to dedicated

      19      health-care professionals under the direct-care

      20      providers.

      21             This is March 13th.

      22             The morning of March 13th, New York State

      23      had not reported a single death yet at the time.

      24             There were just several hundred cases when

      25      the department of health got this guidance.









































                                                                   141
       1             So to suggest that there wasn't activity and

       2      inaction being [indiscernible], it's not true.

       3             SENATOR GALLIVAN:  All right.

       4             After the issuance of the March 25th guidance

       5      regarding nursing homes, nursing homes were directed

       6      to contact the department of health in the event

       7      they could not provide adequate care for a patient.

       8      And they were told that the department of health

       9      would be helpful.

      10             If I understand you correctly, you said

      11      that -- Commissioner, that nobody contacted you.

      12             But on April 9th, Cobble Hill Health Center

      13      in Brooklyn, a nursing home there, reported that

      14      they had asked state officials if COVID-19 patients

      15      could be transferred elsewhere.

      16             And they were denied.

      17             How come?

      18             DR. HOWARD ZUCKER:  The people -- if someone

      19      needs to be transferred to another facility, we

      20      would make that happen.

      21             And the reality is, is that the issues -- if

      22      someone called us and said, I would like someone to

      23      be moved to another place, or they needed PPE, or

      24      they needed other assistance, or they needed staff,

      25      we were there to provide that to them.









































                                                                   142
       1             So, you know, everyone keeps saying that they

       2      wanted to move someone.  But sometimes people think

       3      about it, but they didn't reach out to do it.

       4             Whether they thought that they could not

       5      reach out is just a fallacy.  We were available for

       6      anything that needed to come forward.

       7             SENATOR GALLIVAN:  I would just say, if

       8      I could follow up on that, not with a question, but

       9      just to that point, that it was reported in the

      10      "New York Post" --

      11             SENATOR RIVERA:  Senator Gallivan, I'm sorry.

      12      Your time is up.

      13             Your time is up right now [indiscernible

      14      cross-talking] --

      15             SENATOR GALLIVAN:  Okay, Chairman.

      16             Thank you.

      17             SENATOR RIVERA:  Assembly.

      18             DR. HOWARD ZUCKER:  Just the thing -- the

      19      Cobble Hill issue was about staffing, if that's what

      20      you're --

      21             ASSEMBLYMEMBER BRONSON:  All right, moving

      22      on --

      23             DR. HOWARD ZUCKER:  I mean, it's addressed --

      24      it was addressed.

      25             ASSEMBLYMEMBER BRONSON:  -- let's move on to









































                                                                   143
       1      Assemblymember, Ranking Member, Jake Ashby.

       2             My apologies.  I took you out of order.

       3             But you're up now, and you have 5 minutes.

       4             ASSEMBLYMEMBER ASHBY:  Thank you,

       5      Mr. Chairman.

       6             Thank you, Commissioner.

       7             Considering the massive undertaking of

       8      contact tracing, and all of the efforts that have

       9      been put into this, it seems kind of strange to me

      10      that we are going about this in, really, a great way

      11      for everybody across the state.

      12             Shouldn't that extend to our nursing home

      13      residents that went to the hospital?

      14             I mean, if we're able to track people all

      15      over the state, and make sure that, you know, they

      16      haven't come in contact with this person, or, if

      17      they went to this party, and they tested positive,

      18      and we have a positive location on them, how is it

      19      that we don't have a real-time number in nursing

      20      home deaths for people who were -- started from a

      21      nursing home and went to a hospital?

      22             DR. HOWARD ZUCKER:  Well, there's two parts

      23      to this.  Right?

      24             One is about the contact tracing, what's the

      25      objective here?









































                                                                   144
       1             The objective is to prevent the spread of

       2      this disease into the community.

       3             ASSEMBLYMEMBER ASHBY:  Commissioner --

       4      Commissioner --

       5             DR. HOWARD ZUCKER:  [Indiscernible

       6      cross-talking] --

       7             ASSEMBLYMEMBER ASHBY:  -- Commissioner, with

       8      all due respect, I understand the intent of it.

       9             But the basic principles of it is tracing

      10      people.  Right?  You're following people.

      11             And the same principle can be applied to

      12      nursing home residents that were discharged from

      13      their facility and then admitted to a hospital.

      14             And I understand that it may be difficult to

      15      track that down, whether it wasn't through the

      16      admissions department through a hospital.

      17             But, even going through, as you mentioned,

      18      the 613 nursing homes that we have around the state,

      19      they would have a record of whether or not that

      20      person were discharged from their facility or not.

      21      Right?

      22             DR. HOWARD ZUCKER:  Well, and what I'm saying

      23      is, is that, that information, I want to be sure

      24      that we are not double-counting individuals, that

      25      someone didn't die for a different reason,









































                                                                   145
       1      because -- so that's what we're trying to do.

       2             If someone goes into the hospital from a

       3      nursing home, and then they die, or, they -- or --

       4      and they're sick in the hospital, and someone says,

       5      well, they died because of COVID, well, maybe they

       6      died because of something else.

       7             I mean, this is something which I mentioned

       8      about earlier, about pneumonia.  Right?

       9             The presumption by CDC was that, they died,

      10      the 27 percent of people dying in those two months,

      11      was because of pneumonia.

      12             And as the director of the CDC said,

      13      "presumed to be coronavirus."  Right?

      14             But what I want to know is exactly, when

      15      someone dies in the hospital, what did they die

      16      from?

      17             Did they --

      18             ASSEMBLYMEMBER ASHBY:  Okay, [indiscernible

      19      cross-talking] --

      20             DR. HOWARD ZUCKER:  -- were they

      21      [indiscernible cross-talking].

      22             So I understand.  [Indiscernible

      23      cross-talking] --

      24             ASSEMBLYMEMBER ASHBY:  All right,

      25      Commissioner, I understand the reluctance to say









































                                                                   146
       1      whether or not they died from COVID or not.

       2             Do we have a number as to how many people

       3      were discharged from nursing homes and sent to a

       4      hospital?

       5             DR. HOWARD ZUCKER:  And that's the

       6      information that has to come, you know, nursing

       7      homes-reported information.

       8             I want to see what that is, and make sure --

       9             ASSEMBLYMEMBER ASHBY:  Well, we don't have --

      10      we don't even have that information.

      11             GARRETT RHODES:  First of all, we have data.

      12      We put out more data than any other state.  We're

      13      one of nine states that reports presumed and

      14      confirmed deaths.

      15             Multiple states do not report anything to do

      16      with nursing homes.

      17             There's three parts of it: there's collecting

      18      the data, validating the data, and reporting the

      19      data.

      20             We do not release data that we're not

      21      100 percent sure is accurate.

      22             We've had reports of deaths come in from

      23      nursing homes that say, someone died of COVID in

      24      December.

      25             Now, maybe COVID was spreading wildly in









































                                                                   147
       1      December that we didn't know about.  There's a lot

       2      we haven't -- we don't know [indiscernible

       3      cross-talking] --

       4             ASSEMBLYMEMBER ASHBY:  With all due respect,

       5      that wasn't my question.

       6             My question was:  Do we have a figure of how

       7      many were discharged from a nursing home and sent to

       8      the hospital, regardless of diagnosis, but during

       9      that time, if we were tracking that, or they were

      10      suspected or being treated for COVID, because we're

      11      looking at that right now as well?

      12             GARRETT RHODES:  We collected a lot of

      13      different data.  But the key is, to be able to make

      14      sure that it's accurate.

      15             And we will not give ballparks, we will not

      16      give ranges, we're not going to give estimates.

      17      We're going to give the actual data.

      18             We need to collect it.  We need to go back to

      19      the nursing homes, poll them and validate this data,

      20      and release it on a rolling basis.

      21             ASSEMBLYMEMBER ASHBY:  Okay.

      22             All right, my second question is:  If the

      23      March 25th guidance is still standing, why is it

      24      not up on the department of health's website

      25      anymore?









































                                                                   148
       1             DR. HOWARD ZUCKER:  I will check to see

       2      what's where.

       3             It's an active guidance with a lot of

       4      guidances that are out there.

       5             GARRETT RHODES:  I printed it out this

       6      morning, so it was up [indiscernible].

       7             ASSEMBLYMEMBER ASHBY:  I mean, I don't

       8      understand.

       9             If you're making the clarification that this

      10      is still standing guidance from the department of

      11      health, and I'm not sure why it was removed in the

      12      first place if it was still standing, why is it not

      13      back up?

      14             DR. HOWARD ZUCKER:  Well, there's an updated

      15      guidance that is online.

      16             If Garrett said that he just printed it out

      17      this morning, then it must be there.

      18             ASSEMBLYMEMBER ASHBY:  All right.

      19             Regarding -- regarding the transference of

      20      nursing home patients, on May 12th, the media

      21      reported a resident of the Grand Rehabilitation

      22      Nursing Center in New York, which is in my district,

      23      had been transferred to a facility in South Point

      24      without notifying the family.

      25             Were nursing homes permitted to move









































                                                                   149
       1      residents without notifying families?

       2             And is the department of health notified

       3      residents who are moved?

       4             DR. HOWARD ZUCKER:  Nobody -- you know, this

       5      is an ongoing pandemic, as I've said.  And people

       6      need to notify their relatives.

       7             And if something happened where a relative

       8      was not notified, then we will look into that, that

       9      specific case, or any other case of that nature.

      10             A relative should be contacted.

      11             And I will find out [indiscernible].

      12             ASSEMBLYMEMBER ASHBY:  And I understand that.

      13      And I --

      14             SENATOR RIVERA:  Assemblymember, I'm sorry.

      15      Your time is done.

      16             ASSEMBLYMEMBER ASHBY:  Thank you, Chair.

      17             We're moving on to the Senate, recognizing

      18      Senator Helming for 3 minutes.

      19             SENATOR HELMING:  Thank you, Senator Rivera.

      20             Commissioner, thank you for your testimony

      21      today.

      22             For about the past two-plus hours now, I've

      23      listened, Commissioner, as you have responded to

      24      various questions.

      25             I've heard statements that you've made, such









































                                                                   150
       1      as, "let's get through this pandemic," and, "we will

       2      make decisions as the information becomes

       3      available."

       4             I have to say, as someone who has worked my

       5      way through college as a direct-care provider at a

       6      nursing home, and later in life I served as the

       7      director of a senior living facility, that I find

       8      these responses extremely troubling.

       9             The issues surrounding the quality of care in

      10      our nursing homes are not only complex, as we all

      11      know, but they are longstanding.  They've been

      12      around for a number of years.

      13             It is unacceptable, it's frustrating, and

      14      it's heartbreaking for many New Yorkers, including

      15      my family, who lost a loved one living in a nursing

      16      home during this pandemic.

      17             It's just so unbelievable that the great

      18      state of New York was not better prepared to protect

      19      our citizens.

      20             We've all heard of all the issues, like

      21      I said, that there have been around forever, issues

      22      like infection-control lapses.

      23             I've heard stories about:

      24             The lack of PPE.

      25             Nursing home care providers wearing garbage









































                                                                   151
       1      bags or used gowns.

       2             The lack of testing protocols and test

       3      services.

       4             Inadequate and underpaid staffing.

       5             Lack of collaboration; no exchange between

       6      the State and our nursing home representatives.

       7             And, the lack of communication, that I also

       8      experienced, between nursing homes and residents and

       9      their residents' families.

      10             Again, these are issues that have been around

      11      forever, and the pandemic is shining a light on how

      12      significant and how prevalent these shortcomings

      13      really and truly are.

      14             So, Commissioner, you mentioned that there

      15      were 1300 nursing home inspections that were done,

      16      and yet, in spite of that, in spite of all these

      17      things you're talking about that are being done, we

      18      have lost somewhere between 6500 and 12,000 nursing

      19      home residents.

      20             And it just -- it leads me to ask you, you

      21      know, without pointing the finger at the federal

      22      government, what resources does the DOH, what

      23      resources do you need, to do a better job of

      24      protecting our senior citizens?

      25             More financial resources?









































                                                                   152
       1             More staffing?

       2             And the other question I want to ask:  Are

       3      the inspection reports that have been done, are

       4      those available to the public?

       5             For a request that's been submitted, we have

       6      gotten generic responses to.

       7             So I'd like to know if those reports are

       8      available.

       9             DR. HOWARD ZUCKER:  All right.  So I think --

      10      I hear what you're saying.

      11             I will tell you this state and the department

      12      of health has been incredibly aggressive on this

      13      issue.

      14             We have provided -- and I need to reiterate

      15      this:  We have provided 14 million pieces of PPE.

      16      We offered 96,000 volunteers.

      17             SENATOR HELMING:  Dr. Zucker, I'm sorry,

      18      I have to interrupt.

      19             But I have had numerous calls to your office

      20      about the lack of PPE in our rural Upstate New York

      21      areas.

      22             And the fact that you said earlier that that

      23      PPE was given to the counties to distribute, I can

      24      tell you, I have the timelines, the dates, and

      25      everything, that that did not happen in a timely









































                                                                   153
       1      fashion.  And, in some cases, it didn't happen until

       2      it was much too late.

       3             DR. HOWARD ZUCKER:  What I'm telling you is,

       4      that the -- when information came to us that we

       5      needed to provided, we provided it out to the

       6      community.

       7             This is an ongoing pandemic.

       8             Obviously, I bring you back to the PPE issue

       9      because, at the beginning of this pandemic, when

      10      this was already in the community and in the nursing

      11      homes and in our lives, to say the least, the fact

      12      was, that this was -- that this -- we were looking

      13      for more PPE.  And we got [indiscernible].

      14             Senator Rivera is signaling me.

      15             SENATOR HELMING:  And I'll just say, really

      16      quickly --

      17             SENATOR RIVERA:  Thank you -- no, thank you,

      18      Senator --

      19             SENATOR HELMING:  -- in Seneca County we had

      20      no test kits.

      21             SENATOR RIVERA:  -- your time is up, your

      22      time is up.

      23             We've got to squeeze in a couple more.

      24             Assembly.

      25             ASSEMBLYMEMBER BRONSON:  Uh, yes.  The next









































                                                                   154
       1      questioner will be Assemblymember Linda Rosenthal,

       2      and you have 3 minutes.

       3             ASSEMBLYMEMBER ROSENTHAL:  Okay.  Thank you.

       4             Thank you, Commissioner.

       5             I have a facility in my district that is --

       6      oops.

       7             Okay.

       8             Sorry.

       9             I have a facility in my district that is an

      10      assisted-living center, as well as a rent-stabilized

      11      building.

      12             So when we called up DOH to find out if there

      13      were any rules and regulations governing the

      14      assisted living, which has a very elderly

      15      population, they said, "That's not our purview."

      16             Whose purview is that?

      17             And you can just answer, you know, we don't

      18      have one, or, it's someone else's.

      19             DR. HOWARD ZUCKER:  I will get you the

      20      details of where this falls within -- within the

      21      agencies out there on this.

      22             ASSEMBLYMEMBER ROSENTHAL:  Okay.

      23             Because that was very troubling.

      24             I have another rehab and nursing facility

      25      where there were at least 44 confirmed and









































                                                                   155
       1      17 suspected deaths.

       2             At a certain point they lost key workers; for

       3      example, social workers.  So they consolidated all

       4      of the COVID patients on one floor.

       5             A constituent I've worked with for years was

       6      never told, he didn't know where his mother was.

       7             And I wonder, did the DOH reach out to any of

       8      these nursing homes to tell them what the protocol

       9      was if they were lacking staff?

      10             DR. HOWARD ZUCKER:  Constantly.

      11             We constantly reached out to the nursing

      12      homes.

      13             And as we talk about these guidances, there

      14      are guidance documents that have gone out,

      15      124 different guidance documents that came out of

      16      the department --

      17             ASSEMBLYMEMBER ROSENTHAL:  All right, can you

      18      give me an example, how often was each one called?

      19             DR. HOWARD ZUCKER:  -- I -- on a regular

      20      basis they were called.  I can't tell you exactly.

      21             But I do know that I personally have called

      22      one nursing home, probably a couple weeks ago,

      23      five or six times during that week, and been in

      24      contact with them constantly when there was a

      25      concern.









































                                                                   156
       1             And that's just one, and I could tell you

       2      others.

       3             And while managing the pandemic, when I hear

       4      something that was of concern, not only did my team

       5      address it, but I also picked up the phone and

       6      called them.

       7             So to say that we are not aggressive on this

       8      is just not true.

       9             ASSEMBLYMEMBER ROSENTHAL:  No, I didn't say

      10      that.

      11             I just asked how -- who called, how often did

      12      they call?

      13             And you told me you called.

      14             Okay, my next question --

      15             DR. HOWARD ZUCKER:  I will tell you others

      16      did as well.

      17             If there's a specific one, I'll make sure

      18      we'll find out.

      19             ASSEMBLYMEMBER ROSENTHAL:  Okay.

      20             -- and when I called around to facilities in

      21      my district, they said they had no idea how to get

      22      PPE.  And as a result, many did not have PPE for the

      23      longest time.

      24             When did DOH contact them to tell them that

      25      there was PPE available?









































                                                                   157
       1             And did they -- did you ship it to them?

       2             How did you deal with supplying the homes

       3      that did not have access to PPE, with PPE?

       4             What did you tell them to do in the absence

       5      of their having PPE?

       6             DR. HOWARD ZUCKER:  So we work -- first,

       7      I want to add one more thing about this, because you

       8      keep saying whether the department reached out to

       9      the nursing homes.

      10             The nursing homes are also part of an

      11      association, and we worked with the leadership

      12      within the association.  And they also came to us

      13      and said, this is what we need.

      14             So if there was something they needed, I can

      15      get you the details of the specific group of the

      16      PPE.  Then I will let you know exactly what was done

      17      for that group.

      18             We also told people about cohorting.

      19             SENATOR RIVERA:  [Indiscernible.]

      20             DR. HOWARD ZUCKER:  We talked about

      21      verified -- listen, sorry.

      22             Thank you.

      23             SENATOR RIVERA:  Thank you, Commissioner,

      24      because I know your time is limited.

      25             We're moving on to the Senate.









































                                                                   158
       1             Thank you.

       2             Assemblymember -- Senator Thomas, recognized

       3      for 3 minutes.

       4             SENATOR THOMAS:  Hi, Commissioner.  How are

       5      you?

       6             DR. HOWARD ZUCKER:  I'm all right.

       7             SENATOR THOMAS:  Good.

       8             DR. HOWARD ZUCKER:  How are you?

       9             SENATOR THOMAS:  Glad that you can hear me.

      10             All right, so my question -- I have a number

      11      of questions.

      12             I'm going to start with Article 81:

      13      guardianship.

      14             Hopefully, you're familiar with that.

      15             So COVID-19 has had a significant impact on

      16      Article 81 guardianship cases.

      17             As you probably know, or if I can refresh

      18      some of your memory here, guardianship is a legal

      19      arrangement, where a Court gives a person the legal

      20      right to make decisions for an incapacitated person.

      21             So for the duration of COVID-19, Article 81

      22      cases have become unable to move forward because

      23      court evaluators and attorneys have been unable to

      24      meet with their clients in nursing homes.

      25             You know, in June, nursing homes were allowed









































                                                                   159
       1      family members to visit.

       2             This is a yes-or-no answer:  Are non-relative

       3      visitors currently allowed in nursing homes?

       4             DR. HOWARD ZUCKER:  Among the nursing homes

       5      where I mentioned there is visitation, they are

       6      allowed in there, visitors are allowed.

       7             Regarding the specific article that you're

       8      referring to, I'd have to find out how they can have

       9      them go in.

      10             But there are opportunities for them to reach

      11      out to them through telehealth.

      12             So I'm not sure why they haven't been able to

      13      be contacted with those -- those to address some of

      14      their concerns.

      15             SENATOR THOMAS:  I mean, given your

      16      responses, I'm pretty sure you're not familiar with

      17      how this works.

      18             So, you know, are there any steps how the

      19      department of health is taking to carve out some

      20      sort of like rule for court evaluators and attorneys

      21      so that incapacitated persons in the care of nursing

      22      homes can complete the guardianship process?

      23             Is there any [indiscernible cross-talking] --

      24             DR. HOWARD ZUCKER:  So I -- but I don't know

      25      if there are specific rules.  And it may be in a









































                                                                   160
       1      different part of one of the other agencies about

       2      this.

       3             If it's within my department, I'll find out

       4      from the lawyers.

       5             I will tell you that there is the

       6      opportunity, as I said before, to do FaceTime with

       7      the nursing homes.

       8             So you're saying that that's not possible?

       9             I'm not sure why you're saying it.

      10             SENATOR THOMAS:  It's not about it not being

      11      possible.

      12             It takes a little bit more than a Zoom

      13      conference to get things like this done.

      14             But I'll go away from the Article 81.

      15             Let's talk about nursing homes and what they

      16      want [inaudible] --

      17             DR. HOWARD ZUCKER:  Doesn't this fall within

      18      the Office of the Court Administration?

      19             I think this may be a legal thing.  Right?

      20             SENATOR THOMAS:  Yes, it is a legal thing.

      21             It is a legal thing.

      22             DR. HOWARD ZUCKER:  Right, so it may fall in

      23      the Office of the Court -- the OCA (the Office of

      24      the Court Administration).

      25             SENATOR THOMAS:  Okay.









































                                                                   161
       1             So during the whole COVID-19 crisis, we're

       2      still going through it, with nursing homes, you

       3      talked about how, you know, masks and other

       4      equipment were sent to nursing homes.

       5             Now, were there any ventilators that were

       6      sent to nursing homes?

       7             DR. HOWARD ZUCKER:  Well, nurse -- if someone

       8      is ill, this was -- well, this goes back to a very

       9      important point -- and I see the time

      10      [indiscernible] -- is that, when someone is ill in a

      11      nursing home, and they're going to be transferred to

      12      a hospital where they're going to provide the care,

      13      you need to provide the care, tailor the care, to

      14      where it's needed.

      15             And I think this is a really important point

      16      because, many of those who are in nursing homes who

      17      are frail, they will sit there for a couple days

      18      because, often, when someone realizes someone is

      19      sick, they may not realize that they have

      20      coronavirus.

      21             Ultimately, they get transferred to the

      22      hospital because they're critically ill, or ill.

      23             SENATOR THOMAS:  Has the department of health

      24      or the governor's office ever sent ventilators down

      25      to nursing homes?









































                                                                   162
       1             DR. HOWARD ZUCKER:  They don't go to nursing

       2      homes.

       3             If you're that sick, you need to go to a

       4      hospital.

       5             Nobody's going to be able to manage someone

       6      that sick in a nursing home.

       7             And I would not ever want someone to be cared

       8      for, that ill, where they need to be on a ventilator

       9      in an ICU, in a nursing home.

      10             It just wouldn't be the appropriate medical

      11      care.

      12             SENATOR RIVERA:  Thank you, Senator.

      13             Thank you, Senator.  Your time is up.

      14             Thank you, Senator.

      15             Assembly.

      16             ASSEMBLYMEMBER BRONSON:  Yes, we recognize

      17      Assemblymember Aileen Gunther.  You have 3 minutes.

      18             SENATOR RIVERA:  And I will -- and one

      19      thing -- one announcement that I would like to make,

      20      this is the last speaker.  The Commissioner has to

      21      leave after the speaker.

      22             A lot of people will be angry.

      23             That is the reality as we are right now.

      24             So, Ms. Gunther, you have -- you're

      25      recognized for 3 minutes.









































                                                                   163
       1             ASSEMBLYMEMBER BRONSON:  Ms. Gunther?

       2             SENATOR RIVERA:  Assemblymember?

       3             Going once.

       4             Going twice.

       5             ASSEMBLYMEMBER ASHBY:  I'll speak again.

       6             SENATOR RIVERA:  Assemblymember Bronson, do

       7      you have somebody else available immediately to ask

       8      for 3 minutes?

       9             If not, we have to stop.

      10             ASSEMBLYMEMBER BRONSON:  Yes, let's go to

      11      the next assemblymember, Ed Braunstein.  You have

      12      3 minutes.

      13             SENATOR RIVERA:  All right.  Thank you.

      14             You have 3 minutes.

      15             ASSEMBLYMEMBER BRAUNSTEIN:  Hold on one sec.

      16             Okay.

      17             I just snuck in.  I didn't think I was going

      18      to get a question.

      19             I think, starting right at the beginning of

      20      the hearing, Senator Skoufis brought up what a lot

      21      of people have concerns about, is the definition of

      22      "nursing home deaths."

      23             And I think part of the [inaudible] with

      24      confusion of the report, is that we're using a

      25      definition of "nursing home deaths" that other









































                                                                   164
       1      states aren't using.

       2             So I guess I have two questions.

       3             One is:

       4             In the future we do anticipate having the

       5      data of how many people came from a nursing home and

       6      died in a hospital.

       7             Do we anticipate amending the report to

       8      reflect that new data?

       9             And if, in the commissioner's estimation,

      10      will that new data change your conclusions of the

      11      report, or do we believe that the conclusions of the

      12      report will remain the same if we were to enter that

      13      new data?

      14             DR. HOWARD ZUCKER:  I think the conclusion of

      15      the report will remain the same on that.

      16             ASSEMBLYMEMBER BRAUNSTEIN:  Do we anticipate

      17      getting that data and amending the report to reflect

      18      that data?

      19             DR. HOWARD ZUCKER:  The data, like I said,

      20      I know that you -- at the beginning I said I know

      21      you want a number, and I wish I could give it to you

      22      at this point.

      23             But I will get you a number, yes, but I want

      24      to be sure that that data, that we've looked at

      25      everything, and made sure that [indiscernible] that









































                                                                   165
       1      they weren't double-counted.

       2             ASSEMBLYMEMBER BRAUNSTEIN:  I think a lot of

       3      us may reserve judgment about the conclusions of the

       4      report until we have an accurate view of all of the

       5      data.

       6             And we're missing a significant amount of

       7      people who contracted COVID in a nursing home and

       8      then later died in a hospital.

       9             And I just think it would bolster the

      10      conclusions of the report if, at some point in the

      11      future, when you do have that data, maybe you can,

      12      you know, add it in the report, just to, you know,

      13      make sure that this report is accurate.

      14             DR. HOWARD ZUCKER:  I am confident about the

      15      data.

      16             I hear what you're saying.

      17             I will also say that in that report you will

      18      see that there is a curve that shows the deaths from

      19      the nursing homes and deaths in the community, and

      20      they line up.

      21             And I suspect -- not suspect -- that I know

      22      that this will be the same.

      23             GARRETT RHODES:  And I will just add, we're

      24      updating this report down the road.  We can include

      25      what the experience of other states has been.









































                                                                   166
       1             Then this report came out, and I quote the

       2      Mary Mayhew, the Florida Agency for Health-Care

       3      Administration:  [Indiscernible] doors to keep that

       4      virus from getting to our facilities.  Our staff are

       5      human beings who have lives outside of these

       6      facilities.

       7             Nursing home operator in Florida:  The

       8      overwhelming majority of our staff members were

       9      testing positive or asymptomatic.  An indigenous

      10      virus is very difficult to detect after the testing.

      11             So it happened in other states.  I think

      12      you're looking at [indiscernible] --

      13             ASSEMBLYMEMBER BRAUNSTEIN:  I believe with

      14      that new data, the conclusions in the report may, in

      15      fact, be the same.

      16             It's just until we get that data, you know,

      17      I think we have to reserve judgment.

      18             So thank you, Commissioner.

      19             DR. HOWARD ZUCKER:  May I add that, you know,

      20      in one of the slides I showed at the beginning,

      21      about Florida, California, and Texas, this situation

      22      about nursing homes is across the country.

      23             We go back to some issues about different

      24      memos.  But the reality is, other states may not

      25      have issued that memo, but they are seeing the exact









































                                                                   167
       1      same thing that we saw in March about this.

       2             And I think it's important to make a note of

       3      that.

       4             SENATOR RIVERA:  All right.

       5             Thank you, Commissioner.

       6             That concludes the first part, the first

       7      panel, of this hearing.

       8             We will now be taking -- as was stated

       9      earlier by my co-chair, Dick Gottfried, we will be

      10      taking a 10-minute break for water and toiletries,

      11      and then we will be back.

      12             Thank you, Mr. Commissioner.

      13             We will be back in 10 minutes.

      14             DR. HOWARD ZUCKER:  Thank you.

      15                (A recess commenced.)

      16                (The hearing resumed.)

      17             SENATOR RIVERA:  Welcome back, everyone.

      18             Thank you for that break.

      19             Everything should be -- we're going to go

      20      through this -- that's the exact 10-minute timer --

      21      right? -- going off right there.

      22             So next panel, Panel Number 2, will be:

      23             Neil Heyman, president of the Southern

      24      New York Association;

      25             And, Michael Balboni, executive director,









































                                                                   168
       1      Greater New York Health Care Facilities Association.

       2             If you are -- witnesses are both present,

       3      I believe that they are.

       4             ASSEMBLYMEMBER GOTTFRIED:  And do you each

       5      swear or affirm that the testimony you're about to

       6      give is true?

       7             MICHAEL BALBONI:  I do.

       8             SENATOR RIVERA:  All right, we may begin.

       9             I guess, Mr. Balboni -- or, is Mr. Heyman --

      10      is Mr. Heyman here?

      11             All right, Mr. Balboni, you may -- you may --

      12             OFF-SCREEN TECHNICIAN:  He is here.  He is

      13      trying to un-mute.

      14             SENATOR RIVERA:  Oh, he is trying to un-mute.

      15             All right.

      16             ASSEMBLYMEMBER GOTTFRIED:  And while he's

      17      doing that, Mr. Balboni, do you swear or affirm that

      18      the testimony you're about to give is true?

      19             NEIL HEYMAN:  Did I successfully un-mute?

      20             MICHAEL BALBONI:  I do, Mr. Chairman.

      21             ASSEMBLYMEMBER GOTTFRIED:  Okay.

      22             NEIL HEYMAN:  Did I successfully un-mute,

      23      sir?

      24             SENATOR RIVERA:  You did.

      25             NEIL HEYMAN:  Okay.









































                                                                   169
       1             ASSEMBLYMEMBER GOTTFRIED:  And do you swear

       2      or affirm that the testimony you're about to give is

       3      true?

       4             NEIL HEYMAN:  I affirm.

       5             ASSEMBLYMEMBER GOTTFRIED:  Okay.

       6             SENATOR RIVERA:  Okay.

       7             ASSEMBLYMEMBER GOTTFRIED:  Fire away.

       8             NEIL HEYMAN:  Thank you very much.

       9             I appreciate the opportunity to give

      10      testimony today.

      11             My name is Neil Heyman.

      12             I am the CEO of the Southern New York

      13      Association, whose members include 60 residential

      14      health-care facilities in New York City,

      15      Long Island, and Westchester.

      16             I know this has been said before, but I'd

      17      like to emphasize at the outset that we are in the

      18      middle of fighting a pandemic.

      19             We are all on the same side.

      20             Our foe is the virus.

      21             We are facing a situation unprecedented in

      22      living memory, and the crisis is continuing.

      23             Everyone involved faced a steep learning

      24      curve as we all figured out the hard way what worked

      25      and what didn't.









































                                                                   170
       1             Our task now, as I see it, particularly in my

       2      role, is not to cast blame or point fingers, but to

       3      continue moving forward, using the information we've

       4      learned, and then meeting and resolving the

       5      challenges as they arise.

       6             As we all know, and it's been said before,

       7      residential health-care facilities were uniquely

       8      vulnerable, not just in New York as has been said,

       9      and the country, but the entire world.

      10             These folks are elderly, medically-fragile

      11      people.

      12             In these congregate facilities they live,

      13      eat, and socialize in close communal settings.

      14             Staff provide such close hands-on care, which

      15      includes intimate activities such as dressing,

      16      bathing, transferring, and even toileting.

      17             Nevertheless, our homes' dedicated staff have

      18      worked, and continue to work, around the clock to

      19      provide the residents with the care they need.

      20             Now, working closely with the governor, the

      21      state health department, local health and emergency

      22      management authorities, New York's residential

      23      health-care facilities helped begin to show that the

      24      virus can be contained.

      25             Now, our facilities' resiliency and ability









































                                                                   171
       1      to react to the fast-moving crisis can help the

       2      state prepare to respond for the continuing

       3      pandemic, and the looming risk of a new wave of

       4      cases for other states and regions.

       5             Now, some of the key takeaways that we have

       6      learned thus far, which will help us going forward,

       7      are as follows:

       8             Facilities must be able to assure that their

       9      staff, residents, and any visitors have access to

      10      reliable high-quality PPE, even as New York is

      11      increasingly in competition with other states.

      12             Right now, actually, facilities are having

      13      some difficulty trying to get N95 masks.

      14             Regular testing of residents and staff is

      15      valuable if the test results are available within a

      16      reasonably prompt time frame.

      17             Proper infection-control procedures can

      18      successfully contain the virus.

      19             Adapting and enhancing infection-control

      20      protocols from in -- for influenza helped the

      21      nursing facilities to control the spread of

      22      COVID-19.

      23             COVID-only units within facilities, as well

      24      as dedicated COVID-only facilities, can and should

      25      be used, and put together immediately as the









































                                                                   172
       1      caseloads require them.

       2             It is critical that facilities have resources

       3      available to them that will make it possible to

       4      locate, recruit, and retain adequate qualified

       5      staff.

       6             This is particularly important if there is a

       7      surge in the COVID-19 cases.

       8             There are many facilities that have empty

       9      units, and those units can be activated immediately

      10      if there's enough staff to take care of the

      11      residents in those units.

      12             Residential health-care facilities must be

      13      integrated into the state's overall health-care

      14      response so that their space, equipment, and staff

      15      can take part in a coordinated solution.

      16             Sufficient funding is needed for residential

      17      health-care facilities to both continue to operate

      18      and meet the high costs of the necessary pandemic

      19      response.

      20             Over the years, Medicaid reimbursement rates

      21      have been cut by millions of dollars, reaching

      22      significantly below the cost of providing care.

      23             This year, even before the pandemic, New York

      24      made further across-the-board cuts to nursing homes.

      25             The nursing homes have coped with these









































                                                                   173
       1      reimbursement cuts and with the, to date,

       2      unreimbursed costs of mass COVID testing, PPE, and

       3      increased staffing levels needed to cover staff

       4      without [indiscernible] quarantine.

       5             However, without federal or State financial

       6      assistance, facilities will not able to sustain the

       7      effort to combat the virus.

       8             If you combine a low census and increased

       9      costs, it could spell disaster.

      10             Focused statistical data is invaluable in

      11      developing an effective health-care response, but

      12      time-compiling data is time away from residents.

      13             So the State should identify and communicate

      14      the key data sets and reporting intervals it needs

      15      in advance as much as possible.

      16             With the experience that they have gained and

      17      the procedures and protocols they have put in place,

      18      nursing facilities are preparing to care safely for

      19      new residents admitted from the hospitals and the

      20      community up to their pre-pandemic census levels,

      21      both for COVID as well as non-COVID patients.

      22             Residential health-care facilities have the

      23      experience, dedication, resiliency, and adaptability

      24      to play had an important role in New York's ongoing

      25      pandemic response.









































                                                                   174
       1             We look forward to building an effective

       2      collaboration with the State and other health-care

       3      participants.

       4             Thank you very much.

       5             SENATOR RIVERA:  Perfect timing, Mr. Heyman.

       6             Senator, former, Balboni.

       7             MICHAEL BALBONI:  Good [indiscernible], and

       8      thank you very much, the chairmen of this very

       9      important hearing, thanks for doing this.

      10             I can only imagine what it's like for all of

      11      you in the legislature to have to respond to your

      12      constituents in this incredible time of loss and

      13      stress, virtually, because I know many of you, and

      14      I know that you're hands-on and you like to talk to

      15      people directly.

      16             I know that's very difficult in this time.

      17             So let's get down to the questions here.

      18             One of the things that I think many of you

      19      may have known, but some do not, is that not only am

      20      I the executive director of a nursing home

      21      association, but I'm also involved with the

      22      1199 Greater New York Health Fund.  It's a benefit

      23      and pension fund.

      24             And I also do collective negotiation --

      25      collective bargaining negotiations with the









































                                                                   175
       1      1199 Union.

       2             So I get a chance to do regular interface

       3      with the union, and so, the labor workforce, not

       4      only within the metropolitan area, but, frankly,

       5      throughout the state, it's a chief concern to me.

       6             In addition to which, I do have a background

       7      that I think plays into this role, and I was a

       8      former homeland security adviser under two

       9      governors.

      10             And that reminds me of how similar, where we

      11      are today, was in the days following 9/11.

      12             You know, back then, we had never thought a

      13      terrorist attack would come and hit our local police

      14      forces.

      15             Yeah, sure, we trained and designed to try to

      16      get at the root of crime and prevent that, but not

      17      counterterrorism.

      18             Well, the same thing here.

      19             We have a global pandemic that has come and

      20      visited at the doorsteps of our hospitals and our

      21      nursing homes.

      22             And though, sure, decontamination -- or,

      23      contamination control is, in fact, something that we

      24      practice every single day in our health-care

      25      facilities.









































                                                                   176
       1             We never thought we'd have to do it in this

       2      context.

       3             And so what also followed 9/11 was this

       4      federal, state, local, dynamic of:

       5             Well, who should provide the funding?

       6             Where is the guidance?

       7             What are the steps we need to take to

       8      prepare?

       9             As a matter of fact, you know, the crisis and

      10      response for this pandemic actually started 20 years

      11      ago, when secretary of health and human services,

      12      Mike Levitt, came out and said, You know, we ought

      13      to prepare for the anthrax attacks to be doing these

      14      types of things.

      15             And yet every administration has come out

      16      with plans, but the funding has not been there from

      17      the federal government.

      18             Likewise, at the state, you know, you are so

      19      busy doing so many things as it relates to public

      20      health, that to be able to sit there and say, "we

      21      need to prepare at this time for this eventuality,"

      22      when there are so many other things we have to do,

      23      is very -- incredibly difficult.

      24             Now, part of my world now, is I do tabletop

      25      exercise for enterprises, such as, you know, top 100









































                                                                   177
       1      Fortune facilities, and also for enterprises, such

       2      as municipalities.

       3             If I had said to the people back in February,

       4      you know, we're going to imagine a scenario where

       5      every single nursing home is going to go to two,

       6      three, four times X their personal protective

       7      equipment, everyone would have said, you're an

       8      alarmist.

       9             You know, it's one of these things, actually,

      10      Mike Levitt said this, he said, You know, when you

      11      go out early before a pandemic and you say, you

      12      ought to protect yourselves this way, you're called

      13      Chicken Little.  And then after the pandemic you're

      14      called -- well, you've been, frankly, irresponsible

      15      in not preparing more.

      16             So that's the lens through which we must see

      17      all of the response, going forward.

      18             We have to imagine, not a COVID-free

      19      environment, but, rather, an environment that has

      20      less opportunities for the transmission of disease.

      21             And so we must think re -- reimagine health

      22      care.

      23             Examples, you know, telehealth; things that

      24      we could do remotely.

      25             Even thinking beyond that, about robotics.









































                                                                   178
       1             You know, is there a place for robotics in

       2      the health-care industry?

       3             These are the questions that, previous to

       4      this, really didn't get much traction.

       5             Now I think it's imperative for all of us to

       6      do it.

       7             Now, and the other thing is to understand

       8      what the dynamic is at a nursing home.

       9             I'll tell you this:  There is no normal day

      10      in a pandemic.  Absolutely none.

      11             All the assumptions you make are wrong.

      12             The information you receive on a daily basis

      13      could be incomplete, could be inconsistent, could be

      14      contradictory, or could be wrong.

      15             And so an industry that is this regulated,

      16      the constant communication back and forth, that

      17      communication changes.

      18             Look at what is happening with disease.

      19             We are still studying this disease, and

      20      I predict that we are not going to fully understand

      21      the breadth of the impact of this disease for years

      22      to come, because it still keeps on changing.

      23             And imagine trying to run a nursing home with

      24      that type of background of information itself.

      25             We have a lot of things to do.









































                                                                   179
       1             We can talk to funding.

       2             We can talk to personal protective equipment.

       3             You've already taken a step to do that, and

       4      passing a law this year that requires 60 days of

       5      PPE.

       6             We're going to seek to work with the

       7      governor's office to make sure that we have the

       8      right amount of PPE at the right time.

       9             But we also need to recognize that there's

      10      more work to be done in terms of the whole

      11      health-care continuum.

      12             Thank you, Mr. Chairman.

      13             SENATOR RIVERA:  Thank you, Mr. Balboni.

      14             I recognize the Assembly for a first round of

      15      questions.

      16             ASSEMBLYMEMBER BRONSON:  I would ask my

      17      co-chairs and rankers, if you want to speak, if you

      18      would raise your hand.

      19             But not seeing anyone at this point,

      20      Chair Gottfried, would you like an opportunity at

      21      this point?

      22             ASSEMBLYMEMBER GOTTFRIED:  Uh, yes.  Thank

      23      you.  Yeah, I was about to go raise my hand.

      24             A couple of questions about staffing.

      25             You know, when we talk about the "safe









































                                                                   180
       1      staffing" legislation over the years, we are often

       2      told that there's really no evidence that enhancing

       3      staffing is -- you know, increasing staffing levels,

       4      makes any difference, which I've never understood.

       5             Is -- are we learning in this pandemic that

       6      staffing levels have made a difference, and that

       7      increasing staffing levels would make a difference?

       8             NEIL HEYMAN:  If I might, I think that my

       9      view of that, Assemblymember Gottfried, is that what

      10      happens, when the crisis started, is that numbers of

      11      staff people become ill.

      12             So instead of having the number of staff that

      13      we were supposed to have had, we had fewer.  And

      14      that became a problem.

      15             We were trying to get back to normal, so to

      16      speak, back to where we were.  And we played

      17      catch-up for the first six or eight weeks.

      18             So I think that the problem wasn't that we

      19      didn't have enough staff in the first place.

      20             The problem was, as the pandemic caused the

      21      staff to become ill, we didn't have enough staff to

      22      proceed forward.  And that became a crisis.

      23             MICHAEL BALBONI:  Chairman Gottfried, as you

      24      know, the staffing levels were a problem before the

      25      COVID.  And so they've become even more pronounced,









































                                                                   181
       1      as Neil had said, because, you know, a lot of

       2      different things came into play.

       3             Not only did staff become sick, but there was

       4      fear, a realistic fear, of getting sick.

       5             You don't have enough PPE to go to work.  And

       6      so you had families of the staff saying, Don't go to

       7      work.  Don't submit yourself to this.

       8             This -- staffing is also something that we

       9      need to really examine.

      10             You know, one of the things that we had

      11      looked at, and we were pretty successful at, was

      12      going to colleges, nursing schools, and saying,

      13      while somebody is training and learning to be a

      14      nurse, in these types of surge capabilities, we need

      15      to be able to put them into the workplace.

      16             The problem, is that you can say that you've

      17      got a system in place, but you actually have to be

      18      able to look at how you put people in the nursing

      19      homes.

      20             And, by the way, just walking in off the

      21      street, even if you have some nursing information,

      22      is not enough.

      23             You've got to be integrated into the

      24      facility.

      25             ASSEMBLYMEMBER GOTTFRIED:  Some of your









































                                                                   182
       1      facilities -- this is a question I guess for both of

       2      you -- are -- have organized labor in the facility.

       3             I assume some don't.

       4             Does having organized -- an organized

       5      workforce promote better morale, better stability,

       6      in the workforce?

       7             Is it ultimately beneficial for the facility?

       8             MICHAEL BALBONI:  Chairman, it is essential

       9      to have a motivated workforce that is trained

      10      properly and has the right protective equipment.

      11             That is -- when it -- no doubt the most

      12      important thing that you can do.

      13             As you know, 80 percent of a nursing home's

      14      costs is associated with the personnel.

      15             And so there's no way you can provide care

      16      without good staff who come to work, understanding

      17      that they have a mission to do and they can do it

      18      safely.

      19             And there's just been a huge challenge;

      20      again, unprecedented health-care crisis.

      21             We're still learning.

      22             Look at how the strategies have changed,

      23      Chairman.

      24             You know, the strategy initially were, okay,

      25      try to take the patients in, you try to keep them









































                                                                   183
       1      away from other patients.

       2             Now, especially testing and cohorting, that's

       3      something that is a relatively new strategy given,

       4      you know, the last couple of months.

       5             So these are the things we need to take care

       6      of our staff as well.

       7             ASSEMBLYMEMBER GOTTFRIED:  The specific

       8      question is:  Is it beneficial to have a

       9      union-organized workforce?

      10             Does that help support morale and provide

      11      stability in your workforce?

      12             NEIL HEYMAN:  Yes, I think it does.

      13             And, by the way, virtually, all the

      14      facilities are in the union.

      15             Most of them are 1199, but there are other

      16      unions.

      17             So it is, the large majority.

      18             And, yes, we work closely with the union and

      19      union staff, particularly when this crisis hit.

      20             We had conversations with union leadership

      21      because we understood the issues as they surrounded

      22      the staff, and we wanted to keep morale up.

      23             So, overall, yes, working with the union and

      24      cooperating with them, and them with us, does work

      25      well.









































                                                                   184
       1             And in this particular crisis it was very

       2      useful.

       3             ASSEMBLYMEMBER GOTTFRIED:  Thank you.

       4             SENATOR RIVERA:  All right.  Thank you,

       5      Assemblymember.

       6             On our side, leading off with Senator May,

       7      recognized for 5 minutes.

       8             SENATOR MAY:  Thank you.

       9             And thanks for your testimony.

      10             I wanted to ask about staff, we keep talking

      11      about staff.

      12             So I gather some Canadian provinces have

      13      actually taken the step of barring their workers

      14      from working at more than one nursing home site at a

      15      time as a means of limiting spread.

      16             Is that an option that you could envision

      17      here?

      18             Do you have a sense of how many workers

      19      actually work at multiple sites?

      20             And what would be needed in the way of

      21      support to supplement their income, or whatever, so

      22      that they could -- so that we could pull something

      23      like that off?

      24             MICHAEL BALBONI:  So, Neil, let me just take

      25      a quick shot at this.









































                                                                   185
       1             So before the DOH edict about not -- limiting

       2      visitation, a lot of the members in the downstate

       3      area decided to do that on their own.

       4             As a part of that, they also recognized the

       5      fact that there are these journeymen staffers who

       6      are working in more than one facility, whether

       7      they're actual union employees, or they're agency

       8      employees.  And we recognized kind of early on that,

       9      without testing, you don't know what someone might

      10      be bringing into a facility.

      11             You then combine that with not enough PPE,

      12      and you really create a situation that is ripe for

      13      transmission.

      14             So I think you're absolutely right, this is

      15      something that we should really try to stop from

      16      happening itself.

      17             But, of course, that works within -- we have

      18      to partner with the union on that, to make sure that

      19      they understand the risks, that we understand the

      20      risks, and we can come up with a good protocol for

      21      that.

      22             NEIL HEYMAN:  I might add, by the way, if

      23      I could, that as the testing gets more -- becomes

      24      more sophisticated, and as we, you know, get more

      25      involved with the test kits that can actually









































                                                                   186
       1      produce, virtually, instantaneous results that are

       2      accurate, and, hopefully, that will be the case

       3      sometime very soon, we could -- if we test people,

       4      we know that they're testing negative, that would

       5      prevent that spread, even if they went from home or

       6      community to the facility, or from facility to

       7      facility.

       8             I think the key to this is knowing whether or

       9      not the person has the illness, as to whether or not

      10      they would be a danger.

      11             And I think we can get to that point sometime

      12      in the near future and understand what the dangers

      13      are.

      14             SENATOR MAY:  Thank you.

      15             And then I wanted to ask something that came

      16      up a lot in the previous questioning of the

      17      commissioner.

      18             Balancing the -- the just outright saving of

      19      lives in the pandemic, and the quality of life in

      20      the nursing homes, which is often also a determinant

      21      of life expectancy and health in its own right, can

      22      you talk about how you are thinking about this

      23      balance, like, reducing isolation, advocating for

      24      more visiting or less visiting?

      25             How do you balance that out in your own mind









































                                                                   187
       1      and in your own practice?

       2             NEIL HEYMAN:  That's a very [indiscernible

       3      cross-talking] --

       4             MICHAEL BALBONI:  [Indiscernible

       5      cross-talking], you know, there's got to be a

       6      pandemic plan.

       7             That was a very good bill -- very good law

       8      that you passed, and a part of that is the

       9      communication strategy.

      10             You know, again, this is something we haven't

      11      had to do before.

      12             So the inclusion of technology, to be able to

      13      talk to families during this period of time, is one

      14      aspect of it.

      15             But you're absolutely right, and I really

      16      appreciate everybody so far in this hearing

      17      challenging the current etiology as it happened as

      18      it relates to visitation.

      19             I strongly urged the department that they

      20      reconsider the opening of visitation.

      21             This is absolutely essential, because, as you

      22      have all talked about, loneliness is a comorbidity.

      23      It is what is making people sicker.

      24             We need to get people together.  And

      25      you're -- I'm convinced that we can do it safely.









































                                                                   188
       1             That's the other thing, you know, nursing

       2      homes have learned so much about decontamination,

       3      about contamination control.

       4             In fact, I would argue that, in many of the

       5      nursing homes in the state of New York right now, it

       6      is one of the safest facilities in which to put

       7      somebody, because they have learned, and now they

       8      have the equipment, and now they have staff because

       9      they've come back because they're not sick anymore.

      10             NEIL HEYMAN:  I think --

      11             SENATOR MAY:  [Indiscernible cross-talking]

      12      we hear about --

      13             Sorry.

      14             -- just, we hear about family members who

      15      have, typically, been coming in and bathing or

      16      helping with actual care of their loved ones.

      17             And I wonder if you can like deputize family

      18      members as staff, essentially, so that they would

      19      follow the same protocols as staff, or something

      20      like that?

      21             NEIL HEYMAN:  As we get more sophisticated in

      22      our ability to test, and more sophisticated in our

      23      ability to appropriately obtain, utilize, wear, PPE,

      24      that we will probably move in that direction.

      25             I think what's happened now, because we still









































                                                                   189
       1      are in the middle of a pandemic crisis, that

       2      everything is moving a little bit more slowly than

       3      we would have wanted it to.

       4             But I agree 100 percent that loneliness and

       5      being away from families is very difficult, if

       6      not -- I have -- my mother is 94 and she's in a

       7      facility.  I've been going through this myself.

       8             But the fact of the matter is, is that we

       9      want to be careful and do this correctly because we

      10      don't want to reintroduce a problem.

      11             So it's moving along, and the department's

      12      been very cooperative in moving along with us, but

      13      moving along slowly and carefully.

      14             SENATOR MAY:  Okay.

      15             Gustavo, do I have any more time?

      16             I have one more question?

      17             SENATOR RIVERA:  Your time is up.

      18             SENATOR MAY:  Okay.

      19             Well, thank you, both.

      20             SENATOR RIVERA:  Thank you.

      21             Assembly.

      22             ASSEMBLYMEMBER BRONSON:  Yes, thank you,

      23      Senator.

      24             I will go next in asking questions.

      25             And first -- the first question is to both









































                                                                   190
       1      gentlemen.

       2             Are your member organizations, are they made

       3      up of both for-profit and not-for-profit facilities?

       4             NEIL HEYMAN:  Yes.

       5             Yeah, I have some not-for-profits as well as

       6      for-profit.  But it's predominantly not -- it is

       7      predominantly for-profit.

       8             ASSEMBLYMEMBER BRONSON:  Okay.

       9             And are you -- are you getting different

      10      information, or -- regarding the experience,

      11      I guess, of -- if you break it down, for-profit

      12      versus not-for-profit?

      13             NEIL HEYMAN:  I am not hearing anything

      14      different.

      15             I don't think -- and I'm not trying to be

      16      cute, I don't think the virus knows the difference.

      17             I mean, I think that it has taken its own

      18      route, and it's entered all auspice facilities,

      19      whether they be government-run, for-profit, or

      20      not-for-profit, with equal disaster.

      21             So I haven't heard anything different at all.

      22             ASSEMBLYMEMBER BRONSON:  Okay.

      23             Mr. Balboni?

      24             MICHAEL BALBONI:  I don't see a distinction.

      25             ASSEMBLYMEMBER BRONSON:  Okay.









































                                                                   191
       1             Certainly, I agree with you, the virus

       2      doesn't know a difference.  But, certainly, some of

       3      the historical information we have on the different

       4      organizational setup is different for sure.

       5             Looking at some of the issues that you have

       6      pointed out, the regular testing of residents, you

       7      indicated, is an important aspect, Mr. Heyman.

       8             Are you getting test results back in a timely

       9      way?

      10             Is there any backlog, or is that working

      11      smoothly at this point?

      12             NEIL HEYMAN:  It's kind all over the map.

      13      I mean, it depends on the lab that's being used.

      14             A lot of it, it depends.

      15             In some instances they call me back, and it's

      16      not -- you know -- I would -- by the way, what is a

      17      "timely manner"?

      18             "Timely" is enough so that, if a staff

      19      person, in particular, is tested on a Monday

      20      morning, that we know before Tuesday, their next

      21      shift, that they do or don't have the virus.

      22      I mean, that would be very useful.

      23             Ideally, it would be wonderful to have it in

      24      15 minutes so that they can go on to their shift or

      25      not on that very day.









































                                                                   192
       1             But once you get past a 24-hour, or 23-hour,

       2      time period, it becomes problematic.

       3             And there are still some problems in that

       4      vein, and we're not getting the results back as

       5      quickly all over as we would like.

       6             ASSEMBLYMEMBER BRONSON:  Okay.

       7             And in connection with that, are you -- if

       8      you're testing someone that's not exhibiting any

       9      symptoms, and that's one scenario.

      10             But if someone is exhibiting some symptoms,

      11      even if it's a cold or something, are they

      12      instructed not to come to work under that scenario?

      13             MICHAEL BALBONI:  Yes.

      14             NEIL HEYMAN:  Yes.

      15             If they're exhibiting a fever or a cough,

      16      yes.

      17             ASSEMBLYMEMBER BRONSON:  Okay.

      18             And let's talk now regarding the reporting.

      19             And I know -- certainly, hearing from some

      20      facilities up in my area, in the greater Rochester

      21      area, you know, the reporting requirements are

      22      burdensome and difficult.

      23             What's the experience that you're having with

      24      the department of health and all -- you know, the

      25      daily checks that you have to make, reporting back?









































                                                                   193
       1             What's your experience in your areas?

       2             NEIL HEYMAN:  That's actually an excellent

       3      question because, you know, obviously, in the

       4      beginning, when everybody was trying to figure out

       5      what we needed, and how best to do that, there was a

       6      lot of requests, and there were a lot of requests

       7      that were made with a very short time frame, to get

       8      the answers in.

       9             But as we moved through the actual crisis,

      10      it's become a bit more steady and a bit more easy to

      11      deal with.

      12             And as I mentioned in my remarks, I think

      13      that what we want to do, going forward, is actually

      14      work with the department of health, figure out in

      15      advance of the next wave, what we need and when we

      16      need it, so that we can tell the facilities, here's

      17      what you have to be looking for as this thing morphs

      18      into the next phase, and so we can put a little bit

      19      of order to it and make it easier to do and a better

      20      result if we know exactly what we need up front.

      21             MICHAEL BALBONI:  So let me go further.

      22             You know, the hospitals don't have to do

      23      [indiscernible] reporting every day.

      24             Why do the nursing homes?

      25             It is -- the information really doesn't









































                                                                   194
       1      change, so why the constant reporting?

       2             And this is the part of the administrative

       3      oversight burden that has to [indiscernible].

       4             And you say, well, how can reporting be a

       5      burden?

       6             Well, it can be.

       7             But then, generally speaking, you know, the

       8      reporting, not only in New York, but across the

       9      nation, has to be more consistent.

      10             You know, the numbers that we're seeing, the

      11      way it's reported, that's the only way we're really

      12      going to be able to find out how we move forward

      13      from this, and that really comes also at the federal

      14      level.

      15             There needs to be a much better

      16      standardization of reporting across all areas.

      17             ASSEMBLYMEMBER BRONSON:  And the last

      18      questioning is in line with what some of my

      19      colleagues have already brought up, and that is the

      20      staffing levels.

      21             In your written testimony you said that you

      22      need, you know, "critical resources, make it

      23      possible to locate, recruit, and retain adequate,

      24      qualified staff."

      25             This has worsened because of COVID, but that









































                                                                   195
       1      was a problem prior to COVID, at least it is here in

       2      Upstate New York.

       3             What -- I mean, when you say "resources,"

       4      certainly you think dollars and cents.

       5             What other resources might there be?

       6             And my time's up, but go ahead and answer as

       7      quickly as you can.

       8             NEIL HEYMAN:  Well, quickly, as to the

       9      resources, I mean, obviously, it's got to be funded.

      10             But are there training, schools, education,

      11      encouraging people to get involved in the

      12      health-care environment early on?

      13             This is something which is a long-term kind

      14      of project.

      15             And making full utilization of volunteers

      16      which are out there, and full utilization of the

      17      various aspects of what New York City and New York

      18      State did, as far as opening up the various avenues

      19      that we could utilize people who weren't currently

      20      in the field, but had experience in the field.

      21             There are ways do it in the short run and

      22      there are ways to do it in the long run.

      23             And I guess all [indiscernible

      24      cross-talking] --

      25             SENATOR RIVERA:  Thank you, Mr. Heyman.









































                                                                   196
       1             Thank you, Mr. Heyman.

       2             I recognize Senator James Skoufis for

       3      5 minutes.

       4             SENATOR SKOUFIS:  Thank you, Mr. Chairman.

       5             And thanks to you both for your

       6      participation.

       7             I imagine, I think we can all imagine, your

       8      jobs have become exponentially more difficult over

       9      these past five months.

      10             I first want to ask, and I mean this with all

      11      seriousness and respect:

      12             We're obviously asking you to attest to and

      13      to share on-the-ground problems and issues, and how

      14      you've reacted in your member nursing homes.  You

      15      both represent a pretty enormous slice of

      16      New York State's nursing homes.

      17             Can you just briefly share, that would maybe

      18      lend some additional confidence to us, how you have

      19      interacted with your member nursing homes over the

      20      past five months personally?

      21             Have you visited; have you been physically to

      22      many of your member nursing homes?

      23             Have you spoken to workers, in addition to

      24      administrators who I'm sure you do engage with

      25      frequently?









































                                                                   197
       1             Can you just speak to that a little bit?

       2             MICHAEL BALBONI:  If I can?

       3             Yeah.  So we have weekly -- I'm sorry, at one

       4      point in time we had daily board calls, as things

       5      from the department, regulations, directives, were

       6      changed.

       7             And two -- in two weekends, late March,

       8      beginning of February, actually participated,

       9      through the direction of the department, in actually

      10      getting PPE out.

      11             So I was actually a part of a group that was

      12      working out of the Javits Center, and out of the

      13      National Coliseum, of all places, and actually

      14      taking gowns and gloves and putting them on the back

      15      of trucks, and delivering them out, to trying to

      16      assist in terms of what the network was of finding

      17      this very difficult PPE.

      18             You know, on that point, you know, everyone

      19      was saying to me, we have to compete globally for

      20      things like masks and gloves.  You know, it's

      21      really, really difficult.

      22             And they were subject to all sorts of price

      23      gouging [indiscernible cross-talking] --

      24             SENATOR SKOUFIS:  And I'm actually -- I'm

      25      going to focus my questions on the PPE issue, but,









































                                                                   198
       1      just to be clear:

       2             So it sounds like you were on the ground

       3      personally, handing out equipment, visiting nursing

       4      homes, engaging with workers themselves.

       5             Is that accurate?

       6             MICHAEL BALBONI:  That's correct.

       7             SENATOR SKOUFIS:  Okay.

       8             MICHAEL BALBONI:  Neil, you too, I assume?

       9             NEIL HEYMAN:  Yeah -- yes.

      10             And we also, by the way, we did make

      11      tremendous use of the media, you know, being Zoom,

      12      and doing it [indiscernible], because there was an

      13      awful lot that we had to impart to our members,

      14      infection control.

      15             As this was developing, we were imparting

      16      this, and I know Mike was as well, to our members on

      17      a regular basis, [indiscernible] the people online,

      18      [indiscernible] to bring information in, which was

      19      very effective.

      20             SENATOR SKOUFIS:  Right.

      21             Okay, so let me jump into my questions

      22      quickly.

      23             And like I said, I'd like to focus on PPE.

      24             The governor made it very clear, the

      25      challenges associated with getting PPE in those









































                                                                   199
       1      early weeks and months, especially given the federal

       2      government's lack of preparedness.

       3             But even considering that difficulty, as you

       4      heard earlier this morning, up to one in four of

       5      your employees in nursing homes contracted COVID-19,

       6      which are significantly higher rates than transit

       7      workers, police officers, firefighters, other

       8      categories of workers, that were tested during the

       9      pandemic.

      10             How much of that disparity with your workers

      11      do you attribute to the lack of adequate PPE in

      12      nursing homes?

      13             And, as you briefly answer, can you also

      14      speak to whether you believe the State adequately

      15      prioritized PPE for nursing homes from our state

      16      supply?

      17             MICHAEL BALBONI:  So, you know, the

      18      challenge, of course, is, when did this virus impact

      19      us?

      20             You know, that's the thing.

      21             I -- I personally felt that we were --

      22      because we didn't have the right international,

      23      national, surveillance capabilities, we didn't know

      24      that it was already in our environment.

      25             So when you had, you know, the nature of









































                                                                   200
       1      congregate care is that you're incredibly close to

       2      your patients.  And, you know, it's not something

       3      you can do distance-wise.

       4             And so, then, when this first began to ramp

       5      up and people began to get sick, then that is when

       6      the PPE was actually at its lowest, because the burn

       7      rate changed completely.

       8             You know, [indiscernible cross-talking] --

       9             SENATOR SKOUFIS:  If I can just jump in,

      10      because I do have one other question:  Would you say

      11      this was the primary driver of that higher infection

      12      rate among nursing home employees, or do you believe

      13      there was another primary driver?

      14             MICHAEL BALBONI:  Yeah, Senator, you know,

      15      it's really -- it's very difficult to be able to

      16      pinpoint the exact reason for transmission.

      17             You know, you're in a nursing home in Queens,

      18      you send your patients out for dialysis.  Was the --

      19      you know, was the ambulance properly decontaminated?

      20      the dialysis center?

      21             You know, because there's so many different

      22      reasons that a virus could get into a facility, it's

      23      very difficult to pinpoint and say, it's because of

      24      "this" only.

      25             I think it's really a combination of a lot of









































                                                                   201
       1      factors.

       2             SENATOR SKOUFIS:  But this is at the top of

       3      the list?

       4             MICHAEL BALBONI:  This is -- we believe this

       5      is a part of it, because, again, we didn't

       6      understand how this [indiscernible cross-talking] --

       7             SENATOR SKOUFIS:  And what about the State

       8      supply?

       9             Do you believe that the State was adequately

      10      prioritizing nursing homes in our state supply of

      11      PPE?

      12             And I guess this will be my last question.

      13             MICHAEL BALBONI:  The State focused on the

      14      health care and the hospitals first.  And you could

      15      argue that that was exactly the right thing to do at

      16      that time, because they didn't want a collapse of

      17      the hospital network system.

      18             But, again, we would have wish that there

      19      could have been a two-track approach and we really

      20      focused on long-term care as well.

      21             NEIL HEYMAN:  And we believe that to be the

      22      case.  [Indiscernible cross-talking] --

      23             SENATOR RIVERA:  Very quickly, please.

      24      Really quickly.

      25             NEIL HEYMAN:  I said, okay, I'm done.









































                                                                   202
       1             SENATOR RIVERA:  Oh, okay.

       2             Thank you, Senator.

       3             Assembly.

       4             ASSEMBLYMEMBER BRONSON:  Thank you.

       5             Next I recognize Co-Chair McDonald for

       6      5 minutes.

       7             Take off un-mute, John.

       8             ASSEMBLYMAN McDONALD:  There you go, that's

       9      better.  Thank you.

      10             So, gentlemen, thank you for being here, and

      11      what a trial of time for all of you, particularly

      12      those on the front lines.

      13             I have a couple of questions in regards to

      14      environment and approach.

      15             Environment, and we have some speakers later

      16      on on our panels that talk about this.

      17             You know, if you talk to the people in the

      18      engineering industry, and they talk about the virus,

      19      and this argument can actually be held for the

      20      typical influenza virus, you know, relative humidity

      21      plays a large role of whether that virus is going to

      22      be active or dormant.

      23             And relative humidity between 40 and

      24      60 percent, according to the engineers, the virus is

      25      dormant.









































                                                                   203
       1             So this gets into the question of, in your

       2      facilities --

       3             I know this is broad-based, and this is not a

       4      gotcha, it's just a question.

       5             -- is humidity tested for on a regular basis?

       6             And, at the same token, ventilation seems to

       7      be coming up as an issue.

       8             Is this an issue that -- an area where the

       9      State should be focusing its energies on helping

      10      support the -- improving the infrastructure of the

      11      facilities that are out there?

      12             NEIL HEYMAN:  I would respond by saying that,

      13      as we move through this crisis, and as we sort out,

      14      from the scientists and from the epidemiologists,

      15      what works, what doesn't work; what makes sense and

      16      what doesn't make sense, we will be cooperative and

      17      do what makes the most sense to check.

      18             I don't have any personal knowledge right now

      19      of whether or not humidity testing has occurred yet.

      20             But if that is proven to be something that

      21      makes sense, and can prevent the spread of the

      22      disease, there's no question that we will be pleased

      23      to do that.

      24             MICHAEL BALBONI:  You know, something --

      25      we're looking at all aspects of this.  Right?









































                                                                   204
       1             So, we're still seeing studies out of

       2      South Korea that talks about the HVAC being a large

       3      part of the transmission.

       4             You know, this -- obviously, there's lots of

       5      studies around that talk about airborne

       6      transmission.

       7             There's -- we don't really test for humidity

       8      within the ventilation systems.

       9             But there's all sorts of things we could take

      10      a look at, including the introduction of UV light

      11      within humidity -- within the HVAC systems.

      12             So there's a lot of things we really should

      13      talk about, going forward, as innovations in the

      14      health-care system.

      15             ASSEMBLYMAN McDONALD:  Yeah, and it's --

      16      I don't think it's lost to any of us, we've gone

      17      through a lot of herculean efforts to get the malls

      18      open again, and filtrate.  And ventilation was a key

      19      issue [indiscernible].

      20             But, obviously, a place where people call

      21      home, and they're there 24/7, we want to make sure

      22      it's the best proper environment.

      23             Once again, not a gotcha.  It's more about,

      24      how do we help support them.

      25             MICHAEL BALBONI:  Assemblyman, the department









































                                                                   205
       1      does require that the maintenance and vent systems

       2      are cleaned religiously.

       3             You know, so there is -- I don't want to give

       4      anyone the impression that there's no regulations

       5      that they're cleaned.

       6             They are.

       7             ASSEMBLYMAN McDONALD:  But they also -- are

       8      they prescriptive on the type of filters and the

       9      levels of filters?

      10             MICHAEL BALBONI:  Yeah, HEPA filtration are

      11      being looked at right now in terms of what the

      12      standard should be.

      13             There's currently no standard that matches up

      14      to a virus transmission.

      15             ASSEMBLYMAN McDONALD:  Different related

      16      topic: infection control.

      17             And, obviously, that's a very loose term,

      18      that's very critical in many aspects.

      19             I'd like your response.

      20             I have had individuals who actually work in

      21      the long-term-care community, who are just as

      22      serious as you are, say, you know, the approach in

      23      long-term care is not the same as infection control

      24      in the hospital setting.

      25             In the hospital setting, they've got their









































                                                                   206
       1      own department, they've got people running around

       2      doing tests and training, and things like that.

       3             Is that something that -- is that an accurate

       4      statement?  Or would you -- what would you have a

       5      comment to that?

       6             NEIL HEYMAN:  Most of them have

       7      infection-control programs in place, and they've had

       8      them in place for years.

       9             And that's a part and parcel of how they have

      10      to operate.  And they're surveyed by the State of

      11      New York on a regular basis, to make sure their

      12      infection-control programs and protocols are up to

      13      date and accurate.

      14             And for the most part, they are.  But if

      15      there are issues, they get them back up to speed.

      16             So I think that they're there at this point

      17      in time.

      18             MICHAEL BALBONI:  So nursing homes have had

      19      to operate under stringent decontamination control,

      20      you know, infection control, for years.

      21             And -- but that's the old normal.

      22             You know, there's a new normal that's now

      23      emerged.

      24             And we look forward to partnering with the

      25      department to, basically, have a regulatory standard









































                                                                   207
       1      that, in fact, can implement these new standards.

       2             ASSEMBLYMAN McDONALD:  Thank you.

       3             And the intent of my questions is that, we

       4      know there's going to be changes coming.  And we as

       5      a state need to be partner with you to take care of

       6      our most aged and critical.

       7             Thank you.

       8             SENATOR RIVERA:  Thank you.

       9             So I'll recognize myself for 5 minutes.

      10             Gentlemen, thank you for being here.

      11             Did you have the opportunity to listen to the

      12      commissioner that spoke before you folks?

      13             MICHAEL BALBONI:  Sure did.

      14             NEIL HEYMAN:  Yes.

      15             SENATOR RIVERA:  Okay.

      16             So there's a couple things that I wanted to

      17      kind of get your perspective on.

      18             Number one, let's talk about the definition

      19      of "deaths."

      20             Let's talk about the definition of that, and,

      21      in particular, there is this -- there's an

      22      insistence from the commissioner that -- that this

      23      was the right way to do it.

      24             Would -- so -- so if you could tell us a

      25      little bit about the reporting that the nursing









































                                                                   208
       1      homes that you represent, did, and the information

       2      that they kept available to them, as it relates to

       3      what you reported to the State when somebody was a

       4      nursing home patient, and then was admitted, and,

       5      unfortunately, passed away, how does that -- how do

       6      those numbers reported to the State?

       7             MICHAEL BALBONI:  We filed the guide -- we

       8      filed -- followed the guidelines as set forth in

       9      their HERDS survey; in other words, the HERDS survey

      10      has a number of questions, and we all answered

      11      those -- you know, all facilities answered those

      12      questions.

      13             And so we didn't actually take a look outside

      14      and say, well, you know, if it's outside of the

      15      HERDS survey, we need to have an addendum on that.

      16             So, you know -- but the challenge, Senator,

      17      just -- I don't want to make this any more complex

      18      than it already is -- but, it's determining, really,

      19      cause of death.

      20             You know, and when you talk to -- remember,

      21      medical examiners are not involved in the

      22      pronouncement of death.  It is the clinician at each

      23      of the facilities, and, therefore, necessarily,

      24      there's a little bit of subjectivity associated with

      25      that call.









































                                                                   209
       1             So to be able to -- I know a lot of people

       2      take a look at the death count and say, you know,

       3      this has to be accurate.

       4             I'm telling you now that it is not, but

       5      I can't tell you if it is undercounted or

       6      overcounted.

       7             All I can tell you is that, there's no way on

       8      God's green earth that we can actually pinpoint and

       9      say, "this is the reason someone died."

      10             If they had emphysema for 10 years, they're

      11      85 years old, and now they get COVID and they pass

      12      away, you know, what was the cause of death?

      13             Same with heart disease.

      14             So -- because we're still studying the target

      15      audience.

      16             SENATOR RIVERA:  But let's talk about the

      17      reporting that you had to do.

      18             There were four dates -- there was a lot of

      19      pressure on this.

      20             There were four dates in April, and --

      21      between 15th, 16th, 17th, and 18th of April.

      22             And that the reason I want to focus on those

      23      because, even though you may not recall those exact

      24      dates, you probably heard about the series of

      25      emergency meetings, e-mails, calls, and things that









































                                                                   210
       1      your -- that the nursing homes that you represent,

       2      and nursing homes all around the state, were

       3      required to present within just a few hours.

       4             Could you tell us if you recall those times?

       5             Because, as I understand it, there was, like,

       6      for example, on the 15th, there was an e-mail at

       7      11:46 in the morning that said, you're going to have

       8      to get -- you are required to get on a 1:30 call

       9      with the commissioner.  And then, after that, you

      10      have to give us information by the next day.

      11             Do you recall this that I'm talking about?

      12             NEIL HEYMAN:  [Indiscernible.]

      13             MICHAEL BALBONI:  Yeah, listen, I recall it,

      14      Senator, very much.

      15             And it's incredibly frustrating when you have

      16      a change of directive in such a short period of

      17      time.

      18             But let me just make a statement here.

      19      I know that is a lot of controversy surrounding

      20      this.

      21             Neil and I both know, the department of

      22      health staff worked day and night to try to get this

      23      right.

      24             Were their responses and their regulation and

      25      oversight always perfect?









































                                                                   211
       1             No, it wasn't.  But it's in the middle of a

       2      pandemic, an unprecedented time.

       3             And we got on calls almost daily, sometimes

       4      twice a day, to talk to the staff and try to work

       5      things through.

       6             And so when they made these changes, we

       7      weren't always privy of, what was the motivation for

       8      their rapid change, but we knew they had everybody's

       9      best interests in mind, going forward.

      10             So, you know, generalized, it's hard to take

      11      this perfect prism through which we see what the

      12      department did.

      13             But I know that they worked as hard as they

      14      possibly could.

      15             NEIL HEYMAN:  Yeah, if I might also just,

      16      Senator Rivera, yes, there were short time frames,

      17      but, interestingly enough and miraculously enough,

      18      the nursing homes met the time frames.

      19             The department was working night and day and

      20      weekends.  Got the data, analyzed it, and got what

      21      they needed out of it.

      22             So that's why I think [indiscernible

      23      cross-talking] --

      24             SENATOR RIVERA:  [Indiscernible] quickly,

      25      because my time is running out.









































                                                                   212
       1             There are -- because I've heard differing

       2      stories about people being very frustrated, having

       3      very few resources to be able to put the information

       4      out.

       5             They did it, but it was within a very, very

       6      crushed time frame.

       7             Do you think that it would help to have some

       8      sort of -- there's somebody that suggested to me a

       9      committee of operators, or some way that the State

      10      would be able to have a group of operators from

      11      different nursing homes be available to them, so

      12      that when they have suggestions or regulations to

      13      put out there, that they're actually considered,

      14      even for a short period of time, as to how they're

      15      actually going to be implemented, so then they could

      16      actually be implemented to the best of the ability

      17      of particular facilities?

      18             Quickly, because my time is running out.

      19             NEIL HEYMAN:  That's a great idea.

      20             In fact, doing that in advance of the crisis,

      21      as I kind of suggested in my opening remarks, makes

      22      a whole lot of sense, because we've learned now what

      23      we need, we've learned now when we might need it.

      24             So I think that putting together a script and

      25      utilizing the people who are in the field, along









































                                                                   213
       1      with the people in the department, makes all the

       2      sense in the world.

       3             SENATOR RIVERA:  Thank you.

       4             MICHAEL BALBONI:  Yeah, Senator, the

       5      relationship has been ad hoc.

       6             Doing something more formal, actually kind of

       7      creating like a kitchen cabinet, the department, as

       8      they move forward, would be great.

       9             SENATOR RIVERA:  Yep.

      10             My time is up.

      11             Thank you.

      12             Assembly.

      13             ASSEMBLYMEMBER BRONSON:  Next will be, we'll

      14      recognize Assemblymember Ron Kim for 3 minutes.

      15             Assemblymember?

      16             ASSEMBLYMEMBER KIM:  Hi, can you hear me?

      17             ASSEMBLYMEMBER BRONSON:  Yes.

      18             ASSEMBLYMEMBER KIM:  Thank you.

      19             So for years before this pandemic even hit

      20      us, we've known about the understaffed and

      21      underfunded nursing homes, and legislative non-stop

      22      to fix these problems.

      23             On February 6, 2020, the Center for Medicare

      24      and Medicaid Services issued a national memo to all

      25      health-care facilities, warning and instructing them









































                                                                   214
       1      how to prepare for COVID-19.

       2             The public would like to believe that the

       3      State and the facilities took this warning seriously

       4      and prepared health-care facilities.

       5             But when I surveyed close to about a dozen or

       6      so facilities at the peak of the crisis, every

       7      nursing home director told me that the only time

       8      they heard from the department of health is when

       9      they called for fatality numbers.

      10             One administrator even told me, it was never

      11      ending; they called every day to ask how many people

      12      died.

      13             The State never once asked if they needed

      14      PPE, extra staffing, or resources.

      15             Fast-forward to March 23, 2020,

      16      Governor Cuomo passed an executive order to provide

      17      legal protections for front-line medical workers and

      18      volunteers.

      19             Within days, he pushed the new provision in

      20      the budget that brought in this protection to

      21      blanket legal immunity that covers nursing home

      22      executives, CEOs, shareholders, board members, and

      23      for non-COVID treatments as well.

      24             April 2, 2020, the Greater New York Hospitals

      25      Association immediately sent out a press release,









































                                                                   215
       1      asking -- release -- as soon as the governor signed

       2      the budget, claiming that they drafted and

       3      aggressively advocated for this legislation.

       4             Despite early warnings by the CMS and the

       5      global community, we slept-walked into this pandemic

       6      and found ourselves in full panic mode.

       7             And, consequently, it was too late to protect

       8      the patient rights, so the industry lobbied hard for

       9      legal and criminal immunity for health-care

      10      facilities.

      11             Just a yes-or-no question for both panelists:

      12      Did you lobby for legal and criminal immunity for

      13      nursing homes?

      14             MICHAEL BALBONI:  No.

      15             NEIL HEYMAN:  No.

      16             ASSEMBLYMEMBER KIM:  Were you -- when were

      17      you aware of this immunity status, and did you

      18      communicate the legal protection status to your

      19      members?

      20             MICHAEL BALBONI:  We were aware when the

      21      budget was passed, Assemblyman, and signed by the

      22      governor.

      23             And as you know, Article 2-B of the

      24      Executive Law kind of sets the table for doing --

      25      changing a lot of this as it relates to state law.









































                                                                   216
       1             And, you know, much has been made about this,

       2      and it's a very fair description.

       3             But when you think about the different

       4      elements of the care, you know, under New York

       5      law -- right? -- reasonable standard of care is what

       6      you must show has been breached.

       7             As you know, under a pandemic, that standard

       8      of care changes.

       9             And the most difficult aspect of this, in

      10      case somebody is saying to you that, you know, a

      11      case against the nursing home, even without these

      12      protections, would be a slam dunk --

      13             ASSEMBLYMEMBER KIM:  Mr. Balboni, I'm sorry

      14      to cut you off, but my time is up.

      15             I just have one more question.

      16             MICHAEL BALBONI:  Sure, no problem.

      17             ASSEMBLYMEMBER KIM:  Do you think we're

      18      better prepared to prevent the spread and arrange

      19      the care for COVID-positive nursing homes now

      20      [indiscernible cross-talking] --

      21             MICHAEL BALBONI:  Yes.

      22             NEIL HEYMAN:  Absolutely.

      23             ASSEMBLYMEMBER KIM:  -- okay.

      24             Thank you.

      25             SENATOR RIVERA:  Thank you, sir.









































                                                                   217
       1             Apologies.  Trying to squeeze my lunch in.

       2             Recognize Senator Sue Serino for 5 minutes.

       3             SENATOR SERINO:  Thank you very much,

       4      Chairman.

       5             And thank you very much, gentlemen, for being

       6      here with us today.

       7             So I just have a quick question.

       8             If you had to prioritize one thing to change,

       9      to improve the State's response to this crisis in

      10      these facilities, to measurably improve health

      11      outcomes, what would be at the top of your list?

      12             MICHAEL BALBONI:  Senator, can I give you

      13      three things?

      14             Surveillance, resources, and communication,

      15      those are the three things we've really got to focus

      16      on.

      17             Now, Dr. Tom Friedman of New York City, who

      18      was talking a long time ago about something called

      19      "syndromic surveillance," the ability to take a look

      20      across the entire community and see when a disease

      21      state was impacting a community itself.

      22             We should go back and explore this.

      23             Back then, you know, health and human

      24      services, DHS, all looked at the model.  They didn't

      25      believe you could have the sensitivity to actually









































                                                                   218
       1      give you a -- any type of notice that would be

       2      useful, in terms of a disease state.

       3             But we should reexplore that again.

       4             Resources:

       5             You know, everybody is talking about the

       6      funding, everybody is talking about PPE, yes, of

       7      course, those are all.  You know, the staffing,

       8      staffing surge models, we need to look at that.

       9             And the last thing is communications.

      10             You know, it is so difficult to be able to --

      11      you can talk to hospital networks, even that's hard.

      12             But talking to individually-owned -- there

      13      are 614 nursing homes -- it's really difficult to

      14      communicate effectively, real time, with the right

      15      information.

      16             Those are the things we really have to work

      17      on, going forward.

      18             NEIL HEYMAN:  I think if I had to put one up

      19      there, I would put the resources and the funding

      20      necessary, because most everything will flow from

      21      that.

      22             I mean, if the facilities have enough

      23      resources, they can have enough additional staff,

      24      they can cover for staff that are out sick.  They

      25      can get and pay for the PPEs, and they can afford









































                                                                   219
       1      the testing.

       2             So I think the number-one priority, and

       3      whether it's federal dollars, state dollars, or a

       4      combination, is I would say are funding.

       5             And I think it's critical that the existing

       6      rates that the nursing homes have don't get cut any

       7      further because, as I mentioned earlier in my

       8      testimony, I believe that if we don't fund them

       9      appropriately, it will be a threat to the health of

      10      the people in New York, and it's certainly a threat

      11      to the facilities' ability to function.

      12             SENATOR SERINO:  Well -- and thank you both

      13      very much.

      14             And I agree with you the resources are very

      15      important, and to cover our staffing, and

      16      everything.  And I guess everything else would

      17      follow suit.  Right?  The surveillance and the

      18      communication, it makes everything a little bit

      19      easier.

      20             So thank you for everything that you're

      21      doing, and thank you for being here today.

      22             MICHAEL BALBONI:  Thank you, Senator.

      23             NEIL HEYMAN:  Thank you.

      24             SENATOR RIVERA:  Thank you, Senator.

      25             Assembly.









































                                                                   220
       1             ASSEMBLYMEMBER BRONSON:  Ah, yes.  I next

       2      recognize Ranker Kevin Byrne for 5 minutes.

       3             ASSEMBLYMEMBER BYRNE:  Thank you,

       4      Mr. Chairman.

       5             And thank you Mr. Balboni and Heyman.

       6             Just a quick question.

       7             I know it's -- you've talked a lot about the

       8      count of fatalities in nursing facilities, and how

       9      we're counting it, hospital setting or not.

      10             And we spoke to that a little earlier.

      11             There's also been reports about the increase

      12      in vacancy rates at nursing facilities across the

      13      state, a significant increase.

      14             I don't think that reveals, totally, a total

      15      amount of fatalities, but it merits probably further

      16      consideration and review.

      17             Can you share with us what -- how the vacancy

      18      rates have changed since the pandemic began, the

      19      outbreak at the onset, and how you view that?

      20             Is that possibly an indicator of fatalities?

      21             NEIL HEYMAN:  Well, I think the vacancy rates

      22      grew tremendously for several reasons.

      23             Yes, fatalities would be a part of that,

      24      I suppose.

      25             But the fact of the matter is, the hospitals









































                                                                   221
       1      were not performing elective surgery.

       2             Most of the nursing homes' admissions in a

       3      normal period of time, which we may never see again,

       4      come from the hospital discharges from, you know,

       5      hip replacements, and whatever kind of elective

       6      surgical procedures go on, and they're numerous in

       7      the hospitals.

       8             Those ceased.  Those ended.

       9             For a period of months, the hospitals were

      10      just treating only COVID patients, so the nursing

      11      homes didn't have access to their usual -- the usual

      12      kind of admissions.

      13             And that now, by the way, can change, because

      14      the nursing homes have the capacity to take in COVID

      15      patients, and hospital and community patients,

      16      equally.

      17             But, yeah, that was probably the biggest

      18      driver for the tremendous downturn in their

      19      occupancy rate, some of which were down 40 percent.

      20             MICHAEL BALBONI:  So, Assemblyman, you

      21      touched upon -- you touched upon the next crisis

      22      that's going to hit long-term care, and nobody's

      23      talking about this, because it involves the

      24      economics of a nursing home.

      25             If you're below 80 percent census, it means,









































                                                                   222
       1      for a for-profit, you're barely making payroll.

       2             And right now, the census, because of the way

       3      this impacted long-term-care residents, residents

       4      who were there for 10 years, they're not coming back

       5      anytime soon.

       6             Yes, the higher reimbursement rate, as you

       7      know, is tied to the acuity -- right? -- the amount

       8      of services you have to provide.

       9             And so rehabilitation has been higher,

      10      ventilation patients have been higher.

      11             But, right now, nursing homes are in an

      12      incredible struggle to keep their doors open.

      13             And one of the things that we want to point

      14      to is, the State actually -- because of the

      15      reduction in the census, has actually put out less

      16      money towards the payments.

      17             You know, that's, we -- if you combine this,

      18      because, remember, CMS does, in fact, reimburse us,

      19      our X amount of money that we're going to be getting

      20      from the federal government is actually less as

      21      well.

      22             But nobody is taking a look at the economics

      23      of nursing homes.

      24             And you take on top of it, the increased cost

      25      of testing; you take on top of it, the increased









































                                                                   223
       1      cost of the PPE, these are all things that we needed

       2      to do, but is impacting the ability of a nursing

       3      home to stay open.

       4             ASSEMBLYMEMBER BYRNE:  Well, I can certainly

       5      understand how those increased costs for business

       6      and for you to provide your service.

       7             As far as, now that we've been slowly opening

       8      up elective procedures, have you seen a change in

       9      those numbers regarding vacancy rates in the

      10      recent -- in the more recent months, now that we're

      11      past Phase 4, or we're still in Phase 4?

      12             Has that started to trickle back, or are we

      13      still in this kind of holding pattern with the

      14      vacancy rates significantly higher than normal?

      15             MICHAEL BALBONI:  So here's once of the one

      16      of the things that's impacting:  The fact that you

      17      can't visit your loved ones.

      18             People are not willing to send their folks to

      19      nursing homes because they can't visit their loved

      20      ones.

      21             And this was -- there's this concern that

      22      nursing homes are not safe.

      23             So all of those things, combined, are

      24      creating an environment for nursing homes that is --

      25      we've never seen this before.  And it is really









































                                                                   224
       1      becoming a crisis across the entire state.

       2             ASSEMBLYMEMBER BYRNE:  Now, just a question:

       3             Since we talked about it earlier with the

       4      commissioner, regarding the March 25th order, and

       5      then I know there was a different order that came

       6      out later, I believe it was in May, are you of the

       7      understanding that -- were you still of the

       8      understanding that both orders were still fully in

       9      effect, as the commissioner stated?

      10             Or, were you of the understanding that it was

      11      revised, and one of the orders -- the more recent

      12      order was more, I think, geared towards hospitals?

      13             But, if you could just give me your reaction

      14      to that, if that was news to you?  Or, is this

      15      something that you're just continuing to operate

      16      with?

      17             NEIL HEYMAN:  I was aware that the orders

      18      were in effect.  That was no surprise.

      19             ASSEMBLYMEMBER BYRNE:  Okay.

      20             MICHAEL BALBONI:  So there's an irony here,

      21      in that, a COVID patient that has, again, a higher

      22      level of service, actually has a higher

      23      reimbursement rate.

      24             So now that the nursing homes have the

      25      cohorting, have the personal protective equipment,









































                                                                   225
       1      have the staffing, they want these patients; and yet

       2      now they're being told, well, you're not going to --

       3      you know, we're going to try to restrict those

       4      patients from traveling there, so, or being

       5      [indiscernible].

       6             ASSEMBLYMEMBER BYRNE:  Thank you.

       7             SENATOR RIVERA:  Thank you.

       8             And there's currently no Senate members that

       9      are on the list for speaking.

      10             If there are Senate members who are on -- in

      11      this hearing and are interested in speaking, please

      12      let me know.

      13             For the moment, I'll pass it back to the

      14      Assembly.

      15             ASSEMBLYMEMBER BRONSON:  Thank you.

      16             Next I recognize Assemblymember Tom Abinanti

      17      for 3 minutes.

      18             ASSEMBLYMEMBER ABINANTI:  Here we go.

      19             Thank you both for joining us.

      20             I'd like to get back to the issue that I was

      21      raising with the health commissioner before, about

      22      getting family members back in to see their loved

      23      ones.

      24             I [indiscernible] somebody tweeted at me and

      25      said:  They're not visitors.  They're actually part









































                                                                   226
       1      of the staff, they're part of the treatment, they're

       2      part of the help.

       3             And I agree with them on that.

       4             How do we do this?

       5             How do -- has your -- either of your

       6      organizations actually developed a plan that you can

       7      present to the state health department?

       8             Have you made suggestions?

       9             I don't know if you heard me with my

      10      conversation with the health commissioner, similar

      11      to what other members were saying, that, you know,

      12      the family members are just as concerned about the

      13      health of their family members and your residents as

      14      the staff are.

      15             They're not -- they're going to try very hard

      16      to socially distance, they're going to try very hard

      17      to do everything necessary, so they don't bring

      18      COVID into the nursing home to their loved one.

      19             How do we get them in, tomorrow?

      20             You know, this -- this -- using technology

      21      just doesn't work.

      22             What do we do?

      23             Do you guys have a plan?

      24             Can you come up with something and get the

      25      health department on board?









































                                                                   227
       1             MICHAEL BALBONI:  Neil?

       2             NEIL HEYMAN:  Well, actually, you know, the

       3      answer is, no, I don't have an absolute plan.

       4             But what's been going on for the past,

       5      I would say, two months, is the department has had

       6      regular meetings with the nursing homes and with

       7      other long-term-care providers.

       8             And the -- they have asked us on a regular

       9      basis for input, and we have told them, this is a

      10      high priority: we want to have visitation.

      11             And what they've said is, they want to be

      12      careful, to make sure that it's done appropriately,

      13      correctly, safely, and in a way in which they won't

      14      increase the problem accidentally.

      15             But what they've done, and they've always

      16      stuck to this, is when they start to move with us

      17      towards opening that up, or towards reducing the

      18      amount of testing, or towards whatever has to be

      19      done that we think might make sense, they do it

      20      carefully, and they do it with us, and they say,

      21      let's now wait and see what the numbers look like.

      22             So as I understand what the department has

      23      said to me, they opened it up, and I know it's a

      24      high bar to cross to get over.  But now they're

      25      looking at the numbers; they looking to see how this









































                                                                   228
       1      worked thus far.

       2             And although there's not a specific plan in

       3      place, my understanding of what they're doing now,

       4      is they're going to evaluate the numbers, they're

       5      going to look at the facility they've opened up, see

       6      how it works.  And then probably come back

       7      [indiscernible cross-talking] --

       8             ASSEMBLYMEMBER ABINANTI:  That's not the only

       9      factor, though.

      10             MICHAEL BALBONI:  No, it isn't.

      11             And, Assemblymember, you touched upon it.

      12             You know, Massachusetts is doing this.

      13             You know, the hospitals don't have the same

      14      type of thing we do.

      15             So the families have said that they would

      16      test, socially distance outside, you know, all the

      17      different things.

      18             I'm absolutely confident.

      19             I understand the commissioner's concerns, but

      20      I'm absolutely confident that, individually, the

      21      homes can produce a program that will absolutely

      22      limit or eradicate transmission.

      23             ASSEMBLYMEMBER ABINANTI:  Right, because,

      24      right now, as we open up the rest of the world,

      25      nobody's restricting the staff from going out to









































                                                                   229
       1      have dinner outside, to take public transit.

       2             So we [inaudible].

       3             So you don't have any numbers, do you, that

       4      show that there was transmission by family members?

       5             NEIL HEYMAN:  No.

       6             MICHAEL BALBONI:  No.

       7             ASSEMBLYMEMBER ABINANTI:  Okay.

       8             Please come up with a plan and let's get the

       9      health department moving.

      10             ASSEMBLYMEMBER BRONSON:  Okay, thank you,

      11      Assemblymember.

      12             I believe we will go to the next

      13      assemblymember, Inez Dickens.  I recognize you for

      14      3 minutes.

      15             ASSEMBLYMEMBER DICKENS:  Oh, can you hear me,

      16      Mr. Chair?

      17             ASSEMBLYMEMBER BRONSON:  Yes, we can.  Yes,

      18      we can.

      19             ASSEMBLYMEMBER DICKENS:  All right.

      20             Thank you for your testimony.

      21             Some hospitals have considered implementing

      22      plans that would -- a person designated with COVID

      23      has been infected would designate one family member

      24      or friend, and that person would have to agree and

      25      understand the possibilities of visiting the









































                                                                   230
       1      patient.

       2             Just one.

       3             Has the nursing homes thought about

       4      implementing something like that in their plan?

       5             That's one.

       6             Two:  Regardless of the cause of death, why

       7      did it take so long to notify family members during

       8      the pandemic about the passing of their member --

       9      their family member?

      10             Three:  Has your plan included the disposal

      11      of bodies during the pandemic, since hospitals, we

      12      know, have morgues, and nursing homes do not?

      13             And that was a problem during this last

      14      pandemic.

      15             We know staffing is short, and, as such,

      16      prior to the pandemic it was short.

      17             How is that going to be addressed, moving

      18      forward?

      19             If a staff member tests positive, will the

      20      entire staff be notified?

      21             And PPEs were short in hospitals, and,

      22      seemingly, more so in nursing homes.

      23             I understand, you know, that you're talking

      24      about the economics and the funding.

      25             Is that the only way that that can be









































                                                                   231
       1      addressed?

       2             MICHAEL BALBONI:  Assemblymember --

       3             ASSEMBLYMEMBER DICKENS:  The first one is

       4      about -- the first one is about having a family

       5      member or friend for one person.  That would address

       6      mental health.

       7             MICHAEL BALBONI:  Sure.

       8             Again, we're confident we can work with the

       9      department and come up with this protocol.  And, you

      10      know, even having folks just not show up, but having

      11      appointments.  You know, [indiscernible

      12      cross-talking] --

      13             ASSEMBLYMEMBER DICKENS:  Yes, a limit of one

      14      person that they would designate.

      15             NEIL HEYMAN:  I think it would be a good

      16      idea.

      17             MICHAEL BALBONI:  Yeah, [indiscernible

      18      cross-talking].  Right, Neil?  It's absolutely

      19      doable.

      20             NEIL HEYMAN:  It's a very good idea, very

      21      good idea, very good idea.

      22             ASSEMBLYMEMBER DICKENS:  All right, good.

      23             The second thing is about the issue of death.

      24             Why did it take so long during the pandemic

      25      to notify family members that their family person









































                                                                   232
       1      had died?

       2             What was the reason for that?

       3             And that seems to have been so with the

       4      nursing homes.

       5             MICHAEL BALBONI:  Assemblywoman, it's hard to

       6      specifically talk about the entire nursing home

       7      industry.

       8             I know you probably have individual cases, or

       9      individual homes and individual families.

      10             So, you know, some -- some homes did better

      11      jobs of reporting than others.  And sometimes there

      12      was a -- you know, some -- I know of one case where

      13      they simply didn't have the administrative staff to

      14      make the notifications; that the folks were on the

      15      floor, you know, doing patient care.

      16             And so even though, for us, that notification

      17      is so absolutely crucial within the concept of a

      18      pandemic, it's not an excuse, but it might be a

      19      reality for some of the homes trying to respond.

      20             ASSEMBLYMEMBER DICKENS:  Oh, what about the

      21      disposal of remains during the pandemic?

      22             MICHAEL BALBONI:  That is a huge issue.

      23             We lack, not only in terms of the individual

      24      nursing homes, which you're right, do not

      25      [indiscernible] capacity.









































                                                                   233
       1             But the system, the way it's been set up, is

       2      that the office of emergency management in the city

       3      and in the county health agencies, they're supposed

       4      to provide the ability to handle the disposal of

       5      remains.

       6             And what we found was that, you know, there

       7      wasn't enough pickup, and -- but we got that done.

       8             In other words, we needed to surge, and we

       9      got there.

      10             ASSEMBLYMEMBER DICKENS:  Because that's

      11      something that we need to address in anticipation of

      12      another pandemic.

      13             And would staff be notified if one staff

      14      person, or two, have been tested COVID-positive?

      15             SENATOR RIVERA:  Assemblymember, thank you.

      16      Your time is up.

      17             ASSEMBLYMEMBER DICKENS:  All right.

      18             Thank you.

      19             ASSEMBLYMEMBER BRONSON:  Thank you, Inez.

      20             Next up we have, I recognize

      21      Assemblymember Andrew Garbarino for 3 minutes.

      22             Andy, you there?

      23             ASSEMBLYMEMBER GARBARINO:  Yep.

      24             ASSEMBLYMEMBER BRONSON:  There you go.  Okay.

      25             ASSEMBLYMEMBER GARBARINO:  Thank you.









































                                                                   234
       1             Just some quick questions.

       2             Thank you, gentlemen, for coming today and

       3      answering some questions.

       4             I received a call from a local nurse at a

       5      local nursing home.  She said DOH has been at her

       6      nursing home for the last three days, investigating.

       7             Have you heard from other of your members, or

       8      any of your members, that DOH is doing in-depth

       9      investigations into nursing homes around the state?

      10             MICHAEL BALBONI:  They've been doing that for

      11      a while.  Right?  You know, [indiscernible] heard

      12      that.

      13             NEIL HEYMAN:  They have been -- they've been

      14      surveying -- they surveyed all the homes.  And if

      15      they found anything, they would come back and

      16      resurvey, so that, you know -- in most homes, as

      17      I understand it, there weren't problems.  But

      18      I suppose where they found issues, they wanted to

      19      come back and make sure everything was all right.

      20             So that has happened, yes.

      21             ASSEMBLYMEMBER GARBARINO:  Was that -- are

      22      you -- so are you getting any information shared

      23      from, you know, the DOH about what their -- about

      24      their investigations, if there are problems, or from

      25      your members?









































                                                                   235
       1             NEIL HEYMAN:  I haven't gotten any specific

       2      information, no.

       3             MICHAEL BALBONI:  I know that the -- early

       4      on, there's been focus on the number of deaths.

       5      That was a principal focus.

       6             And then -- of course, then it came to, right

       7      now they're doing a survey on the amount of PPE that

       8      each of the facilities have, in order to create a

       9      baseline.

      10             And, by the way, on that, I really appreciate

      11      the way the department of health and the division of

      12      budget has been engaged in this, to try to implement

      13      the law that you guys put into place about PPE.

      14             ASSEMBLYMEMBER GARBARINO:  Another question,

      15      another question from one of my constituents:

      16             She tried to get her mother out of a nursing

      17      home in the middle of the pandemic, but the

      18      facility, according to her, refused to let her

      19      mother leave.

      20             Was that a policy that just some nursing

      21      homes had?

      22             Or is that something, you know, in effect?

      23             Or was it just, you know, you guys don't know

      24      anything about it?

      25             NEIL HEYMAN:  Right, I don't know anything.









































                                                                   236
       1             MICHAEL BALBONI:  Probably the individual.

       2             NEIL HEYMAN:  I'd have to see what the

       3      specific situation was.

       4             I don't know anything about that.

       5             ASSEMBLYMEMBER GARBARINO:  Okay.

       6             And, last, I know Assemblymember Byrne

       7      brought it up, about the March 25th order.

       8             And you both said you know it's still in

       9      effect, and how you couldn't refuse a re-admission

      10      or admission of a patient based on COVID alone.

      11             But the commissioner today made it sound

      12      like, if they -- if the person had COVID, and the

      13      nursing home said, we didn't want the person because

      14      we can't take care of them, that would be good

      15      enough.

      16             Is this something -- or, how are you

      17      answering questions from nursing homes, as to

      18      whether or not, if they don't -- if nursing homes

      19      don't want them?

      20             I know you said some of them do because of a

      21      higher reimbursement rate.

      22             But how are -- are you advising members, if

      23      they don't want them, COVID patients, back, how

      24      do -- what are you telling them so they don't have

      25      to take them?









































                                                                   237
       1             NEIL HEYMAN:  That basic concept, by the way,

       2      of a nursing home not taking a patient because the

       3      facility doesn't feel they can take care of it, goes

       4      across the board.

       5             It's not just for COVID patients.  It's for

       6      any patients.

       7             And so that, if a nursing home feels they

       8      can't take a patient, for whatever reason, we would

       9      help them to find -- or, help them, or have the

      10      department of health help them, find a different

      11      facility.

      12             ASSEMBLYMEMBER GARBARINO:  Specifically with

      13      COVID, though, what are you saying to them --

      14             NEIL HEYMAN:  [Indiscernible

      15      cross-talking] --

      16             ASSEMBLYMEMBER GARBARINO:  -- for the next --

      17      with the next [indiscernible cross-talking] --

      18             NEIL HEYMAN:  -- [indiscernible

      19      cross-talking] --

      20             But what's happened now, and you should know

      21      this, is that, virtually, every facility has put

      22      protocols in place, learned how to cohort, and has

      23      COVID-only units.

      24             So although the question -- the answer to you

      25      question is, yes, I would say, do what you need to









































                                                                   238
       1      do, I would say a vast majority, if not almost all

       2      of them now, have the capacity to take the COVID

       3      patient.

       4             SENATOR RIVERA:  Thank you, Assemblymember.

       5             I actually have one senator.

       6             Senator Biaggi, will be recognized for

       7      3 minutes.

       8             SENATOR BIAGGI:  Thank you very much.

       9             I'm just trying to undo my video.

      10             If someone could just start it for me,

      11      please?

      12             Thank you, very much.

      13             Okay, great.

      14             So, good afternoon.

      15             Thank you very much for being here.

      16             I just have a question about federal

      17      regulation that was put in place in 2016, that

      18      required nursing homes to create pandemic crisis

      19      plans.

      20             I think investigations have shown, and

      21      there's a really great article, actually, talking

      22      about it, that only a fraction of nursing homes have

      23      actually done so.

      24             So I'm wondering if either of your

      25      organizations has done an inventory of the nursing









































                                                                   239
       1      homes, to see which ones have done the plans or

       2      complied with the plans, and which ones have not?

       3             And then, also, what you're doing to ensure

       4      that every single facility has one, moving forward?

       5             MICHAEL BALBONI:  So, Senator, thank you for

       6      that question itself.

       7             We had not done a survey specific to the

       8      federal plans.

       9             That's usually done through the state

      10      department -- state department of health.

      11             But what we are doing, going forward, because

      12      of the law you passed, is that we are hosting

      13      webinars, talking specifically about the acquisition

      14      and maintenance of the PPE and the development of

      15      the plan itself.

      16             And that, remember, as you know, Senators,

      17      it's not just the plan itself, but you have to

      18      exercise.  You've got to make sure that the people

      19      know how to use it.

      20             And so we're urging to create not only the

      21      plans itself, but then the templates for exercising

      22      those plans.

      23             SENATOR BIAGGI:  Okay, so just to be

      24      super-clear:  Then has the department of health not

      25      done outreach to any of your respective nursing









































                                                                   240
       1      homes that you are overseeing, or in your organ --

       2      or part of your organizations, with regard to making

       3      sure there's compliance with this federal

       4      requirement?

       5             MICHAEL BALBONI:  Yeah, Senator, I'll be

       6      honest, I -- before you brought it up, I know that

       7      there was actions at the federal level in 2016.  But

       8      I was not -- we have never really referred to the

       9      pandemic planning as a part of what we need to do

      10      pre-COVID.

      11             You know, again, it was one of these things

      12      where there were a lot of plans.

      13             Remember, after "Sandy," you know, everyone

      14      had to have a generator, and you had to test that

      15      generator?

      16             So there have been regulations layered on

      17      over the years.

      18             I don't believe, in my personal opinion, that

      19      the 2016 federal pandemic plan or requirement that

      20      you're to has actually been something that we've

      21      been talking about as an industry in New York since

      22      that time.

      23             Certainly, because of your actions, we're

      24      going to be talking about it now.

      25             SENATOR BIAGGI:  All right, okay.









































                                                                   241
       1             No, I appreciate it.

       2             I just want to be very clear with everybody,

       3      and just be on the record with this:

       4             That the federal requirement to create this

       5      plan is absolutely something that the department of

       6      health has oversight and enforcement of, and also

       7      has to ensure that there is compliance with.

       8             And so it's [inaudible] --

       9             MICHAEL BALBONI:  Senator, just to get some

      10      information for my crack staff listening to me talk:

      11             So the plan you're referring to is the

      12      Federal Emergency Preparedness Mandate.  And it is

      13      actually all hazards.

      14             Which means, so it's not pandemic-specific,

      15      but is actually all hazards.

      16             So they're part of the whole planning as

      17      well.

      18             So I do believe, as a part of their planning

      19      in response to the all-hazards requirement, that the

      20      they have some -- they have plans in place.

      21             SENATOR BIAGGI:  Okay.

      22             I know my time is up, Senator Rivera.

      23             I just wanted to complete this -- the

      24      thought.

      25             That makes a lot of sense.









































                                                                   242
       1             And, also, because pandemics have already

       2      been present in the state of New York, it would have

       3      been very prudent for the department of health to

       4      have made sure that that was planned for.

       5             So, thank you very much.

       6             SENATOR RIVERA:  Thank you, Senator.

       7             Assembly.

       8             ASSEMBLYMEMBER BRONSON:  We recognize next,

       9      Assemblymember Michael Reilly for 3 minutes.

      10             ASSEMBLYMEMBER REILLY:  Thank you,

      11      Mr. Chair.

      12             Thank you to the panel members.

      13             I have a question regarding -- focusing on

      14      the downstate area, which the hearing is focusing

      15      on.

      16             I represent Staten Island -- a portion of

      17      Staten Island.

      18             During this, the pandemic, how often has the

      19      governor's office or the department of health held

      20      meetings with your organizations to stay on top of

      21      the status each -- each period?

      22             Can you tell me if there's been a certain

      23      amount of meetings, and how often they occurred?

      24             DR. HOWARD ZUCKER:  During the height of it,

      25      Assemblyman?









































                                                                   243
       1             ASSEMBLYMEMBER REILLY:  Yes.

       2             DR. HOWARD ZUCKER:  Like, several times a

       3      day.

       4             NEIL HEYMAN:  And that's weekends and nights.

       5             MICHAEL BALBONI:  Right, [indiscernible]

       6      nights.  Yeah.

       7             ASSEMBLYMEMBER REILLY:  So before -- before

       8      they started getting into those meetings every day,

       9      or every weekend, or the frequency of the meetings,

      10      during the time of the executive order for the

      11      immunity and for the budget discussion, was there

      12      any contact with your agencies in regards to the

      13      implementation of that legislation and that

      14      executive order?

      15             MICHAEL BALBONI:  Are you referring

      16      specifically to the "liability" executive order?

      17             ASSEMBLYMEMBER REILLY:  Yes, yes.

      18             MICHAEL BALBONI:  Okay.

      19             No.  Not that -- Neil, I don't recall.

      20             Do you?

      21             NEIL HEYMAN:  No, I mean, there was early, as

      22      the process started, there was an explanation of

      23      what was out there and what was going on.  And it

      24      was stated to us in some of the meeting that this

      25      was in place.









































                                                                   244
       1             But it was just something they announced at a

       2      meeting and mentioned as part of what was out there.

       3             ASSEMBLYMEMBER REILLY:  So there was no

       4      consultation to the agen -- to the organizations and

       5      the facilities that it actually implemented -- or,

       6      that it impacted, I should say, from the

       7      administration?

       8             MICHAEL BALBONI:  Assemblyman, I think it was

       9      done more -- I can't tell you, you know, what the

      10      mindset was of the governor when this was put out

      11      there.  But I believe it was for the whole

      12      health-care industry.  That it wasn't specific to

      13      any one sector.

      14             ASSEMBLYMEMBER REILLY:  Yeah, no,

      15      I understand that, Mr. Balboni.

      16             I was actually looking to see if there was

      17      any input from those on the ground --

      18             MICHAEL BALBONI:  I see.

      19             ASSEMBLYMEMBER REILLY:  -- before it was

      20      implemented.  That's the reason --

      21             NEIL HEYMAN:  I certainly think it's a good

      22      idea.

      23             It was told to us it was happening.  And

      24      I thought it was a good idea.  I mean -- you know,

      25      but there wasn't any input prior to the -- prior to









































                                                                   245
       1      it coming out.

       2             ASSEMBLYMEMBER REILLY:  During the regional

       3      meetings, or when they had these discussions with

       4      the -- that were led by the governor's office and

       5      the department of health, did they -- did they

       6      include the executives from each county, or the

       7      commissioner from the department of health in

       8      New York City?

       9             MICHAEL BALBONI:  Not with us.  Not with our

      10      meetings.

      11             NEIL HEYMAN:  Not on a regular basis.

      12             But there was interaction between

      13      New York State and New York City at the ground

      14      level, in an attempt to try and get the appropriate

      15      staffing lined up and to coordinate activities.

      16             There were New York City groups doing it and

      17      New York State groups doing it; they invited each

      18      other to participate.  And that did take place.

      19             ASSEMBLYMEMBER REILLY:  So -- I mean, we

      20      talked a lot about --

      21             SENATOR RIVERA:  Your time is up,

      22      Assemblymember.

      23             ASSEMBLYMEMBER REILLY:  -- it would be great

      24      if we included that, moving forward, where all --

      25             SENATOR RIVERA:  Assemblymember -- thank you,









































                                                                   246
       1      Assemblymember.  Your time has expired.

       2             Thank you.

       3             ASSEMBLYMEMBER BRONSON:  Thank you.

       4             The -- I next recognize Assemblyman

       5      John Salka for 3 minutes.

       6             ASSEMBLYMEMBER SALKA:  Hello, can you hear

       7      me?

       8             ASSEMBLYMEMBER BRONSON:  Yes, we can.

       9             ASSEMBLYMEMBER SALKA:  Okay.

      10             Gentlemen, thank you for being here today.

      11             This was a -- this was probably an answer,

      12      and I would have gotten -- preferred to be gotten

      13      from the department of health, but, I'll just run

      14      this by you.

      15             Do you get any indication from your members

      16      on how many, in particular, actually requested help

      17      from the DOH and -- when they couldn't accept a

      18      patient because of their lack of ability to care

      19      properly for the patient?

      20             NEIL HEYMAN:  I don't have any numbers on

      21      that.  I'm sorry.

      22             MICHAEL BALBONI:  And same thing, I don't

      23      have any numbers.

      24             ASSEMBLYMEMBER SALKA:  So you haven't had any

      25      reflection whatsoever from any of your member









































                                                                   247
       1      organizations, that they might have reached out to

       2      the department of health with an issue regarding the

       3      inability to provide proper care?

       4             You didn't get any input at all from any of

       5      the members?

       6             MICHAEL BALBONI:  I've not.

       7             But, Assemblyman, in full transparency,

       8      there, were moments during the pandemic, I remember

       9      two weekends in -- specifically, where we were very

      10      concerned that a nursing home would have to evacuate

      11      their patients, for lack of staff, lack of the

      12      ability.

      13             I mean, they got really close in a couple of

      14      situations.  That didn't have to do with a specific

      15      order or anything else.  That was just due to the

      16      operation, and lack of staffing.

      17             So, you know, again, there is no normal in a

      18      pandemic.  And this really was a war.

      19             ASSEMBLYMEMBER SALKA:  And I understand that.

      20             I just -- what I'm trying to pinpoint here

      21      is, that I know that the governor said that if -- in

      22      one of his press conferences, that if the nursing

      23      homes could not provide adequate care, to reach out

      24      to the department of health.

      25             And we're just trying to get -- put our









































                                                                   248
       1      finger on whether or not that did happen at all.

       2      And if it did happen, how quickly that request was

       3      expedited, so that, of course, the resident got the

       4      best care.

       5             So I was wondering if you had heard anything

       6      at all about that, any reflection from any of your

       7      organizations?

       8             NEIL HEYMAN:  No, I had not heard.  Even

       9      anecdotally, none of my members actually told me

      10      they went through that process.

      11             ASSEMBLYMEMBER SALKA:  Okay.  Thank you.

      12             Thank you, gentlemen; thank you for being

      13      here.

      14             SENATOR RIVERA:  All right, that is all from

      15      the Senate.

      16             Do we still have some from the Assembly?

      17             ASSEMBLYMEMBER BRONSON:  That is all for the

      18      Assembly as well.

      19             Thank you, gentlemen.

      20             SENATOR RIVERA:  All right.

      21             Thank you, Mr. Heyman and Mr. Balboni.

      22             NEIL HEYMAN:  Thank you.

      23             MICHAEL BALBONI:  Thank you very much.

      24             SENATOR RIVERA:  And we are moving on to

      25      Panel 3, which will be:









































                                                                   249
       1             Judy Farrell, the long-term-care ombudsman

       2      from the Tri County Ombudsman Program;

       3             And, Richard Mollot -- and please correct me

       4      if I'm wrong in that pronunciation -- executive

       5      director for Long-Term Care Community Coalition.

       6             Mr. Mollot, is that correct, the correct

       7      pronunciation?

       8             RICHARD MOLLOT:  Thank you.

       9             JUDY FARRELL:  Yes.

      10             ASSEMBLYMEMBER GOTTFRIED:  And just before

      11      I swear them in, I just want to observe, it's been

      12      an hour and twenty minutes since we returned from

      13      our break after the health department.

      14             Two witnesses have testified during that

      15      time.

      16             We have 30 more on the list.

      17             So, do you each swear or affirm that the

      18      testimony you're about to give is true?

      19             RICHARD MOLLOT:  I do.

      20             JUDY FARRELL:  Yes, I do.

      21             ASSEMBLYMEMBER GOTTFRIED:  Okay.

      22             JUDY FARRELL:  Thank you.

      23             RICHARD MOLLOT:  Judy, do you want to go

      24      first?

      25             JUDY FARRELL:  Sure.  Thank you, Richard.









































                                                                   250
       1             Thank you to the chairs and to the Senate and

       2      Assembly for convening this important hearing today,

       3      and allowing me -- inviting me to submit a statement

       4      on the impact of COVID-19 on residential health-care

       5      facilities.

       6             My perspective is based on the hundreds of

       7      heart-breaking conversations that I've had with

       8      families and residents during the peak of the

       9      COVID-19 pandemic.

      10             The facilities are home to thousands of

      11      New York's most vulnerable residents.  Many of these

      12      residents knew each other, shared meals together,

      13      participated in recreational activities, and enjoyed

      14      visits with families and friends.

      15             No one was prepared for the spread of this

      16      horrific virus, the massive death toll, and the

      17      inability to spend precious last minutes of life

      18      comforted by loved ones.

      19             From the beginning, we knew that COVID-19

      20      would take a devastating toll on the elderly,

      21      particularly in long-term-care facilities.

      22             Now we know over 6,000 residents died in a

      23      few short months.

      24             As the new long-term-care ombudsman for

      25      Region 4, which covers Westchester, Rockland, and









































                                                                   251
       1      Putnam counties, I soon became aware that we were

       2      one of the only offices having direct contact with

       3      residents and families during the COVID-19 peak.

       4             And as a long-term-care ombudsman, I received

       5      calls from desperate families, to get any

       6      information on infections in their loved ones'

       7      facility.

       8             I received calls from family members, seeking

       9      to arrange end-of-life compassionate-care visits.

      10             I received calls, asking for assistance with

      11      getting bodies to be released to funeral homes.

      12             While I was able to advocate for residents

      13      and connect some with their families via technology,

      14      or help families safely discharge their loved ones,

      15      residents, families, and facilities were overwhelmed

      16      by the pandemic and living in fear.

      17             Today, months later, families are still not

      18      able to visit loved ones due to the continuing

      19      number of staff testing positive for COVID-19.

      20             It is vital for all of us concerned with the

      21      lives of people living in long-term-care facilities

      22      to find a way to not only protect our elderly and

      23      people with disabilities from future outbreaks, but

      24      to solve the devastating problem of isolation and

      25      lack of human connection that may also impact the









































                                                                   252
       1      mental health, cognitive capacity, and lives of so

       2      many residents and families.

       3             Based on all of the fears and concerns I've

       4      heard expressed to me since COVID-19 swept through

       5      the facilities in my regions, and with over 20 years

       6      of experience in health care and public health,

       7      I offer the following recommendations for your

       8      consideration:

       9             1.  Ensure residents of long-term-care

      10      facilities are represented during New York's

      11      emergency preparedness planning, and that there is

      12      public access to emergency preparedness plans.

      13             2.  Notify families and guardians of

      14      long-term-care residents immediately of imminent

      15      threats to their health and safety.

      16             3.  Share with residents and families,

      17      information about all of the assistance available to

      18      them through times of public health crises,

      19      including the services of the office of the state

      20      long-term-care ombudsman, complaint report hotlines,

      21      and the local department of health.

      22             4.  Continue to invest in and support

      23      technology that allows residents, families, friends,

      24      and representatives to stay connected virtually.

      25             5.  Bring all stakeholders to the table,









































                                                                   253
       1      planning the future of long-term care in New York,

       2      including the representatives of residents.

       3             One final thought.

       4             It has been said that we, as a society, will

       5      be measured by how we treat the most vulnerable.

       6             While we cannot have known, and still do not

       7      know, the full -- fully, the horrific COVID-19

       8      virus, we must all work to ensure that we are

       9      prepared for the next outbreak, and that we do

      10      everything we can to protect New York's most

      11      vulnerable elderly population and people with

      12      disabilities.

      13             Thank you.

      14             RICHARD MOLLOT:  Thanks.

      15             Should I just go ahead?

      16             SENATOR RIVERA:  Yes.  Perfect timing.

      17             RICHARD MOLLOT:  Okay.

      18             Thank you for inviting me to provide

      19      testimony today.

      20             I'm truly grateful, both professionally and

      21      personally, that you're holding these hearings.

      22             My name again is Richard Mollot.  I'm the

      23      executive director of the Long-Term Care Community

      24      Coalition.  We're a non-profit, non-partisan

      25      organization dedicated to improving care and quality









































                                                                   254
       1      of life for residents in nursing homes and other

       2      residential-care settings.

       3             It is well known, as we've discussed today,

       4      that nursing home residents would be particularly

       5      vulnerable to the coronavirus well before it hit the

       6      United States and our home state of New York, based

       7      on how it hit communities in China, Italy, and

       8      Spain.

       9             In fact, our first knowledge of the virus's

      10      entrance into the U.S. was when we witnessed in

      11      horror the devastating impact that it had on

      12      residents and staff in a nursing home in

      13      Washington State.

      14             Despite these warnings, far too little was

      15      done by nursing homes or state and federal leaders

      16      to mitigate the impact of the virus when it came to

      17      New York.

      18             As a result, we lost thousands of residents

      19      to the coronavirus, and, undoubtedly, many thousands

      20      more from the persistent reports we have been

      21      hearing of abject neglect and substandard care in

      22      our facilities.

      23             Fundamentally, and sadly, there's plenty of

      24      blame to go around at every level.

      25             Since we are at the beginning of piecing









































                                                                   255
       1      together what happened, and where we go from here,

       2      I would like to use the remainder of my time to

       3      discuss a few points that we believe are critical to

       4      any discussion of what happened, and how to best

       5      move forward.

       6             First, a few nursing home basics.

       7             Nursing homes are paid and contractually

       8      required to provide good care and humane, dignified

       9      conditions to every resident they accept.

      10             The state department of health is paid and

      11      contractually required to ensure that these

      12      standards are met for every single resident every

      13      day of the year.

      14             The industry complains that it does not

      15      receive enough money to provide decent care and

      16      humane conditions for our elders.

      17             When bad things happen, under normal

      18      circumstances, or as a result of the pandemic, the

      19      industry's inevitable response is that, it is not

      20      their fault and they need more money.

      21             In fact, the industry is increasingly run for

      22      profit with a growing number of chains.  The

      23      industry, both for- and non-profit, is dominated by

      24      sophisticated operators.

      25             As "The New York Times" reported:  Nursing









































                                                                   256
       1      home operators commonly use related-party

       2      transactions to hide profits from Medicaid and

       3      Medicare services.

       4             Nursing homes received a 6.2 percent boost in

       5      Medicaid payment under the Family's First

       6      Coronavirus Relief Act.

       7             They have enjoyed double-digit profits on

       8      Medicare patients for close to 20 years.  And since

       9      October 2019, they have seen a boost in profits as a

      10      result of changes to the federal reimbursement

      11      system.

      12             A few points about what happened leading up

      13      to the pandemic.

      14             We have long known that staffing is a

      15      widespread and persistent problem in our nursing

      16      homes.

      17             We have also known that poor

      18      infection-control protocols are longstanding and

      19      persistent problems.

      20             What we know about what happened so far:

      21             Residents and their families were, and

      22      continue to be, absolutely devastated, as Judy was

      23      saying, by the coronavirus and the abject neglect

      24      residents are experiencing in facilities across the

      25      state.









































                                                                   257
       1             Our preliminary analysis of the data indicate

       2      that New York nursing homes with higher staffing

       3      levels had lower rates of deaths due to COVID.

       4             We have also found that ownership makes a

       5      difference.  For-profit owners have had higher rates

       6      of resident deaths than have non-profit and

       7      county-owned facilities.

       8             There is growing evidence of nursing homes

       9      that avoided deaths, even in hotspots, when they

      10      took basic steps to ensure resident and staff

      11      safety.

      12             Where do we go from here?

      13             1.  We must improve oversight and

      14      accountability for nursing home care in

      15      New York State.

      16             Our research of federal data, New York State

      17      comptroller's audits, even a recent GA --

      18      U.S. Government Accountability Office (GAO) report

      19      on New York, have all indicated that the department

      20      of health must do more to safeguard the safety and

      21      dignity of our residents.

      22             The nursing home standards are strong, but

      23      they are not self-implementing.  They must be

      24      enforced.

      25             2.  We need to join the majority of states









































                                                                   258
       1      that have minimum staffing standards.

       2             3.  We must put in place a medical-loss ratio

       3      to set reasonable limits on how much money nursing

       4      homes can take out in profits or administrative

       5      costs before they allocate any funds to resident

       6      care, including decent, livable wages for nursing

       7      home staff.

       8             Nursing homes are increasingly run for

       9      profit.  Right now, they're getting paid enormous

      10      sums for COVID patients, and bonuses of billions of

      11      dollars are going to the industry through the

      12      stimulus bills.

      13             Excuse me.

      14             Where is that money going?

      15             Where is the accountability?

      16             Thank you again for this opportunity to

      17      provide testimony.

      18             SENATOR RIVERA:  Thank you, sir.

      19             And to lead us off in the Senate will be

      20      Senator James Skoufis, recognized for 5 minutes.

      21             SENATOR SKOUFIS:  Thanks very much.

      22             And thanks to both of you for not just your

      23      testimony, but your service.

      24             Speaking frankly, and this is something that

      25      you did touch on, but I would love to speak at some









































                                                                   259
       1      length about, and I'm disturbed by the State's early

       2      decision to prohibit you all, prohibit ombudsmen and

       3      -women from performing safe, in-person oversight

       4      during the pandemic.

       5             You're -- I'm going to tell you, you're our

       6      watchdogs, you know what to look for, and your very

       7      presence itself oftentimes deters bad behavior.

       8             So, fundamentally, I guess, maybe the most

       9      important question on this matter is:  In your heart

      10      of hearts, do you believe that, if you and your

      11      peers around the state would have been able to save

      12      lives from COVID if able to carry out your duties

      13      over the past five months in nursing homes?

      14             JUDY FARRELL:  I think we were able to speak

      15      to residents and families through technology.  But,

      16      of course, it would have been more effective to be

      17      there in person.

      18             But I don't think -- I think that decision

      19      was right to not allow us to visit in person because

      20      the risk was too great, frankly.

      21             And we not only -- you know, to the ombudsman

      22      staff, but we have volunteers.  And many of them are

      23      retired seniors.

      24             SENATOR SKOUFIS:  And I appreciate that.

      25             And I guess I -- so I have spoken with









































                                                                   260
       1      ombudsmen with a slightly different opinion.  And

       2      they felt that they would have liked very much to be

       3      able to visit in person.

       4             Clearly, you know, there's a -- there's

       5      discrepancy and opinion within your ranks.

       6             I wonder, Richard, as an executive director

       7      of an organization that represents many members, can

       8      you speak to, maybe, what you've heard on this?

       9             Do more ombudsmen and -women feel this was

      10      the right call?  Or do they feel differently, and

      11      wish they would have been able to continue in-person

      12      visits?

      13             RICHARD MOLLOT:  Well, I think -- well, one,

      14      this really came down from the feds.

      15             I think that's important to know that.

      16             It was actually in March that CMS (the

      17      Centers for Medicare & Medicaid Services) put that

      18      blockade up on visitation.

      19             We were against that for both family -- in

      20      respect to both families and ombudsmen at the time.

      21      That was the beginning of March.

      22             However, that was before the disaster,

      23      frankly, really unfolded.  And that's when Judy came

      24      in.

      25             As Judy knows, she's a new ombudsman.









































                                                                   261
       1             So I think, by the time we got to late March,

       2      or mid-March, in New York, it was not an appropriate

       3      time for people to be going in.

       4             However, and this is something that you guys

       5      discussed earlier, I think that there were ways that

       6      the visitation could have been mitigated and done

       7      appropriately earlier on, if better steps had been

       8      put in place to safeguard residents along the way.

       9             And, certainly, this is something that we

      10      have issued, you know, guidelines on for reopening

      11      visitation right now.

      12             I know you guys were just [indiscernible]

      13      too.

      14             SENATOR SKOUFIS:  Just to be clear, the State

      15      didn't have a choice on this issue?

      16             RICHARD MOLLOT:  Correct.

      17             But the State does have a choice now in terms

      18      of visitation.

      19             But it didn't then.

      20             SENATOR SKOUFIS:  Okay.

      21             And, you know, my team and I, we

      22      received some testimony from an ombudsman out in

      23      Western New York, that reads, in part:  Both prior

      24      to -- prior to, during the pandemic, and still, when

      25      I attempt phone calls to certain facilities, I am









































                                                                   262
       1      refused access, or, too often, the phone line rings

       2      indefinitely, never to be answered.

       3             Can you speak to the prevalence of that sort

       4      of problem, where there is just complete

       5      unresponsiveness, outright refusal, both during this

       6      pandemic --

       7             Well, certainly the "refusal to visit" part

       8      has been addressed.

       9             -- but even more generally than that?

      10             RICHARD MOLLOT:  Judy?

      11             JUDY FARRELL:  I was able to get through the

      12      many facilities.

      13             But I do -- had -- did hear from families,

      14      that they had difficulty getting through the

      15      facilities, and difficulty getting calls back.

      16             SENATOR SKOUFIS:  So what do you do at that

      17      point?

      18             JUDY FARRELL:  Then I call.

      19             If families are having difficulty, they've

      20      called me.  I mean, that's how -- the ombudsman

      21      program is very resident-focused.  And it's at the

      22      request of the resident or their family, you know,

      23      that we're able to call the facility directly, and

      24      connect them with that resident's family, so that

      25      their loved ones can communicate with them, and get









































                                                                   263
       1      information on their status if they're not able to

       2      communicate.

       3             SENATOR SKOUFIS:  So it sounds like you

       4      haven't had any problems personally with

       5      unresponsiveness to you.

       6             I'm wondering if, Richard, the -- what

       7      I shared is prevalent among other ombuds members who

       8      have, you know, maybe a longer history due to the

       9      work?

      10             RICHARD MOLLOT:  I think -- I mean, that's

      11      really what we're hearing is, unfortunately a mixed

      12      bag.

      13             And I've been on a number of family calls as

      14      well over the past several months, and certainly

      15      spoken to a lot of ombudsmen, that it's,

      16      unfortunately, as I said at the start of my

      17      testimony, there's blame at every level.

      18             And I think, really, the lack of direction,

      19      and leaving it up to facilities, some facilities did

      20      a great job with reaching out to families and to

      21      residents.

      22             Some of them, frankly, a lot of them, did a

      23      really poor job, and that made it really hard to get

      24      to people.

      25             And we heard, you know, just someone had









































                                                                   264
       1      mentioned previously --

       2             SENATOR RIVERA:  [Indiscernible] --

       3             RICHARD MOLLOT:  -- about not hearing about

       4      [indiscernible cross-talking] --

       5             SENATOR RIVERA:  -- we're out of time, so

       6      please wrap up, please wrap up.

       7             RICHARD MOLLOT:  -- not even hearing about

       8      deaths of their families until well after the

       9      resident had died, their family members.

      10             Excuse me.

      11             SENATOR RIVERA:  Thank you so much.

      12             Assembly.

      13             ASSEMBLYMEMBER BRONSON:  Uh, yes.  We

      14      recognize Co-Chair Dick Gottfried for 5 minutes.

      15             ASSEMBLYMEMBER GOTTFRIED:  Thank you.

      16             Richard Mollot, in discussing the pandemic,

      17      I've been saying several things, and I'm just

      18      interested in your take on them.

      19             Basically, that, for years, long before

      20      COVID, our nursing homes were suffering from

      21      inadequate staffing, inadequate staffing of the

      22      health department's enforcement personnel, and a

      23      fairly lax attitude among the enforcement personnel,

      24      and a chronic inadequacy of funding, particularly

      25      from the Medicaid program.  And that all of that,









































                                                                   265
       1      that long preexisted COVID, has made all of the

       2      problems of COVID much worse.

       3             Does that square with your vision of things?

       4             RICHARD MOLLOT:  Yeah, it does.

       5             I mean, we have longstanding problems with

       6      staffing in this state.

       7             And, with infection control, it's a

       8      nationwide issue.  It's the most cited deficiency,

       9      last year, was failure to provide appropriate

      10      infection-control protocols.

      11             I know you guys discussed that a little bit

      12      earlier.

      13             It's, really, you know, all this stuff is

      14      basic.

      15             It's handwashing.  It's using basic common

      16      sense of washing your hands or changing your gloves

      17      when you go from caring for one resident to another.

      18             It's not brain surgery.

      19             But it really comes down, as you're saying,

      20      Assemblymember Gottfried, to staffing, because if

      21      you have enough staff and the staff are trained,

      22      then they know to do that.  They don't have to rush

      23      from one resident to another.  They can stop and

      24      wash their hands.

      25             So it's really basic stuff.









































                                                                   266
       1             In terms of funding, I think, obviously, the,

       2      you know, Medicare program pays a lot more money

       3      than the Medicaid program does.  And it's, frankly,

       4      due to a lack of transparency and accountability

       5      with how -- where funds go.

       6             As I mentioned, you know, briefly in my

       7      testimony, it's really hard to say how much, you

       8      know, we need to pay, et cetera.

       9             I think that it would make sense to have a

      10      payment system that reimbursed appropriately for

      11      good care.  We all want to see that, but that

      12      requires some transparency and accountability as

      13      well.

      14             ASSEMBLYMEMBER GOTTFRIED:  You used the --

      15      you referred to setting up a -- what you called, a

      16      "medical-loss ratio," a term borrowed from the

      17      insurance world, to, essentially, require a facility

      18      to demonstrate spending a certain percentage of

      19      their revenue, I guess, on patient care and services

      20      before they could draw profit.

      21             And I'd like to, obviously not right now,

      22      talk at much greater length with you about that.

      23             Is that -- is there legislation like that in

      24      place in some other states?

      25             RICHARD MOLLOT:  No, not that I'm aware of,









































                                                                   267
       1      in terms of -- not for nursing homes.

       2             There is for, of course, as you mentioned,

       3      for -- in the insurance world.

       4             But it's something that we have -- we have

       5      become aware of just in the last few years.

       6             And as I quickly noted in your testimony,

       7      something that we've seen over the last, you know,

       8      15 or so years, is that the nursing home industry

       9      has become increasingly sophisticated.

      10             So one way to kind of address that

      11      sophistication, you know, hiding assets in LLCs,

      12      hiding assets by selling the underlying property to

      13      yourself, and then paying yourself rent at above

      14      market rates, those kinds of things, would be to get

      15      at a way of accountability.

      16             And so we borrowed that.

      17             And I didn't come up with this idea.  These

      18      were actually academic experts, and, you know, then

      19      we looked into it afterwards.

      20             And it made sense to have some kind of

      21      structure so that you couldn't pull out, you know,

      22      a million and a half dollars in administrative

      23      salaries, you know, for the administrator, for one

      24      person, per year, and then turn around and say,

      25      well, I'm not making enough money to provide decent









































                                                                   268
       1      staffing for my residents or to pay a livable wage

       2      for my staff.

       3             ASSEMBLYMEMBER GOTTFRIED:  Is this

       4      predominantly a problem on the for-profit side, or

       5      are there facilities on the not-for-profit side that

       6      are doing this sort of thing?

       7             RICHARD MOLLOT:  Yes to both.

       8             I think it's more predominant on the

       9      for-profit side.

      10             But I think that there are facilities in the

      11      not-for-profit side that are increasingly

      12      sophisticated in their financial structure, and that

      13      money is not going necessarily to provide resident

      14      care.

      15             ASSEMBLYMEMBER GOTTFRIED:  Okay.

      16             SENATOR RIVERA:  Your time is up,

      17      Assemblymember.

      18             ASSEMBLYMEMBER GOTTFRIED:  That's fine.

      19             Thanks.

      20             SENATOR RIVERA:  Of course, Senator --

      21      followed up by Senator Rachel May, recognized for

      22      5 minutes.

      23             SENATOR MAY:  Thank you.

      24             And thanks for this testimony.

      25             Ms. Farrell, I can't believe this, what a









































                                                                   269
       1      time to be new in this job.  This must be amazingly

       2      difficult.

       3             I had a number of questions about the

       4      ombudsman program.

       5             I want you to know that I fought really hard

       6      in the budget, before the pandemic exploded, for

       7      more funding for this program.  And this has been on

       8      my mind for a long time.

       9             So, first of all, just a simple question:

      10      How well do you think residents and their families

      11      know about the ombuds program?

      12             JUDY FARRELL:  I think it could be shared

      13      more widely.

      14             I think, you know, the nursing homes and

      15      other long-term-care facilities are provided with

      16      the information and the contact information.  There

      17      are posters in every facility.

      18             But I really think, until there's a crisis,

      19      unfortunately, this pandemic is the worst crisis you

      20      can imagine, that people, you know, then ask for the

      21      number.

      22             But I think that it could be shared more

      23      widely with families, and with the community,

      24      frankly, so that people know, if they know someone

      25      in the nursing home that has an issue, that they can









































                                                                   270
       1      call us.

       2             And we're trying to do that, the ombudsman's

       3      office.  But we -- you know, we have a very small

       4      budget.  And I think getting the word out is really

       5      important.

       6             SENATOR MAY:  Right.

       7             I asked repeatedly for the governor to say

       8      something about it in his press conference, just so

       9      people would know.  But, I don't think it worked.

      10             So another question was about your access to

      11      information.

      12             So we heard about problems with

      13      infection-control plans at different facilities.

      14             I know you're working with the residents and

      15      their families.

      16             But are -- do you have access to that kind of

      17      information, like, facility-wide information, about

      18      something, like, do they have a plan in place, and

      19      are they following it?

      20             JUDY FARRELL:  Well, that's why, in my

      21      recommendations, I ask that that be considered; a

      22      recommendation that there be an

      23      emergency-preparedness plan in place.

      24             What I heard from families of residents was

      25      that they could not get access to that.  They didn't









































                                                                   271
       1      know what the facilities' plans were, and they

       2      wanted to know.

       3             And, also, representatives of residents can

       4      be on the local emergency-preparedness teams, or

       5      have some contact with them, because getting that

       6      information is critical to family decisions.

       7             I mean, unfortunately, some families would

       8      have taken a loved one out, and the loved one passed

       9      away from COVID-19, because they didn't have

      10      information quickly enough.

      11             [Indiscernible cross-talking] --

      12             SENATOR MAY:  But I was more asking to -- as

      13      an ombudsperson, do you have access, even --

      14             JUDY FARRELL:  No --

      15             SENATOR MAY:  -- [indiscernible

      16      cross-talking] --

      17             JUDY FARRELL:  -- no, no.

      18             I have what the department of health has

      19      shared, that information.

      20             The information that I received on infections

      21      in facilities, I received from resident families who

      22      were more in touch with people inside, with staff

      23      and with others.

      24             So I sometimes got information even before

      25      the department of health, maybe, when people called.









































                                                                   272
       1      But it was -- it was -- they were guesstimates, they

       2      didn't have exact numbers.  But we knew what

       3      facilities had quite a few infections.

       4             SENATOR MAY:  Right.

       5             And this is a big question, and I know that

       6      you're new, but, do you think the ombuds program

       7      should be independent of the State, of the

       8      executive?

       9             Is that something you can comment on?

      10             JUDY FARRELL:  Well, it is supposed -- it is

      11      a federal -- it's a federal-state partnership.  And

      12      it is an independent program.

      13             Although [indiscernible cross-talking] --

      14             SENATOR MAY:  I know, but they try to say,

      15      "an office for the aging."

      16             JUDY FARRELL:  -- it does sit within that

      17      office, but we are supposed to be operating

      18      independently.

      19             SENATOR MAY:  Do you feel that you do?

      20             JUDY FARRELL:  I'm too new, I think, to

      21      really make a [inaudible].

      22             SENATOR MAY:  Probably.

      23             So, okay, one more question, because you

      24      talked about the virtual visits kind of working in

      25      this period.









































                                                                   273
       1             Do -- and I've heard a lot about, volunteers,

       2      that's it's hard to recruit new volunteers, and,

       3      often, "I'm upstate."  You know, they have to travel

       4      long distances to get to facilities, and they're

       5      volunteers, so it takes a lot of time.

       6             Do you see virtual visits as something that

       7      will be continued to be used in the future, beyond

       8      the pandemic, and could be effective?  Or should the

       9      visits be in person?

      10             JUDY FARRELL:  I think virtual visits are

      11      important to, you know, maintain as a tool.  But

      12      I think there's nothing that replaces in-person

      13      visits or human connections.

      14             I think we can use technology as a tool.

      15             And, certainly, if we can get in to do a

      16      FaceTime with a resident and with their family, it's

      17      helpful.

      18             And, certainly, it was helpful during the

      19      pandemic.  And should be a part of planning.

      20             But I think, you know, if we can get and

      21      recruit volunteers and have more staff to get into

      22      the facilities, that's really important.

      23             Because, the residents in the facilities --

      24      I haven't, you know, been with the program too

      25      long -- but I know from our volunteers and other









































                                                                   274
       1      ombudsmen, that the residents trust the ombudsmen,

       2      and will share things that they might not share with

       3      others.

       4             So I think [indiscernible cross-talking] --

       5             SENATOR RIVERA:  Thank you, Ms. Farrell.

       6             JUDY FARRELL:  Yep.

       7             SENATOR MAY:  Thank you.

       8             SENATOR RIVERA:  Thank you, Senator.

       9             Assembly.

      10             ASSEMBLYMEMBER BRONSON:  Thank you, Senator.

      11             I will go next.

      12             And my first question is for you,

      13      Ms. Farrell, and it's following up on the

      14      ombudsperson program.

      15             We really need to change the name of that, by

      16      the way, so that it's gender-neutral at best.

      17             But that being said, so this is a federal and

      18      a state program.  Correct?

      19             And if I understood your response to

      20      Senator Skoufis, the bar for ombudspersons from

      21      going into facilities, that was federally required

      22      in the beginning?  Is that true?

      23             JUDY FARRELL:  Yes.

      24             ASSEMBLYMEMBER BRONSON:  Okay.

      25             And that requirement no longer exists.









































                                                                   275
       1             So are ombudspersons going in facilities

       2      today?

       3             JUDY FARRELL:  They are not yet going in.

       4             I think the department has given -- approved

       5      to -- and giving guidance to allow Ombudsmen to go

       6      in.

       7             There are issues around testing and PPE, and

       8      other issues, that, really, I can't -- you know, I'm

       9      not, you know, at liberty to address what stage

      10      they're at.  But I know there's guidance being

      11      developed, actually, implement visits, going

      12      forward.

      13             But that's not happening yet.

      14             ASSEMBLYMEMBER BRONSON:  Okay.

      15             So, if you know, the -- so we currently have

      16      a visitation guideline:  28 days of no test

      17      positives and you're allowed visitations.

      18             Is -- would not the ombudsperson fit under

      19      that guideline?

      20             JUDY FARRELL:  Yes.

      21             ASSEMBLYMEMBER BRONSON:  Okay.

      22             So -- but as far as you know -- for instance,

      23      I just had a facility right up the street up from my

      24      home who had met that requirement.  And,

      25      unfortunately, now they've had two staff people test









































                                                                   276
       1      positive.  So now they're starting the 28 days all

       2      over again.

       3             Are there -- are you not aware of any

       4      facility that has met that requirement where an

       5      ombudsperson has gone in already?

       6             JUDY FARRELL:  No, I mean, there are

       7      requirements, as you know, for the staff to be

       8      tested.  But there are also requirements.

       9             And this is really an office of the state and

      10      long-term-care ombudsman question.

      11             Richard, if you want to address it.

      12             But there are requirements for tests every

      13      week for the ombudsmen.  And how that's going to be

      14      implemented is not clear yet.

      15             ASSEMBLYMEMBER BRONSON:  All right, so, just

      16      so I understand it correctly:  As far as you're

      17      aware, ombudspersons are not going into facilities

      18      as of this day?

      19             JUDY FARRELL:  Not in my region, no.

      20             ASSEMBLYMEMBER BRONSON:  All right.

      21             And, Richard, I lost you on the screen -- oh,

      22      there you are.

      23             Richard, do you -- are you aware of

      24      ombudspersons going into facilities in any

      25      locations?









































                                                                   277
       1             RICHARD MOLLOT:  Not in New York State.

       2             ASSEMBLYMEMBER BRONSON:  Okay.

       3             RICHARD MOLLOT:  But just to clarify, there's

       4      a -- very quickly, there's a difference between

       5      allowing -- a plan for allowing facilities to have

       6      visitors, and a plan to allow ombudsmen in.

       7             So there's a distinction there.

       8             So what DOH did, was a plan to allow visitors

       9      and open it up.  And they did mention the ombudsmen.

      10             But then that really has to come from the

      11      long-term-care ombudsman program, as Judy was

      12      saying, the state office of the ombudsman program.

      13             ASSEMBLYMEMBER BRONSON:  And do we know where

      14      those discussions are on developing that plan?

      15             RICHARD MOLLOT:  As Judy said, I believe that

      16      they're being developed.  But that would really be a

      17      question for the state ombudsman.

      18             ASSEMBLYMEMBER BRONSON:  Okay.  All right.

      19             Are either of you aware, has the office for

      20      the aging reached out to you in connection with this

      21      program?

      22             I mean, they're the agency in charge of

      23      oversight of this program.

      24             Have they reached out, have they had

      25      conversations with either of you?









































                                                                   278
       1             Or are you aware of conversations or

       2      communications, of any nature, from that agency,

       3      about this program, and how to fit it into the

       4      current COVID-19 in a safe and healthy way?

       5             RICHARD MOLLOT:  As -- if I just may -- if

       6      I may answer to that, as Judy said, the

       7      long-term-care ombudsman program is housed within

       8      the state office for the aging, but it's required

       9      under federal rules to be run as an independent

      10      program.

      11             So it's -- the long-term-care ombudsman, her

      12      name is Claudette Royal, would be the beginning and

      13      the end of responsibility for how the ombudsman

      14      program is run, again, under the federal rules.

      15             We get a significant amount of federal money

      16      to have an ombudsman program.

      17             ASSEMBLYMEMBER BRONSON:  I understand that,

      18      but the office for the aging is still responsible

      19      for the program, is that not true?

      20             RICHARD MOLLOT:  The office for the aging

      21      houses the program, but the office for the aging is

      22      not -- does not have substantive control over the

      23      program.

      24             ASSEMBLYMEMBER BRONSON:  Another reason we

      25      should move it to the department of health,









































                                                                   279
       1      I suppose.

       2             RICHARD MOLLOT:  Hmm, I would not agree with

       3      that.

       4             JUDY FARRELL:  Hmm.

       5             ASSEMBLYMEMBER BRONSON:  No?

       6             RICHARD MOLLOT:  No.

       7             ASSEMBLYMEMBER BRONSON:  Okay.

       8             All right.  So the -- well, probably, there

       9      would be conflicts there.

      10             I understand.

      11             JUDY FARRELL:  It has to be independent.

      12             ASSEMBLYMEMBER BRONSON:  Yeah, the idea of

      13      independence, I get it.  I misspoke.

      14             Thank you.

      15             All right.  I would love to learn more,

      16      Richard, about what you were talking about, the

      17      difference between profit and not-for-profit, and

      18      the responses, and what's happening from a profit

      19      motivation.

      20             But my time is up, so I will yield.

      21             SENATOR RIVERA:  Unfortunately, you will have

      22      to -- that, you could always -- you could always

      23      submit it in writing, for Mr. Mollot to respond in

      24      the future.

      25             Passing to the Senate, recognize









































                                                                   280
       1      Senator Metzger for 3 minutes.

       2             SENATOR METZGER:  Thank you, thank you so

       3      much.

       4             Okay, first I just -- I have a question for

       5      Richard.

       6             Sorry, I'm trying to get my video on.

       7             Richard, you had mentioned that those --

       8      those for-profit nursing homes, outcomes for

       9      residents faired worse than for those that were not

      10      for-profit or state-owned.  Is that correct?

      11             RICHARD MOLLOT:  Uh-huh.

      12             SENATOR METZGER:  Do you -- so one -- two

      13      questions.

      14             One is, do you have a study?  Like, is this

      15      data available for -- that can be shared?

      16             That's one question.

      17             And, secondly, what do you contribute, or

      18      what are the main factors?

      19             Is it staffing?  Is it understaffing?

      20             Like, what are the main factors involved?

      21             I'm very concerned because there is,

      22      actually, in my district, the County is considering

      23      selling its nursing home right now, which I have

      24      really major concerns about.

      25             And this data is important.









































                                                                   281
       1             RICHARD MOLLOT:  Thank you.

       2             Well, and those are really great questions.

       3             So we're embarking on a larger study to

       4      assess the data.

       5             As people before us mentioned, there's

       6      federal data that's coming out.  And, of course, the

       7      state data, which only provides data on deaths.

       8             There is now more robust federal reporting.

       9             In any case, so we -- in anticipation of the

      10      hearing, we did some quick analyses.  And those are

      11      the results of those analyses, and I can, of course,

      12      share those data.

      13             There are not a lot of the county-based

      14      nursing homes.

      15             But as I recall, when I looked, and I haven't

      16      looked at them the past four hours or so, but as

      17      I recall, the county-based nursing homes actually

      18      did even better than the

      19      not-for-profits/county-based, overall.

      20             But there was a clear delineation, and that

      21      is probably true to the fact that the not-for-profit

      22      and county nursing homes tend to put more money into

      23      resident care and tend to have higher staffing

      24      levels.

      25             So there are good nursing homes on both ends.









































                                                                   282
       1             SENATOR METZGER:  County -- the county

       2      nursing homes.

       3             RICHARD MOLLOT:  Pardon?

       4             County nursing homes and not-for-profits both

       5      put more money into resident care and into staffing,

       6      which, as someone mentioned earlier, was about

       7      80 percent of the resident-care costs anyway.

       8             SENATOR METZGER:  Okay.  Thanks.

       9             And do I have time to ask a question of Judy,

      10      Mr. Chair?

      11             SENATOR RIVERA:  If you keep asking until the

      12      time runs out.

      13             SENATOR METZGER:  All right, all right.

      14             Judy, I just -- is there -- I'm very

      15      concerned about the lack of visitation.  This has

      16      come up as a theme constantly.

      17             Even for -- within the current guidance,

      18      I mean, I just don't understand the ban on outdoor

      19      visitation.  It seems like, that, that would be

      20      safer.

      21             And -- I mean, what do you think about that?

      22             SENATOR RIVERA:  You have about 50 seconds,

      23      please.

      24             JUDY FARRELL:  Some facilities are doing that

      25      already.









































                                                                   283
       1             But I do think you're right, this issue of

       2      visitation has to be solved with -- to get our best

       3      minds together, because it is impacting the mental

       4      health of residents and their families.

       5             SENATOR METZGER:  Okay.  All right.

       6             SENATOR RIVERA:  Thank you so much, Judy.

       7             Thank you Senator.

       8             Assembly.

       9             ASSEMBLYMEMBER BRONSON:  Yes, next

      10      I recognize Co-Chair Assemblymember McDonald for

      11      5 minutes.

      12             ASSEMBLYMAN McDONALD:  Thank you, Harry.

      13             And, Judy and Richard, thank you for being

      14      here.

      15             Judy, Harry already asked my questions, so

      16      you're good, you're off the hook, I guess.

      17             Richard, you may have heard my question

      18      earlier with Dr. Zucker.

      19             And I understand you've got your ear to the

      20      ground.

      21             Psychotropic use with our residents in the

      22      long-term-care facilities, what are you hearing?

      23             I'm hearing through the pharmacy community

      24      that it's up significantly.

      25             And I'm just curious what your reflections









































                                                                   284
       1      are.

       2             RICHARD MOLLOT:  Thanks.

       3             And this is one of our biggest advocacy

       4      issues, is the inappropriate overuse of

       5      antipsychotics and other psychotropic medications.

       6             And that is what we are hearing.

       7             So the data we have for this time period

       8      right now, it's all anecdotal.

       9             I just want to be very careful, because we do

      10      policy research on this, using federal NBS data.

      11             So we don't have great data, but the reports

      12      I'm hearing, over and over again, is of residents

      13      being drugged, residents appearing drugged,

      14      residents being told that they need these drugs,

      15      essentially, rather than, you know, receiving

      16      appropriate care.

      17             And I just want to quickly mention that

      18      the -- a lot of the rules have been relaxed for

      19      nursing homes over this time period.

      20             But the right to be free from unnecessary

      21      drugs, the right to be free from chemical

      22      restraints, and the right to be treated with dignity

      23      have not been relaxed.

      24             So nursing homes still have the

      25      responsibility do that.









































                                                                   285
       1             I know we're not going to get everyone

       2      together for a game of Bingo, or whatever, but

       3      there's other things that they can done be doing,

       4      which, too often, is not going on.

       5             ASSEMBLYMAN McDONALD:  I've gotten a variety

       6      of e-mails from not only constituents here in the

       7      Capital Region, but throughout the state.

       8             And the impression I'm getting, which is --

       9      which is -- I can understand people are feeling

      10      isolated, is that they're barely able to leave their

      11      room.

      12             Is that true?

      13             RICHARD MOLLOT:  Yes.  And it doesn't have to

      14      be that way.

      15             Again, you know, nursing homes were never an

      16      appropriate setting to let steam off of the hospital

      17      situation.  They just weren't.

      18             And that's why we brought in the ship, that's

      19      why we set up hospitals, that's why we still have

      20      units around the state.

      21             It's one of the most infuriating and

      22      appalling things to me, in the 18 years --

      23      18-plus years I've been at the coalition, is to see

      24      residents, essentially, imprisoned in their

      25      facilities for month after month after month after









































                                                                   286
       1      month.

       2             Nursing homes are not a MASH unit in a war

       3      zone.

       4             This is just completely inappropriate.

       5             As everyone has said throughout the day, it

       6      is physically, clinically, harmful for people to be

       7      out of touch, to be isolated, and to be neglected in

       8      this way.

       9             ASSEMBLYMAN McDONALD:  Thank you both.

      10             RICHARD MOLLOT:  Thank you for raising that.

      11             SENATOR RIVERA:  Thank you, Assemblymember.

      12             Now moving on to recognizing Senator Serino

      13      for 5 minutes.

      14             SENATOR SERINO:  Sorry about that.  Just took

      15      me a second to get there.

      16             Thank you both so much for being here, and

      17      for all of the hard work that you do.

      18             You know, at the start of the pandemic

      19      I immediately heard from my local ombudsman, who was

      20      working overtime to help keep families connected to

      21      their loved ones.

      22             And we're great grateful for all of your

      23      services.

      24             She brought to my attention that many of our

      25      state's volunteers are seniors themselves, which you









































                                                                   287
       1      guys had spoken about, and would not have been able

       2      to safely enter these facilities even if they were

       3      allowed to.

       4             So we immediately saw a dangerous gap that

       5      needed to be filled, and we can all agree upon that.

       6      So, we came up with a proposal.

       7             I introduced legislation, to create an

       8      emergency public health transparency and

       9      accountability council.

      10             That council would be charged with creating a

      11      direct 24/7 hotline, collecting and investigating

      12      reports of problems or COVID-19 guidelines not being

      13      followed in any facilities.

      14             The idea, was that those who were allowed in

      15      could continue to be the confidential eyes and ears

      16      in these facilities.

      17             The bill expressly required the

      18      long-term-care ombudsman to be a member of that

      19      commission so their experience could be leveraged to

      20      best protect these residents.

      21             That proposal, like so many others, was

      22      completely ignored.

      23             We also know that the State has failed to

      24      provide enough resources to bolster the ombudsman

      25      program.









































                                                                   288
       1             And I also carry legislation to incentivize

       2      more there as well.

       3             But I'm wondering, what do you think we can

       4      do, going forward, to ensure that there is a patient

       5      advocate on the ground advocating for patients and

       6      their loved ones?

       7             It's for either one of you to answer.

       8             RICHARD MOLLOT:  Judy, do you want to...

       9             JUDY FARRELL:  Sure.

      10             I do think that the advocates and the

      11      resident representatives have to be part of any

      12      local emergency-preparedness planning.

      13             I think, after 9/11, we learned that, you

      14      know, being prepared, I mean, you never know.

      15             The pandemic, we didn't expect it to be as

      16      horrifying as it is.

      17             But I think if we're communicating with the

      18      emergency services and all the first responders and

      19      everyone that's going in to assist facilities, that

      20      we can communicate to the residents what's going on

      21      in their community.

      22             I think that's -- and to their families,

      23      their loved ones, because they really want to know.

      24      They see things on the news, and they panic, and

      25      they're living in fear.









































                                                                   289
       1             But we can reassure them or we could share

       2      information, and that's really comforting.

       3             RICHARD MOLLOT:  And I would just quickly

       4      add --

       5             And, Senator Serino, you've been a strong

       6      supporter of this for many years, I know personally.

       7             -- that we clearly need to be adding funding

       8      and support for the long-term-care ombudsman

       9      program.

      10             I thank you and Senator May for, you know,

      11      that support.  And, of course, others who are here

      12      as well.

      13             But it is so clear; we've been calling -- you

      14      know, calling for this for several years.

      15             I did research on funding, six, seven years

      16      ago now, that found that New York is one of the

      17      states that least funds the -- their long-term-care

      18      ombudsman program.

      19             New York State Comptroller's Office did a

      20      similar study about two years ago, which found,

      21      roughly, the same thing.

      22             And this shows we really need to have

      23      professional staff because, as you mentioned, a lot

      24      of volunteers are seniors themselves.  And it may be

      25      a long time before it's safe for them to be going









































                                                                   290
       1      into facilities.

       2             We need to have the professional staff there

       3      to answer questions and advocate.

       4             SENATOR SERINO:  Thank you, Richard.

       5             And I -- actually, also, I introduced

       6      legislation that would provide grant funding to

       7      these facilities, to hire staff solely dedicated to

       8      answering calls and answering questions from loved

       9      ones and ombudsmen, so that there was no logjam, and

      10      there was no staff being pulled away -- right? --

      11      because that happens -- from taking care of the

      12      patients.

      13             That proposal, to date, has been completely

      14      ignored as well.

      15             But thank you so much for your time today.

      16             RICHARD MOLLOT:  Thank you.

      17             SENATOR SERINO:  Thank you.

      18             JUDY FARRELL:  Thank you.

      19             SENATOR RIVERA:  Thank you, Senator.

      20             Assembly.

      21             ASSEMBLYMEMBER BRONSON:  Yes, I recognize

      22      Assemblymember Jake Ashby for 5 minutes.

      23             ASSEMBLYMEMBER ASHBY:  Thank you,

      24      Mr. Chairman.

      25             Quick question for Richard.









































                                                                   291
       1             Earlier, when were you talking with

       2      Assemblymember McDonald, you were talking about

       3      how inactive some of the population in our nursing

       4      homes have become.

       5             And I'm wondering, have you seen this on kind

       6      of a larger scale in terms of their functional

       7      ability?  And how has it impacted -- or, has it

       8      impacted their ability to be discharged?

       9             Some of the patients aren't necessarily there

      10      for long-term care.  They're there for short-term

      11      rehab, or they get to the point where they can go

      12      home, or should be able to -- or, leave the

      13      facility, maybe not go home, but go somewhere else,

      14      to an alternative level of care.

      15             Do you feel like their functional ability has

      16      been impacted to where that's not happening?

      17             RICHARD MOLLOT:  Yes.

      18             And, again, I want to be careful because

      19      everything I hear is either -- it's anecdotal; it's

      20      from hearing from ombudsmen and hearing from family

      21      members, et cetera, over the last five months.

      22             So we don't have good data on this, which we

      23      are constantly calling for, and urge you all to call

      24      for as well, you know, for good data on what's going

      25      on in nursing homes, as you did earlier with the









































                                                                   292
       1      commissioner.

       2             But I think that -- that's the kind of thing

       3      we hear.

       4             People that went into a facility for rehab

       5      services, and they are confined to their bed, put in

       6      a double diaper.

       7             And so not only are they not getting the

       8      therapy services that they need and went in for, but

       9      they're losing their ability to be continent.

      10             I mean, the nursing -- the nurses -- nursing

      11      homes, excuse me, refusing to even take them to go

      12      to the bathroom to maintain continence.

      13             Those -- and, of course, a lot of residents

      14      who we're seeing with malnourishment and

      15      dehydration.  As I mentioned before, a lot of

      16      reports of widespread drugging of residents.

      17             And so all those things lead to a

      18      deterioration, and a lack of ability to get out of

      19      the nursing home.

      20             ASSEMBLYMEMBER ASHBY:  Yeah, I would be very

      21      curious to know, in terms of the patients or

      22      residents that went in for short-term rehab, and

      23      were expected to go home, and had a discharge plan

      24      in place, and then sedentary -- be secondary to the

      25      sedentary lifestyle, of now not being able to leave









































                                                                   293
       1      your room.  Right?

       2             Or if you are receiving rehab, are you able

       3      to go to the -- you know, to the gym -- the rehab

       4      gym in the facility, or are you confined to your

       5      room for rehab services?

       6             And the impact of quality of services that

       7      are -- that's happening there.

       8             And then, you know, on top of that, what

       9      counts as a safe discharge at this point?

      10             Can you do a home eval from a nursing home?

      11             Or is everybody, because of the restrictions,

      12      were not able to get therapists, are not able to get

      13      into these people's homes and make sure that it's a

      14      safe discharge environment?

      15             I mean, there's -- there could be a lot --

      16      there could be a lot going on here that's

      17      compounding problems for not only nursing homes,

      18      but, you know, for the families and residents as

      19      well.

      20             RICHARD MOLLOT:  Absolutely.

      21             Thank you.

      22             ASSEMBLYMEMBER ASHBY:  Thank you.

      23             SENATOR RIVERA:  All righty.  Thank you,

      24      Assemblymember.

      25             Now recognizing Senator Tom O'Mara for









































                                                                   294
       1      5 minutes.

       2             SENATOR O'MARA:  Thank you, [indiscernible].

       3             And thank you both for your testimony today,

       4      and much thanks for what you do as ombudsmen and

       5      helping those programs operate on such limited

       6      budgets.

       7             I know in my region of the state that

       8      I represent, our ombudsman's program covers

       9      five counties.

      10             I think they have one paid staff person.

      11      They rely on volunteers for the rest of it.  It's

      12      just woeful.

      13             So it's very inadequate coverage

      14      [indiscernible] providing ombudsmen.  And, you know,

      15      when you can get a volunteer, it's likely related to

      16      somebody that is willing to do some extra work while

      17      they're visiting a facility where their own loved

      18      one is.  And perhaps after that loved one is no

      19      longer, passes away in the nursing home, is no

      20      longer a resident, they kind of lose interest and

      21      fall off the volunteer list for continuing those

      22      efforts.

      23             So I agree we need a lot more effort put into

      24      bolstering these programs to help with that.

      25             What is your sense, if you have one, in the









































                                                                   295
       1      areas that you represent, on -- you know, we've

       2      talked about, there's a 20 percent vacancy rate, or

       3      down in occupancy, [indiscernible] of our nursing

       4      homes.  Probably a little less than half of that

       5      number are actual deaths that occurred in nursing

       6      homes.

       7             But what is your sense of the breakdown of

       8      the other vacancies in the nursing homes that have

       9      been resulted?

      10             I assume there are some that were taken

      11      out -- some residents taken out, back to their homes

      12      where that was feasible.  But there was those that

      13      were transferred to hospitals with COVID, that died

      14      there of COVID, and they're not in our counts, as

      15      well as, probably, those deaths that occurred, and

      16      there just is a lack of sending a loved one to the

      17      nursing home right now because of the conditions

      18      under COVID, and people are dealing with that more

      19      at home, hopefully.

      20             But what's your sense on the breakdown of

      21      that extra -- that extra -- those extra vacancies,

      22      as far as what you would consider were deaths that

      23      occurred in hospitals, or individuals that were

      24      checked out of the nursing facility?

      25             RICHARD MOLLOT:  I don't -- I don't -- this









































                                                                   296
       1      is Richard.

       2             I don't think there's really any good way

       3      to -- I mean, the department may have data, as was

       4      discussed, you know, with the commissioner earlier.

       5      But that would be the only way, I think, to speak

       6      about those issues.

       7             They're important, but I -- you know, I think

       8      we should be careful, and really expect the

       9      department to come out with that information to the

      10      best of its ability.

      11             We're still not getting a lot of information.

      12      We still don't know the cases among staff.  We still

      13      don't know suspected cases.

      14             As many have discussed, we still don't know

      15      who was sent to a -- you know, by ambulance to a

      16      hospital and died there, when, really, they were

      17      sick and, you know, whatever, they were led to

      18      death's door by the nursing home, and then they went

      19      on to the hospital and died there.

      20             SENATOR O'MARA:  Well, thank you for that.

      21             I'm not trying to --

      22             RICHARD MOLLOT:  [Indiscernible

      23      cross-talking] --

      24             SENATOR O'MARA:  -- I'm trying not to put you

      25      on the spot, but, I was hoping you might have









































                                                                   297
       1      something anecdotally on that, because of the lack

       2      of the commissioner of health [inaudible] being

       3      forthcoming in that information, despite having

       4      two weeks to prepare for this hearing, and coming in

       5      with no numbers as far as deaths and hospitals.

       6             But let me ask you one thing:  What do you

       7      see in the facilities, their ability to help with

       8      the residents make that electronic or computerized

       9      contact with loved ones, since nobody can visit?

      10             Are you finding enough assistance, what

      11      you're hearing, in the homes, and allowing -- or,

      12      helping an individual get set up to do a Zoom

      13      teleconference, of sorts, with a family members?

      14             RICHARD MOLLOT:  It really varies across the

      15      state.

      16             So some nursing homes are really doing a good

      17      job.

      18             I heard of one nursing home that was

      19      actually, after the economy tanked in early April,

      20      they hired people who had worked in entertainment,

      21      and they -- to help residents, so that they could do

      22      that safely, and bring in staff that were not -- you

      23      know, not clinicians, but that could provide that

      24      kind of help.

      25             But we also hear, over and over again, of









































                                                                   298
       1      nursing home residents being told that they can't

       2      get help with even turning on an iPhone.  That the

       3      staff just utterly refuses, doesn't have time,

       4      whatever.

       5             That they -- of phones and things being lost.

       6             It is the nursing home's responsibility to

       7      make sure that those things don't happen.  They're

       8      the ones who control the situation.

       9             And then in respect to the money going out,

      10      that's actually something we and other resident

      11      advocates had advocated for.

      12             That's federal money that the commissioner

      13      had mentioned.

      14             It's a federal -- federal civil money penalty

      15      funds that every state has, is getting, to give out

      16      to nursing homes.

      17             So we're looking forward to that

      18      [indiscernible cross-talking] --

      19             SENATOR O'MARA:  Very quickly, and my time is

      20      just about up, but, do you have any thoughts on

      21      allowing a resident or family members to place a

      22      surveillance camera in the resident's room, with the

      23      consent of the patient, obviously?

      24             Since there is no access from either

      25      ombudsmen or [inaudible] --









































                                                                   299
       1             SENATOR RIVERA:  If you can answer that

       2      question quickly?

       3             RICHARD MOLLOT:  Sure.

       4             So we've -- we support that, very carefully

       5      and respectfully, for the resident; so, there's

       6      certain ways in which it has to be done.

       7             And then, just very quickly, there are

       8      actually other equipment that we know of that

       9      allows, and, actually, I know someone who's using it

      10      in New York, who allows you to communicate, the

      11      resident to communicate, in a very easy way, you

      12      know, a two-way with their family members.

      13             SENATOR RIVERA:  Thank you very much,

      14      Mr. Mollot.

      15             SENATOR O'MARA:  Thank you very much.

      16             SENATOR RIVERA:  Thank you, Senator.

      17             Assembly.

      18             ASSEMBLYMEMBER BRONSON:  Thank you, Senator.

      19             I next recognize Assemblymember Tom Abinanti

      20      for 3 minutes.

      21             ASSEMBLYMEMBER ABINANTI:  Oh, I'm sorry.

      22      Well, okay.

      23             ASSEMBLYMEMBER BRONSON:  You ready, Tom?

      24             ASSEMBLYMEMBER ABINANTI:  I think I'm next.

      25             Hold on.









































                                                                   300
       1             Yep, I'm here.

       2             Talk to you soon.  Thank you.

       3             Yes, hi, there.

       4             Thank you very much.

       5             I just want to emphasize one thing:  Did you

       6      say that visitors are delayed from entering

       7      long-term-care facilities because of an increase in

       8      COVID among staff?

       9             Am I hearing that correctly?

      10             RICHARD MOLLOT:  I didn't say that.

      11             But with the -- what the guidelines are,

      12      first of all, there are federal guidelines.  And

      13      then within those federal guidelines, the states can

      14      have a set of guidelines.

      15             And what the department did was, they set up

      16      very, very conservative guidance within what the

      17      feds allowed.

      18             So, essentially, because I think, you know,

      19      people are very, and you're, of course, very,

      20      interested in this, is that the whole 28 days,

      21      et cetera, et cetera, that was for internal visits

      22      under the federal rules.

      23             What the State has done, and we urged them

      24      not to do this, was to open it up more.  But they

      25      did this for external and internal visits.









































                                                                   301
       1             So [indiscernible] facilities

       2      [indiscernible cross-talking] --

       3             ASSEMBLYMEMBER ABINANTI:  So the visitors,

       4      including you guys, visitors, including you guys,

       5      are being penalized because the staff might be out

       6      partying, or coming across people who -- who -- who

       7      have, or from other jobs, or whatever, the staff is

       8      transmitting it to each other, or whatever.

       9             Everybody is excluded forever.

      10             Am I understanding this correctly?

      11             RICHARD MOLLOT:  Yeah -- well, I don't want

      12      to speak about whether the staff are out partying,

      13      or something.

      14             But I think that, you know, as I said from

      15      the start, we said, before it got to such a

      16      disastrous proportion in New York State, that it

      17      could be done safely if staff could come in, as

      18      you're saying, that family members could come in

      19      also.

      20             Think about it:  A family member only wants

      21      to visit his or her loved one.

      22             Staff go in and out of different rooms, you

      23      know, they're providing care, et cetera.

      24             So now that it's -- you know, we've got it

      25      under control here, we think that it should be









































                                                                   302
       1      reopened safely.  But we actually put together a

       2      blueprint for doing that.

       3             I know [indiscernible cross-talking] --

       4             ASSEMBLYMEMBER ABINANTI:  You have?  Can you

       5      send that to us?

       6             RICHARD MOLLOT:  I can.

       7             ASSEMBLYMEMBER ABINANTI:  Can you make sure

       8      that's distributed to all of us?

       9             RICHARD MOLLOT:  Yes, yeah.

      10             ASSEMBLYMEMBER ABINANTI:  Thank you.

      11             Secondly, what's the definition of "long-term

      12      care" that you guys represent?

      13             Do you include only the health-care

      14      facilities?

      15             Or do you also include things like places for

      16      people with disabilities, behave -- you know,

      17      developmental disabilities, et cetera?

      18             RICHARD MOLLOT:  No.

      19             So we principally -- originally, we were the

      20      Nursing Home Community Coalition of New York State.

      21             And now we do both national work.

      22             And since more people are getting care in

      23      assisted-living, adult-care facilities, we have,

      24      over the last, you know, 18 or so years, added that

      25      under our umbrella.









































                                                                   303
       1             But my focus and my expertise [indiscernible

       2      cross-talking] --

       3             ASSEMBLYMEMBER ABINANTI:  Are the same rules

       4      applied to all of those facilities that are being

       5      applied to nursing homes?

       6             RICHARD MOLLOT:  Say that again, I'm sorry?

       7             ASSEMBLYMEMBER ABINANTI:  Are the same

       8      prohibition on visitors being applied to all of

       9      those facilities?

      10             We've been, basically, talking about nursing

      11      homes, by and large.

      12             But are the same -- are visitors being

      13      prohibited all over those other places

      14      [indiscernible cross-talking] --

      15             RICHARD MOLLOT:  Yeah, I believe so.

      16             But -- yeah -- just, very quickly, the

      17      federal rules only go to nursing homes.

      18             Everything that happens in adult-care

      19      facilities is up to you guys and the governor

      20      because there are no federal rules for adult-care

      21      facilities.  It's only state rules.

      22             So DOH has, whatever it wants to do, it can

      23      do in the health-care world.

      24             SENATOR RIVERA:  Thank you, Mr. Mollot.

      25             Thank you.









































                                                                   304
       1             Assemblymember.

       2             ASSEMBLYMEMBER BRONSON:  Uh, yes.  We have

       3      one last questioner.

       4             Assemblymember Missy Miller, you have

       5      3 minutes.

       6             ASSEMBLYMEMBER MILLER:  Yes, hi.

       7             I just -- I would like to start by thanking

       8      you both for being here, and thank you for what you

       9      do for this population.

      10             I have two questions, very brief:

      11             One:  You spoke about, you know, the impact

      12      that -- or, the -- you know, the fact that it's

      13      having on the residents in the homes.  You know,

      14      isolation.  They haven't seen their family members.

      15      They're not getting out and around.

      16             But there's also a population of children in

      17      children's facilities, long-term skilled-care

      18      facilities, who haven't been able to see their

      19      parents in months, which, you know, is unbelievably

      20      critical to somebody's, you know, rehabilitation,

      21      especially children.

      22             Have you heard much about that from -- from

      23      families about that population?

      24             RICHARD MOLLOT:  Yes.  Yes, we have.

      25             And just the concerns that you're raising,









































                                                                   305
       1      frankly, about those children who are at an enormous

       2      risk and very vulnerable, and who, you know, count

       3      on their family members, obviously, to visit them,

       4      to provide -- just as with, you know, adults and the

       5      elderly, to provide, often, you know, care and

       6      monitoring.

       7             ASSEMBLYMEMBER MILLER:  Right.

       8             And I know, I've heard from one in

       9      particular, that one of these facilities, a hospital

      10      for children, who's had absolutely zero patients

      11      test positive.

      12             None.

      13             It's all just staff, and it's the 28-day

      14      limit that's, you know, stopping anybody from moving

      15      forward.

      16             As far as the ombudsmen, I, as a parent of a

      17      medically-fragile child who spends lots of time in

      18      and out of hospitals, I am always a big advocate.

      19             And I tell people, when I get -- I find that

      20      I get a lot of calls in my Assembly office, that

      21      I believe would have been helped by an ombudsman.

      22             But families still just don't know about

      23      them.

      24             So I think we have to do a better job of

      25      getting that word out.  It somehow is missing.









































                                                                   306
       1             And then my last question is just

       2      philosophical.

       3             You know, we all know we're advocating; we're

       4      fighting for the people who have the quietest voices

       5      here.

       6             Do you guys feel that you are getting heard

       7      by department of health, by the governor's office,

       8      by anybody that's making decisions?

       9             RICHARD MOLLOT:  No, to be perfectly blunt.

      10             You know, I was kind of disturbed to hear

      11      early this morning that the provider industry, not

      12      only individual nursing homes, but the lobby

      13      associations, the lobbyists for the nursing homes,

      14      meet with DOH regularly about these things.

      15             As I said, we have a blueprint.

      16             We have long represented residents in this

      17      state.  And I have never received a phone call or

      18      request for even information.

      19             I think we provide some, you know, valuable

      20      data, as well as insights.

      21             And, no, never.

      22             ASSEMBLYMEMBER MILLER:  Thank you.

      23             SENATOR RIVERA:  Thank you, Assemblymember.

      24             Thank you, Mr. Mollot.

      25             I believe that that is all the questioners









































                                                                   307
       1      that we have on both sides.

       2             You folks may go back to your normal days.

       3             Au revoir.

       4             And we are moving on to Panel 4.  That will

       5      be:

       6             Roxanne Tena-Nelson, who is the interim

       7      president of the Continuing Care Leadership Council;

       8             Lisa Newcomb, who's the executive director of

       9      the Empire State Association of Assisted Living;

      10             And, John Auerbach -- hope I'm pronouncing

      11      that correctly -- president and CEO of Trust for

      12      America's Health.

      13             ASSEMBLYMEMBER GOTTFRIED:  [Inaudible.]

      14             SENATOR RIVERA:  Monsieur Gottfried, we

      15      cannot hear you.

      16             ASSEMBLYMEMBER GOTTFRIED:  And [inaudible] if

      17      they're all here, then I will ask them each:  Do you

      18      swear or affirm that the testimony you are about to

      19      give is true?

      20             ROXANNE TENA-NELSON:  I do.

      21             LISA NEWCOMB:  I do.

      22             JOHN AUERBACH:  [Inaudible.]

      23             ASSEMBLYMEMBER GOTTFRIED:  Okay.  Fire away.

      24             ROXANNE TENA-NELSON:  So I guess, Lisa, I can

      25      start?









































                                                                   308
       1             LISA NEWCOMB:  [Inaudible.]

       2             I'm Roxanne Tena-Nelson, interim president of

       3      the Continuing Care Leadership Coalition, which

       4      represents, exclusively, the not-for-profit and

       5      public long-term-care providers in the New York

       6      metropolitan area, and beyond.

       7             Our members represent the full continuum of

       8      long-term care, including skilled nursing and

       9      post-acute care, and a variety of home- and

      10      community-based services.

      11             We definitely appreciate the opportunity to

      12      provide testimony to the Senate and Assembly

      13      committees today.

      14             I am here to offer three points.

      15             1.  Our mission-driven members save lives --

      16      thousands of lives, at least 3,200 -- helping

      17      74 percent of some the sickest patients with COVID

      18      recover.

      19             It took dedication that started long before

      20      COVID-19 came to New York, and that resulted from

      21      tirelessly answering the call of their missions

      22      every single day.

      23             2.  Our members are essential to preparing

      24      for what comes next.

      25             The virus disproportionately came after our









































                                                                   309
       1      patients and the people who care for them.  And we

       2      must be an essential part of any preparedness

       3      planning, with the ability to share many best

       4      practices from our experience this spring.

       5             3.  We need your support to continue our

       6      commitment to taking care of older and disabled

       7      people.

       8             We must protect the financial and the

       9      psychosocial well-being of the long-term-care

      10      community, to stabilize our health-care system, and

      11      remain ready for the coming weeks and months.

      12             First, how did we save lives?

      13             We had a baseline of high performance.

      14             Long before the global community began

      15      detecting this novel virus, CCLC members have been

      16      focused on quality improvement, with a very strong

      17      track record of high performance on federal and

      18      state quality measures, as seen in Attachment 1 of

      19      my written testimony, beginning on page 7.

      20             Another contribution of high performance is

      21      our members' investment in their workforce.

      22             In Attachment 2, we show an example of CCLC's

      23      disproportionate commitment to highly-qualified

      24      clinical staff.

      25             In this case, attending physicians raising









































                                                                   310
       1      the bar for New York, a commitment that carries

       2      forward for all the other staff categories listed in

       3      that attachment.

       4             Additionally, CCLC has been deeply committed

       5      to emergency preparedness and response in the

       6      region, serving as a long-term care lead for a wide

       7      range of preparedness education and exercises, which

       8      also contributed to the lives saved in what went

       9      right.

      10             Second:  Why are we essential to preparing

      11      for what comes next?

      12             We did not shy away from finding solutions to

      13      the biggest challenges.

      14             Three examples of best practices include:

      15             Focusing on clinical excellence and testing

      16      to quickly create safe environments focused on

      17      infection prevention and on well-trained, committed

      18      staff;

      19             Building capacities to create safe, distinct

      20      units for those needing medically-complex

      21      rehabilitation, including the provision of specialty

      22      care uniquely tied to COVID illness, such as

      23      ventilator support;

      24             Supporting creative solutions to engage staff

      25      in their communities, with car parades, family video









































                                                                   311
       1      conferences, robotic solutions to check vitals, or

       2      provide pet therapy, and virtual offerings of music,

       3      caregiver support, and religious services, to name a

       4      few.

       5             Finally, why do we need your support?

       6             Prior to the arrival of the virus, our

       7      members were already financially fragile.  And the

       8      crisis has exacerbated these financial pressures due

       9      to decreased occupancy and increased expenses.

      10             Attachment 3 demonstrates this with regard to

      11      occupancy rates, which we talked about a little bit

      12      in this hearing already.

      13             22 percentage point decrease, looking at

      14      $2 million for many members, up to 5.6 for one, from

      15      April through June.

      16             Additionally, members had a similar magnitude

      17      of millions of losses for the costs that we have

      18      been talking about on PPE and personnel, and such.

      19             And as the pandemic carries on, the losses

      20      just continue to mount.

      21             Although the federal government has allocated

      22      some provider relief, the funds that have come to

      23      long-term care have been highly insufficient,

      24      particularly for providers largely caring for

      25      Medicaid beneficiaries.









































                                                                   312
       1             Also, our members have had to navigate

       2      massive regulatory burdens, as seen in Attachment 4.

       3             Last, but not least, a significant cost that

       4      has yet to be quantified is the mental-health impact

       5      of our sector.

       6             We contend that we must meet these challenges

       7      head on in order to maintain a strong,

       8      compassionate, and high-performing long-term-care

       9      community.

      10             We respectfully recommend:

      11             Prioritizing older and disabled people for

      12      decisions on PPE, testing, vaccination strategies,

      13      and any related funding;

      14             To maintain strong provider and staff

      15      liability protections;

      16             And, to thank the long-term-care community

      17      for what they have done, and what they do every day,

      18      to care for our most vulnerable New Yorkers.

      19             Thank you.

      20             SENATOR RIVERA:  Perfect timing.

      21             Thank you so much.

      22             Either Lisa or -- Ms. Newcomb or

      23      Mr. Auerbach.

      24             LISA NEWCOMB:  Good afternoon.

      25             Thank you for the opportunity to testify on









































                                                                   313
       1      behalf of the over 300 adult-care facilities (ACFs)

       2      who are members of the Empire State Association of

       3      Assisted Living, and the more than 30,000 senior

       4      residents that they serve.

       5             Our members include both private-pay

       6      communities whose residents use their own funds to

       7      pay, and low-income communities in which our members

       8      rely nearly entirely on a fixed SSI subsidy which

       9      has largely been unchanged since 2007.

      10             It's not possible to read my entire testimony

      11      in the 5-minute limit.  I will summarize here, but

      12      I implore you to read the testimony in its entirety.

      13             First, and foremost, I just want to give a

      14      shout-out to ACF providers and their staff, the

      15      truly unsung heroes in the fight to protect our

      16      residents.

      17             They deserve acknowledgement, gratitude, and

      18      government support.

      19             There are not enough words to sufficiently

      20      thank them.

      21             The assisted-living model combines

      22      independence, choice, and privacy with personalized

      23      supportive care in a congregate residential setting.

      24             Assisted-living residents generally require

      25      some assistance with activities of daily living;









































                                                                   314
       1      usually do not require around-the-clock skilled

       2      nursing care.

       3             ACF residents are generally healthier, more

       4      independent, active, and mobile than those in

       5      nursing homes.  In normal times they move freely

       6      throughout the inner and outer communities.

       7             COVID-19 data, as reported by the department

       8      of health, reflects that the virus has had a

       9      substantially greater impact on the nursing home

      10      population.

      11             There are far fewer COVID cases and deaths in

      12      licensed adult-care facilities.

      13             The public data, through July 28th, is that

      14      there have been a total of 6,403 nursing home deaths

      15      and 175 ACF resident deaths.

      16             Unfortunately, as has frequently been the

      17      case, the unique features of the ACF population, and

      18      the reimbursement we receive, has not been fully

      19      appreciated and, in many cases, has been ignored.

      20             In virtually every instance, the

      21      assisted-living industry is treated identical to the

      22      nursing home industry.  This repeated linking of the

      23      two in written directives and general policy has

      24      caused confusion for everyone.

      25             It is important that State guidance be









































                                                                   315
       1      tailored specifically to ACFs, based on the unique

       2      needs of residents and the unique features of the

       3      ACF industry even if there are some parallels.

       4             I want to talk a little bit about funding.

       5             The lack thereof of funding support for ACFs

       6      must be rectified.

       7             ACFs have been largely left out of all state

       8      and federal funding available to nursing homes and

       9      other health-care providers during this crisis.

      10             Two-thirds of ACF providers have received no

      11      funding from government to help offset COVID, not

      12      even for staff technology support that -- that you

      13      were talking about.

      14             ACFs who serve our most

      15      financially-vulnerable seniors in -- on SSI operate

      16      on a limited budget that has remained at $41 a day

      17      for a decade.

      18             In that time, costs in every area of

      19      operation has skyrocketed, and now COVID costs

      20      threaten their very existence.

      21             This is unconscionable.

      22             Even providers and residents in private-pay

      23      settings can absorb only so much additional costs

      24      before they find themselves in heightened financial

      25      distress that could ultimately put some out of









































                                                                   316
       1      business.

       2             So we ask for your support in securing

       3      funding for all ACF providers.

       4             A little bit about testing.

       5             It's critically important, testing our

       6      employees.  But the average cost is $100 per test,

       7      and that equates to thousands of dollars per week

       8      for even a smaller ACF, and tens of thousands per

       9      week for larger ones.

      10             With increased national testing, there is

      11      increasing delay in receiving the results, seven to

      12      nine days sometimes, severely lessening the value of

      13      the information.

      14             To routinely incur such significant costs

      15      when it can be too late to effectively use the

      16      results is pointless and unsustainable.

      17             Due to the significantly lower incidents of

      18      cases and fatalities in ACFs, ESAAL will make

      19      recommendations to the administration, moving

      20      forward, about reducing the testing or frequency for

      21      ACFS, especially that have not had any recent

      22      employee cases.

      23             With re -- one other thing about testing:

      24      ACFs should only have to test and pay for their own

      25      employees; not those of vendors or other licensed









































                                                                   317
       1      providers who deliver services in their building.

       2             It is unfair to shift costs to the ACF who

       3      has received the least amount of funding.

       4             Distribution of PPE, our association

       5      struggle -- our members struggle to -- to -- to

       6      obtain the critically-needed PPE.

       7             I know I'm running out of time.

       8             ESAAL desperately appealed to government

       9      during that process.

      10             Once it did become available in

      11      New York City, ESAAL actually took the

      12      responsibility of securing pickup sites, and manning

      13      [indiscernible cross-talking] --

      14             SENATOR RIVERA:  Thank you very much,

      15      Ms. Newcomb.

      16             Your testimony is included; it will be

      17      included in the record in its entirety.

      18             LISA NEWCOMB:  Thank you.

      19             SENATOR RIVERA:  Thank you so much.

      20             Mr. Auerbach.

      21             You are on mute, sir.

      22             JOHN AUERBACH:  On mute?

      23             SENATOR RIVERA:  There you go.  Now you're

      24      good.

      25             JOHN AUERBACH:  Great.  Thank you.









































                                                                   318
       1             Good afternoon.

       2             My name is John Auerbach, and I'm currently

       3      the president and CEO of Trust for America's Health.

       4             We're a 20-year-old non-profit, non-partisan,

       5      Washington, DC-based, public health and prevention

       6      organization, and we deal with issues such as

       7      emergency preparedness and response, and the health

       8      and well-being of older adults.

       9             I'm also a former city and state health

      10      commissioner, and a former associate director of the

      11      CDC.

      12             Part of our work has been to examine how each

      13      state is doing with response to COVID-19.

      14             And we have been impressed by both the skill

      15      and the effectiveness of the New York State

      16      Department of Health.  Its adoption of

      17      evidence-based practices and policies have

      18      contributed significantly to the decline in new

      19      cases in the state at the present time.

      20             Sound policy was difficult, particularly in

      21      the early days and weeks of COVID's arrival, because

      22      of the uniqueness of the violent -- of the virus,

      23      and the limitations of the appropriate protective

      24      measures within most of the nation's and the states'

      25      nursing homes.









































                                                                   319
       1             And it appears that the lack of such

       2      procedures led to the unintentional introduction of

       3      the virus into nursing homes as a result of workers

       4      and/or family members who were COVID-positive, or

       5      either asymptomatic or mild to moderate symptoms.

       6             Contributing to this early spread was the

       7      minimization of risk by the federal government, and

       8      delays in test availability, and restrictive federal

       9      guidelines, which meant that too few were tested and

      10      transmission was missed.

      11             I believe that the roots of this problem

      12      aren't state-specific, but, in fact, are part of a

      13      series of problems, including the cuts to federal

      14      emergency preparedness funding, the general

      15      underfunding of public health when not in the midst

      16      of a crisis, and, due as well to a general lack of

      17      attention to the health and well-being of older

      18      adults.

      19             Nursing homes receive insufficient

      20      reimbursement, and that contributes to inadequate

      21      pay for and training of their workers.

      22             And the current model of care makes it

      23      challenging to provide the highest quality of care

      24      when faced with a pandemic.

      25             As COVID spread in New York State, like









































                                                                   320
       1      others states, it was faced with rapidly increasing

       2      cases and rising hospital occupancy, and was faced

       3      to make the difficult decisions with how to best

       4      care for patients while they were ill and

       5      infectious, and, later, when they were no longer

       6      infectious and recovering.

       7             There are times when patients get stuck in

       8      acute-care hospitals when they don't need hospital

       9      care, because step-down or other facilities are

      10      either unwilling or unable to care for them.

      11             And this is problematic because it means

      12      hospital beds aren't available for others who need

      13      them, as well as, because it keeps patients in a

      14      setting that isn't particularly helpful or healthy

      15      for them.

      16             It seems that the decisions to return

      17      non-infectious post-COVID patients to the skilled

      18      nursing facilities, and admit patients with suspect

      19      COVID to a nursing home -- to nursing homes that

      20      were prepared to isolate them appropriately from

      21      other residents, were reasonable ones, as long as

      22      the patients returned or admitted were cared for

      23      properly and the proper precautions were taken.

      24             Such a policy shouldn't have off -- shouldn't

      25      offer any risk to other patients in nursing homes,









































                                                                   321
       1      and the data I've seen seems to reinforce that.

       2             We believe, at Trust for America's Health,

       3      that the best way to learn from the lessons of the

       4      last few months is to think critically about what we

       5      need to do in terms of improving long-term care and

       6      the health and well-being of older adults.

       7             We think that we should be examining the

       8      reconfiguring of long-term care, and placing greater

       9      emphasis on older adults remaining at home and aging

      10      in place.

      11             When there is impossible -- that is

      12      impossible, more attention should be paid to

      13      aligning nursing homes with acute-care facilities,

      14      perhaps functioning as extended or step-down wings

      15      of hospitals, where infection procedures may be more

      16      routine.

      17             This configure -- reconfiguration would

      18      require a business model for nursing homes, where

      19      reimbursement is more comparable to that of a

      20      hospital, and it would require reimbursement for

      21      more intensive home- and community-based services

      22      and support for caregivers.

      23             It also requires examining our support for

      24      public health agencies, in ensuring that they have

      25      the funds that are needed.









































                                                                   322
       1             These changes may seem big and like pipe

       2      dreams, but there are, actually, those in

       3      Washington, DC, who are now beginning to have those

       4      discussions.

       5             A group was set up at CMS to begin such

       6      discussions.

       7             At the National Academy of Medicine, there

       8      also is a convening to look at these issues.

       9             The lessons of COVID-19 involve recognizing

      10      you can't reduce illnesses, injuries, and death

      11      without taking proactive, not reactive, steps.

      12             And they can be accomplished by providing the

      13      funding, attention, prioritizing the lives and

      14      well-being of older adults, and demonstrating the

      15      willingness to make the necessary systemic changes

      16      when the models we have no longer meet the purpose.

      17             Thank you.

      18             SENATOR RIVERA:  Thank you, sir.

      19             I recognize the Assembly to begin questions.

      20             ASSEMBLYMEMBER BRONSON:  Yes.

      21             I recognize Assemblymember Kevin Byrne for 5

      22      minutes.

      23             ASSEMBLYMEMBER BYRNE:  Yes, thank you.

      24             I don't think I'm going to have to use the

      25      full 5 minutes, hopefully.









































                                                                   323
       1             Famous last words.

       2             I know you mentioned that there was limited,

       3      or, apparently, no State assistance for testing and

       4      PPE.

       5             I just wanted to make sure that was

       6      confirmed.

       7             I know there's more mandatory testing.

       8             And have you received any assistance from the

       9      State, financially, to offset those costs?

      10             LISA NEWCOMB:  So one segment of our industry

      11      is Medicaid-funded, so they have the ability to

      12      apply for funding under the CARES Act.

      13             But two-thirds of the industry has gotten no

      14      support whatsoever.

      15             ASSEMBLYMEMBER BYRNE:  Okay.

      16             Now, I know the State manufactured and

      17      disseminated a lot of PPE, hand sanitizer, all these

      18      different things, more towards the height of the

      19      pandemic.  A lot of it was distributed through our

      20      county health departments.

      21             Was any of that made available to your

      22      facilities as well, or was that really more for an

      23      urgent or emergency situation?

      24             LISA NEWCOMB:  Well, it was emergent for us.

      25             They -- ultimately, we did get assistance for









































                                                                   324
       1      a period of time.

       2             You know, I kind of ran out of time before,

       3      but, you know, one of our asks is that

       4      assisted-living, you know, residents and providers

       5      should be higher on the priority list when it comes

       6      to that distribution.

       7             ASSEMBLYMEMBER BYRNE:  No, understood.

       8             And so long as we're asking more of you,

       9      I feel like the State, personally, needs to do its

      10      part as well.

      11             This is a public health policy, to ensure the

      12      safety of those folks that you care for.

      13             So, thank you.

      14             I said I was going to be short, and, oh, my

      15      gosh, I've got 3 minutes and 10 seconds left.

      16             Thank you.

      17             Unless you want to say anything else?

      18             LISA NEWCOMB:  Can I have it?  Can I have it?

      19             No, that's okay.

      20             ASSEMBLYMEMBER BYRNE:  Thank you.

      21             SENATOR RIVERA:  Thank you, Assemblymember.

      22             To lead off in the Senate, Senator Rachel May

      23      recognized for 5 minutes.

      24             SENATOR MAY:  Thank you.

      25             And thank you all for your testimony.









































                                                                   325
       1             I wanted to direct one question to Roxanne --

       2      actually, two questions to you.

       3             You mentioned virtual visitation.

       4             How practical do you think this is in nursing

       5      homes, in terms of the availability of technology,

       6      and of staff who can support residents in using it?

       7             ROXANNE TENA-NELSON:  Our members have been

       8      extremely committed to making it work.

       9             I think one of our members, in speaking with

      10      them the other day, they did something like

      11      4,000 video conferences with families, just within

      12      their one organization, over the past few months.

      13             And, you know, we are all learning about how

      14      to do the virtual visits better, and virtual

      15      communication.

      16             So, you know, our members have been working

      17      really hard to make this kind of opportunity work.

      18             I think, also, some residents, for example,

      19      prefer telephone calls.  So it wasn't -- the video

      20      was disturbing or difficult.

      21             So a telephone call sometimes was even more

      22      effective for certain residents.

      23             And I think that's what's key about our

      24      members: they really focus in on the personalized

      25      way in which they communicate with their -- with









































                                                                   326
       1      their residents.

       2             Also, on the home-care side of things as

       3      well, working with caregivers, together, providing

       4      some resources to caregivers at home, was really

       5      important on the virtual front as well.

       6             SENATOR MAY:  Right.  Okay.

       7             Thank you.

       8             And have you heard about an issue with the

       9      new managed long-term-care policy changes that have

      10      gone into effect, where people, if they are in rehab

      11      in a nursing home for more than 90 days, they get

      12      dropped from their home care-managed, long-term-care

      13      plans?

      14             Have you heard about this as a problem?

      15             ROXANNE TENA-NELSON:  My understanding is,

      16      it's not dropped.  It is converting back to

      17      fee-for-service.

      18             What the State has learned in their

      19      experiment with managed long-term care for long-term

      20      care -- you know, people seeking long-term care and

      21      receiving those kinds of services, is that, the way

      22      that the managed way of caring for people -- for

      23      certain types of people was really not the best way

      24      to do it.

      25             It turns out to be much more effective, or,









































                                                                   327
       1      you know, because the cost is so high to care for

       2      such sick people with multiple comorbidities.

       3             And so the State, you know, recognized, and

       4      to their credit, that managed long-term care, in

       5      certain instances, was not the way to go.  In

       6      certain instances it may be.

       7             But, in particular, for those living in

       8      nursing facilities, reverting back to the

       9      fee-for-service model made more sense.

      10             And that's what I -- that's our take on that.

      11             SENATOR MAY:  Okay.

      12             Thank you.

      13             And then I have one question for -- oh,

      14      I lost her name, the assisted-living -- Lisa.

      15             LISA NEWCOMB:  Lisa.

      16             SENATOR MAY:  All right.

      17             I've heard from assisted-living

      18      administrators that the rules for nursing homes

      19      really shouldn't apply.

      20             Do you have any specific areas?  Like, is it

      21      testing? is it PPE?

      22             What are the most important areas where you

      23      would say there should be different criteria?

      24             LISA NEWCOMB:  No, I think -- you know --

      25      I mean, maybe even visitation.









































                                                                   328
       1             It gives me an opportunity to speak about

       2      visitation a little bit.

       3             You know, just because the prevalence is much

       4      lower, based on the data that, you know, has been

       5      provided, you know, perhaps, you know, it's not --

       6      it's not the 20-day -- 28-day rule.

       7             I'll also point out, somebody earlier had

       8      mentioned that that rule is from CDC guidance, which

       9      it is.  But, when I looked at that, that was tied to

      10      Phase 1 and Phase 2.

      11             So I'm thinking that there are ways that the

      12      department could loosen and make visitations more

      13      flexible.

      14             You know, the other issue is that, our staff,

      15      as long as they test negative, can return to work

      16      after having tested positive in 14 days.  And in

      17      some cases, even less than that.

      18             So, you know, those would be more reasonable.

      19             But I think it's almost more, like, you know,

      20      they put nursing home and ACF guidance together.

      21      And they're speaking kind of different languages to

      22      two very, very differently regulated entities.  And

      23      it creates a lot of confusion, and questions.

      24             SENATOR MAY:  Okay.

      25             Thank you very much.









































                                                                   329
       1             SENATOR RIVERA:  Thank you, Senator.

       2             Assembly.

       3             ASSEMBLYMEMBER BRONSON:  Yes, I recognize

       4      Chair Richard Gottfried for 5 minutes.

       5             ASSEMBLYMEMBER GOTTFRIED:  Thank you.

       6             Yeah, Mr. Auerbach, I have a couple of

       7      questions, mostly about you and the Trust for

       8      America's Health.

       9             I have to confess, I don't think I've ever

      10      heard of the Trust for America's Health.

      11             Can you tell me:  What it is?  What it does?

      12      Who funds it?  Who -- does it have members?  Are

      13      there people with whom or for whom it works?  What

      14      might it have done recently that I should have known

      15      about?

      16             JOHN AUERBACH:  Happy to do that.

      17             We are a 20-year-old non-profit,

      18      non-partisan group, as I mentioned earlier,

      19      based in Washington, DC.

      20             We are entirely funded by foundations.  More

      21      than a dozen foundations provide us with funding.

      22             We don't take government money and we don't

      23      take corporate money.

      24             We were established to be an independent

      25      voice for public health and prevention.









































                                                                   330
       1             We work to provide information about

       2      significant health issues, evidence-based policies

       3      and approaches.  We develop a variety of different

       4      publications.

       5             And we are also involved in educating policy

       6      members of the legislature at the federal level of

       7      Congress, and of the administration.  And we also

       8      work closely with state public health departments

       9      and local public health departments.

      10             In terms of some of the things that we've

      11      done recently:

      12             We -- we published several different reports

      13      this year, including a report, evaluating each

      14      state's work on emergency preparedness, on the

      15      response to obesity.

      16             We're about to publish a report on

      17      climate-change efforts at each state level.

      18             And we have worked I think effectively with

      19      both the administration and with Congress to promote

      20      certain policies that have been beneficial to

      21      states, like New York, in terms of receiving the

      22      resources necessary to both support public health

      23      and to combat the COVID pandemic.

      24             ASSEMBLYMEMBER GOTTFRIED:  Are any of the

      25      foundations that support you, things that I might









































                                                                   331
       1      have heard of?

       2             JOHN AUERBACH:  Sure.

       3             Robert Wood Johnson Foundation.

       4             Kellogg Foundation.

       5             Kaiser Permanente's philanthropic arm.

       6             Kresge Foundation.

       7             The John A. Hartford Foundation has a

       8      particular interest in healthy aging.  So you might

       9      have heard of that organization.

      10             The CDC Foundation.

      11             The de Beaumont Foundation.

      12             So, I hope you've heard of some of those,

      13      so...

      14             ASSEMBLYMEMBER GOTTFRIED:  Yep.

      15             Okay.

      16             Well, thank you.

      17             JOHN AUERBACH:  You're welcome.

      18             ASSEMBLYMEMBER GOTTFRIED:  That's it.

      19             SENATOR RIVERA:  All right.

      20             Thank you, Assemblymember.

      21             Moving on to the Senate, recognizing

      22      Senator Serino for 5 minutes.

      23             SENATOR SERINO:  Thank you, Chairman.

      24             And thank you all for being here today, and

      25      all of the great work that you do.









































                                                                   332
       1             You care for some of the most vulnerable

       2      New Yorkers.  But, unfortunately, I think the

       3      assisted-living industry, especially, has been an

       4      afterthought to the State for far too long.  Right?

       5             And that's only exacerbating the current

       6      problems you're facing now with this pandemic.

       7             I'm glad, Lisa, that you brought up the fact

       8      that the rate for these facilities hasn't changed

       9      since 2007.

      10             That's awful.

      11             As you know, I've carried the bill to

      12      increase that rate for some time now.

      13             And, in 2018, it did pass in the Senate, but

      14      it failed to advance in the Assembly.

      15             I'd like to take this opportunity to urge my

      16      colleagues to make this initiative a top priority.

      17             These facilities, as you've heard today,

      18      can't afford to wait, and they will close, putting

      19      these vulnerable New Yorkers in an even more

      20      vulnerable position.

      21             Assemblyman Byrne touched on this as well.

      22             It is my understanding that the

      23      assisted-living facilities are having tremendous

      24      difficulty covering testing costs to adhere to the

      25      State mandate.









































                                                                   333
       1             Is that right?

       2             And would you say being reimbursed for

       3      testing needs to be a top priority now?

       4             ROXANNE TENA-NELSON:  Yes.

       5             LISA NEWCOMB:  Yes, thank you, Senator.

       6             Yes.

       7             SENATOR SERINO:  Thank you.

       8             And in addition to addressing this particular

       9      need, if you had to prioritize one other change to

      10      improve the State's response for this sector in

      11      particular, what would be at the top of your list?

      12             You all have some different idea or the same

      13      idea?

      14             LISA NEWCOMB:  I think more collaboration

      15      with the association, with providers, when they're

      16      making policies.

      17             So, for instance, if they were -- when they

      18      were making their visitation policy, you know, we

      19      weren't aware of, you know, what the requirements,

      20      the rules, were going to be.

      21             And, you know, so then that came out.

      22             And we've been fighting very hard for

      23      visitation for weeks.

      24             And finally comes out, you know, only to find

      25      that there's, like, you know, a major obstacle.









































                                                                   334
       1             So I think the communication with us, you

       2      know, while they're making the policy decisions

       3      rather than after.

       4             SENATOR SERINO:  That's true.

       5             Very good.

       6             Thank you.

       7             Anybody else have anything to add?  Or --

       8             ROXANNE TENA-NELSON:  I would just support

       9      funding that is -- really prioritizes long-term care

      10      in a way that, you know, it hasn't happened in

      11      New York State, and federally, because of folks,

      12      especially the not-for-profit and public community,

      13      is really extremely financially fragile, definitely

      14      before COVID.  And COVID has just such a major

      15      impact on the not-for-profit and public community.

      16             So any way that the funding can be supportive

      17      of what we've been through, and what we will

      18      probably go through during a time where there will

      19      be flu season, coastal storms, school reopening, all

      20      the testing costs, and all of the costs that have

      21      incurred, are tremendous.

      22             And the last thing we would want is for, you

      23      know, the destruction of the organizations that are

      24      really focused on caring for older and disabled

      25      people, especially the ones that are so









































                                                                   335
       1      high-performing.

       2             JOHN AUERBACH:  If I could weigh in, too,

       3      I think I would also speak to the needs of older

       4      adults who are still in their home, but have

       5      challenging times staying in their home, because of

       6      social isolation, sometimes lack of food in the

       7      home, lack of other services.

       8             So I think, in addition to the very important

       9      services that my colleagues on the panel are

      10      mentioning, paying attention to home-based services

      11      and supports, so that we keep people as independent

      12      and as healthy as possible, is critically important.

      13             SENATOR SERINO:  And that's very true, John.

      14             You know, a lot of times that population gets

      15      left out of the equation as well.

      16             So thank you all so much again.

      17             A deep heartfelt thank you for all that you

      18      do.

      19             LISA NEWCOMB:  Thank you.

      20             SENATOR RIVERA:  Thank you, Senator.

      21             Back to the Assembly.

      22             ASSEMBLYMEMBER BRONSON:  Thank you.

      23             I now recognize Assemblymember

      24      Brian Manktelow for 5 minutes.

      25             Brian, are you with us?









































                                                                   336
       1             No, he just --

       2             ASSEMBLYMEMBER MANKTELOW:  I got it.

       3             ASSEMBLYMEMBER BRONSON:  -- okay.

       4             ASSEMBLYMEMBER MANKTELOW:  Thank you,

       5      Chairman.

       6             Lisa, just a couple questions on finance.

       7             Our assisted-living facilities, where do you

       8      see them in the scheme of things as far as

       9      financially secure?

      10             LISA NEWCOMB:  Well, as I mentioned a little

      11      in my testimony, there's -- so there's three

      12      segments of the industry when it comes to finances.

      13             The -- you know, the ones that lack the most

      14      resources are straight SSI-only building, which

      15      there -- you know, there aren't too many of them

      16      left.  You know, they're hanging by a thread.

      17      I mean, these additional unanticipated costs are

      18      just not sustainable for them.  And, even before

      19      this, we've seen them closing.

      20             You see, then we have some who also get

      21      Medicaid support on top of the SSI.  That's called

      22      the "assisted living program," which is a wonderful

      23      program because it allows, really, nursing

      24      home-eligible people to be able to age in place in

      25      the adult-care facility.









































                                                                   337
       1             So -- but, you know, it is Medicaid.

       2             Our Medicaid rate is based on some strange

       3      formula, that it's half of the nursing home rate

       4      from many, many years ago.

       5             And so that's, basically, kind of a rate that

       6      hasn't changed either.

       7             So it keeps, you know, the SSI building

       8      afloat, but, you know, they have their challenges

       9      too.

      10             And then, in the private pay, we have lots

      11      of -- you know, there -- there's -- you know, there

      12      are some for very, very wealthy people.  But there

      13      are a lot, you know, I'd say most in between are

      14      for, you know, seniors who are middle --

      15      middle-income.  And, you know, they can be only

      16      absorb so much additional cost.  And the provider

      17      that -- you know, that -- that serves them can only

      18      absorb, you know, so much.

      19             So, you know, it does kind of run the gamut.

      20             ASSEMBLYMEMBER MANKTELOW:  Okay, so one --

      21      I have a few assisted-living facilities in my

      22      district.

      23             In meeting with one of the owners, one of the

      24      issues they have is the unemployment situation right

      25      now.









































                                                                   338
       1             Right now, people can get unemployment pretty

       2      easy, they can apply for it.  And the amount of

       3      money they're getting is more than the staff members

       4      are getting paid normally.

       5             Can you see a fix that we need to do from the

       6      State side there, to help secure the workforce?

       7             LISA NEWCOMB:  Well, I guess it goes back to

       8      funding again.  I hate to sound like a broken

       9      record.

      10             But, you know, we had -- I had an SSI

      11      provider who ended up closing.  It was a

      12      family-owned, and they closed several buildings in

      13      the North Country.

      14             And, you know, he always said, look, I want

      15      to pay my -- I want to pay my staff what they

      16      deserve.  I want to pay them more than minimum wage,

      17      or a little bit above minimum wage.  But, if you're

      18      only giving me $40 a day to take care for this frail

      19      elderly senior, you know, I can't do that.

      20             So, you know -- I mean, I think that, you

      21      know, if you have the resources, then you would be

      22      offering wages that would be beyond the $600, if you

      23      could.

      24             ASSEMBLYMEMBER MANKTELOW:  So when most

      25      facilities close, where do the seniors go then?









































                                                                   339
       1             LISA NEWCOMB:  Nursing homes.

       2             ASSEMBLYMEMBER MANKTELOW:  And are they able

       3      to take everyone at this point?

       4             LISA NEWCOMB:  Well, I -- I mean, yeah.

       5      I mean, I think we talked about, you know, vacancies

       6      in nursing homes earlier on today.

       7             Yes.

       8             And it's just tragic, because they don't

       9      really need to go to the nursing home.

      10             The assisted-living is much more of an

      11      independent, you know, a setting.  It's very

      12      socially-based.

      13             But they are frail elderly as well, and,

      14      generally, they can't really live alone.  They sort

      15      of need somebody around on a 24-hour basis, you

      16      know -- you know, for supervision purposes.

      17             So the nursing home is the default.

      18             ASSEMBLYMEMBER MANKTELOW:  Okay.  Thank you,

      19      Lisa.

      20             That's all I have.

      21             SENATOR RIVERA:  Thank you, Assemblymember.

      22             Moving on to the Senate, recognizing

      23      Senator Boyle for 3 minutes.

      24             Thank you.

      25             SENATOR BOYLE:  Thank you.









































                                                                   340
       1             Thank you, Mr. Chairman.

       2             So I represent part of Long Island, and I can

       3      tell you that, when this pandemic started, I had

       4      gotten a phone call from a constituent, who told me

       5      that their father was in the nursing home down here.

       6      And that (video lost) --

       7             OFF-SCREEN TECHNICIAN:  We lost the senator.

       8             SENATOR RIVERA:  Senator Boyle?

       9             Senator Boyle?

      10             All right, until we get him back, I've got a

      11      couple.  If you could put five on the clock.

      12      I won't take all of it, but...

      13             Thank you all for being here.

      14             One of the things that I wanted to ask about,

      15      because you've made reference to it a few times, but

      16      I think it's important to kind of really put it on

      17      the record:

      18             There was -- we can talk about all the

      19      stresses that the crisis has put on all of these

      20      facilities.

      21             But you have spoken about, and I want to give

      22      you an opportunity to kind of expand on that, on

      23      what this situation was before the crisis, that you

      24      were already put in very stressful positions.

      25             Because if -- if there's requirements that









































                                                                   341
       1      are -- if there's things that the State required of

       2      you as institutions during a crisis time, and you

       3      had few resources to begin with, that makes it all

       4      the more difficult to be able to manage, to hold on.

       5             So give us a view about that, and the rest of

       6      the time I'll give to you.  But give us a view on

       7      that.

       8             And, also, to also give you an opportunity to

       9      tell us:  What are the things that would make best

      10      quality facilities be able to survive?

      11             If you could give us kind of a sense of that,

      12      I would be appreciate it.

      13             LISA NEWCOMB:  Sure.

      14             ROXANNE TENA-NELSON:  So --

      15             LISA NEWCOMB:  I'm sorry.

      16             Is that for Roxanne?

      17             Go ahead, Roxanne.

      18             SENATOR RIVERA:  That's for anybody who wants

      19      to take it, but you can start, and Roxanne --

      20      Roxanne, start, you start it, and then Ms. Newcomb.

      21             How about that?

      22             ROXANNE TENA-NELSON:  Okay.

      23             So -- sorry.

      24             I just wanted to respond that, we were

      25      definitely financially fragile coming into COVID.









































                                                                   342
       1             You know, just -- so, for nursing homes in

       2      our community, there was a 62-day daily shortfall in

       3      the Medicaid program, and, also, the margins were at

       4      negative 5.2 percent; all in my written testimony.

       5             For certified home-health agencies, for

       6      example, on the community-based side of things,

       7      78 percent of them were operating in the red.

       8             So it was a dire situation even before COVID

       9      hit.

      10             Now that we endured this spring, you add the

      11      occupancy rate -- the losses due to occupancy fall,

      12      and then you add all of the expenses, and I talked a

      13      little bit about the magnitude of that, in millions

      14      of dollars per facility.

      15             SENATOR RIVERA:  Ms. Newcomb.

      16             LISA NEWCOMB:  I would just add, you know,

      17      I go back to where the most indigent, you know, are

      18      living.

      19             Obviously, they were under strain before,

      20      especially the straight SSI.  Again, $40 a day to,

      21      you know, provide a whole slew of services, you

      22      know, to -- to the residents.

      23             So, they're going to go first.

      24             The ones that are left, the -- you know, the

      25      ones that have the Medicaid supplement and the









































                                                                   343
       1      private pays, you know, they're all in different

       2      situations.

       3             Some -- they've been absorbing it, but

       4      each -- you know, as each week passes, a larger

       5      facility is going to, you know, have thousands and

       6      thousands, maybe ten thousands, you know, per week

       7      just for the testing.

       8             And, you know, that -- that's on top of the

       9      PPE and -- and the cleaning supplies, and -- and --

      10      and all of that.

      11             So --

      12             SENATOR RIVERA:  You would say, to be able to

      13      have some of the best -- some these facilities that

      14      provide good service, for them to be able to

      15      survive, as you talked about the funding more than

      16      once, you would say that that's kind a -- the best

      17      kind of a baseline: they have to be better reim --

      18      their reimbursements need to be more?

      19             LISA NEWCOMB:  Sure.

      20             Yes, yes, yes.

      21             For those that serve people that are

      22      indigent, yes.

      23             SENATOR RIVERA:  Okay.

      24             Thank you so much to all of you.

      25             Seems that we have, unfortunately, lost









































                                                                   344
       1      Senator Boyle.

       2             We will move on to the next panel.

       3             We will make sure that whatever questions he

       4      had, we make available in writing to the panel.

       5             Thank you so much, folks.

       6             Moving on to Panel 5 -- we just got four more

       7      to go, folks -- Panel 5, we have:

       8             Alexa Rivera, who is the co-founder of

       9      Voices for Seniors.

      10             We have --

      11             These are my cousins, by the way, lest you

      12      forget.

      13             -- Vivian Rivera-Zayas, co-founder of

      14      Voices for Seniors;

      15             Grace Colucci, also for Voices for Seniors.

      16             Kathleen Webster, Neighbors to Save

      17      Rivington House;

      18             And, Lenore Solowitz, who is a resident of

      19      Garnerville, New York.

      20             Senior, Monsieur, Gottfried, are you with us?

      21             ASSEMBLYMEMBER GOTTFRIED:  Yes, I am here.

      22             Just took a little doing to un-mute myself,

      23      and now I'm unhidden as well.

      24             So, do each of you swear or affirm that the

      25      testimony you're about to give is true?









































                                                                   345
       1             VIVIAN RIVERA-ZAYAS:  I do.

       2             KATHLEEN WEBSTER:  I do.

       3             ASSEMBLYMEMBER GOTTFRIED:  Okay.

       4             SENATOR RIVERA:  All right.  And any -- in

       5      any order that you folks would like to continue.

       6             KATHLEEN WEBSTER:  You better pick.

       7             SENATOR RIVERA:  All right, then I shall.

       8             Let's go with Alexa Rivera.

       9             She is in the car.

      10             So let's go with Vivian Rivera, then.

      11             You're on mute, my friend.

      12             VIVIAN RIVERA-ZAYAS:  Hi, good afternoon, and

      13      greetings.

      14             Thank you for the opportunity to not only

      15      speak on behalf of my mother, but to also represent

      16      the families and the group, Voices for Seniors,

      17      which is a group consisting of grieving and

      18      frustrated loved ones impacted directly by the COVID

      19      pandemic in our nursing homes.

      20             The seniors who reside in nursing homes are

      21      often there for long-term care, as well as

      22      short-term care resulting from sometimes just minor

      23      surgeries, like knee surgery or a neck surgery.

      24             My mother, Anna Martinez, was there for

      25      treatment for minor wounds, and only expected to be









































                                                                   346
       1      there for four weeks.

       2             It is shortsighted for us to believe that, in

       3      the future, we may also not necess -- we may also

       4      necessitate a visit at one of these very facilities.

       5      But having to do so with no family or -- to visit or

       6      advocate for us is truly unconscionable, lonely and

       7      voiceless in a terrible situation and system.

       8             Every day I recount the days I could not be

       9      with my mother to advocate for her in a nursing home

      10      that stated they had taken every precaution in place

      11      to care for her while our governor mandated they

      12      accept COVID-positive patients.

      13             Many nursing homes are cited repeatedly for

      14      not having proper infectious-disease protocols in

      15      place, with no severe penalties.

      16             So mandated COVID-positive patients to be

      17      accepted in light of this defies logic.

      18             The thought process of not discriminating

      19      against a few COVID-positive patients at the expense

      20      of the COVID-free residents, as a whole, is

      21      dangerous and negligent.

      22             My mother, and many others, contracted the

      23      virus at the nursing home.  And today I am still

      24      under the belief that she was unaware and uninformed

      25      as to what was happening to her.









































                                                                   347
       1             As someone who spoke limited English, it

       2      appears she was not informed as to her condition,

       3      and she -- as she never shared that information with

       4      us who were always her best advocates.

       5             Since her unnecessary passing, I hear

       6      countless stories of others like me who are enduring

       7      the pain of not seeing their family and their loved

       8      ones, and the uncertainty of their well-being.

       9             Hopeful to see them one week, and then the

      10      next week the goalpost is moved once again with no

      11      end in sight.

      12             With the fall and winter approaching, we

      13      [indiscernible] need to ask families to be prepared

      14      to stay away from their loved ones for the

      15      foreseeable future? -- unlike, and with all due

      16      respect, Commissioner Zucker and Governor Cuomo who

      17      are more than likely able to see their own mothers

      18      and fathers.

      19             Elderly bewildered by the new sense of

      20      abandonment in a time they need their families the

      21      most.

      22             My mother was sad and homesick.

      23             It was the first surgery she ever had, and

      24      her first visit to a nursing home.

      25             What was meant to be a four-week stay ended









































                                                                   348
       1      up being a two-and-a-half-month stay when the social

       2      worker and case manager failed to return our calls

       3      to finalize her discharge.

       4             When the pandemic became more prevalent, and

       5      the facility did not offer us the option to

       6      discharge her before the facility closed its doors,

       7      our mother became ill.

       8             And when I detected something was terribly

       9      wrong, our mother was too ill to speak on the phone,

      10      and the staff continued to reassure us that she was

      11      fine.

      12             When we got a call that she was going home on

      13      Friday, March 27th, despite showing all the

      14      symptoms of COVID, except a fever, without telling

      15      us that -- without telling us, and she was -- or,

      16      telling us that she was suspected to have had COVID,

      17      they continued to reassure us and downplay her

      18      symptoms.

      19             And when she became gravely ill, they failed

      20      to escalate her care and send her to the hospital.

      21             COVID-19 has helped shed a light, that while

      22      immunity is given to owners, the directors, and the

      23      staff, it is the resident, our vulnerable elderly

      24      population, that is not immune from abuse, from

      25      neglect, and from dismal care, with no family or









































                                                                   349
       1      recourse.

       2             An unnecessary amount of death and carnage

       3      was inflicted on our seniors by the mandate to take

       4      COVID-positive patients.

       5             To the inadequate levels of staffing and the

       6      infectious-disease protocols that many facilities,

       7      and time and time again, have failed to put in

       8      place, was a true recipe for a disaster.

       9             If that weren't enough, families have been

      10      stripped of their rights to visit their loved ones,

      11      and are often lied to and misled by the very leaders

      12      and staff charged with the duty to keep them safe.

      13             I'm here to ask that a true and sincere

      14      evaluation of our nursing homes take place, taking

      15      into account the input and voices of families, like

      16      my own, and that, finally, seniors will get the care

      17      that they are deserve [sic], and that no longer get

      18      the short end of the stick.

      19             Thank you so much.

      20             SENATOR RIVERA:  Thank you.

      21             Next -- thank you, Ms. Rivera-Zayas.

      22             Alexa Rivera, I know that you -- I noticed

      23      that you were in a car earlier.

      24             Not sure if it is a quiet enough car.

      25             Ms. Rivera?









































                                                                   350
       1             All right.  So we'll move on to

       2      Grace Golucci -- Grace Colucci.  I'm sorry.

       3             Grace Colucci.

       4             GRACE COLUCCI:  Hi.  How are you?

       5             Thank you so much for giving me the

       6      opportunity to voice -- be a voice for my father,

       7      and for all the families that were affected by the

       8      COVID pandemic, with people that were in the nursing

       9      homes.

      10             When the COVID-19 first appeared in the U.S.,

      11      Governor Cuomo and Mayor de Blasio made light of

      12      the risks, and encouraged people to go about their

      13      daily lives, as all was well.

      14             We quickly found out that all was not well.

      15             Governor Cuomo was on TV daily, making

      16      appeals for ventilators, PPE, and hospital beds.

      17             The President swiftly sent what was

      18      requested, converting the Javits Center, sending the

      19      "Comfort," sending millions of tests, PPE, and more

      20      ventilators than were needed.

      21             On March 25th, under the directive of

      22      Governor Cuomo's mandate, nursing homes were not

      23      able to deny taking COVID patients even though they

      24      housed the most vulnerable.

      25             The Javits Center and "Comfort" went,









































                                                                   351
       1      virtually, unused.

       2             Each day the news reports were escalate --

       3      with escalating numbers of new COVID cases and the

       4      death count grew.

       5             The shortage was not hospital beds, but room

       6      at the funeral homes.

       7             Governor Cuomo stated that he wouldn't put

       8      his mother, Matilda, in a nursing home.

       9             I'd love to tell you about my dad, but -- and

      10      I'm sure you can understand that he was a wonderful

      11      person who gave -- made many sacrifices for his

      12      family and his country, as well as everyone else

      13      that has been affected.

      14             My dad had suffered several heart attacks,

      15      had a valve replacement, several minor strokes, that

      16      left him unable to properly cut his food or take --

      17      dress himself properly; he needed help.  He was also

      18      developing dementia.

      19             My dad is not withstood as one of the nursing

      20      home statistics because he wasn't tested until

      21      four days after his release.

      22             In February he was hospitalized with

      23      aspirational pneumonia.

      24             While in the hospital, my mom was there every

      25      day to help my dad with his meal and other needs.









































                                                                   352
       1             March 19th dad was released and immediately

       2      sent to Gurwin Jewish Nursing and Rehabilitation

       3      Center for rehab.

       4             The COVID restrictions had just gone into

       5      place, and mom was not allowed to be there.

       6             Shortly after, she received a phone call that

       7      there was one patient and one employee who tested

       8      positive for COVID-19.  But they assured her that

       9      they were in a different part of the facility and

      10      that my dad was not at risk.

      11             That turned out not to be the case.

      12             My dad was discharged April 8th, 13 pounds

      13      lighter, and unable to eat after not being able to

      14      eat for so long.

      15             Dad was unable to walk.  My brothers had to

      16      carry him into the car, and then the house.

      17             A nurse from the nursing home came to the

      18      house twice over the next four days as follow-up.

      19             We found out afterwards that she was

      20      COVID-positive, and who knows how many people were

      21      exposed from her entering the house.

      22             My mom and my brothers ended up a week later

      23      testing positive.

      24             On April 12th my dad's BP plummeted, his

      25      temperature rose over 103, and his breathing was









































                                                                   353
       1      rapid and shallow.

       2             My brothers rushed him to the ER.

       3             He was given a rapid COVID test, and was

       4      positive and admitted.

       5             After a long hospital stay, my dad was no

       6      longer exhibiting symptoms, but he was still testing

       7      positive.

       8             The doctors said, because he couldn't eat,

       9      they recommended hospice care.

      10             We were allowed to bring him home for at-home

      11      hospice.

      12             Dad passed a week and a half later on

      13      May 24th.

      14             My mother is haunted by one of the things my

      15      dad said to her:  "You can eat, but I can't."

      16             If my mother was able to be with him and feed

      17      him, this may not have been a situation, and my

      18      father may not have been one of the ones that have

      19      passed.

      20             He was a very strong fighter.

      21             Every day I watched Governor Cuomo's press

      22      conferences.

      23             He went on and on how he was the one that was

      24      the benchmark on how to handle and stop the

      25      pandemic.









































                                                                   354
       1             At one press conference he was asked:  Why

       2      did the nursing homes have to take the COVID

       3      patients?

       4             And he answered, "Because that was the rule."

       5             I think about all the families who are unable

       6      to be with their loved ones as they take their final

       7      breath, and all the families whose loved ones, not

       8      sick with COVID, but are also being deprived of

       9      seeing the people who love and sustain them.

      10             To hear Governor Cuomo turn his command, that

      11      "this was the rule," and to blaming the nursing

      12      homes, their employees, and even the families, for

      13      the thousands of deaths, while he went on his

      14      brother's TV show, joking about COVID testing with a

      15      giant cotton swab, and, laughing a late-night TV

      16      show about his stage-zero dating life, is a knife to

      17      my heart.

      18             We need accountability.

      19             Instead of protecting -- instead of

      20      protections being given to the nursing homes and,

      21      worse, to those who mandated the nursing homes take

      22      the COVID patients, why did the -- did

      23      Governor Cuomo mandate that the nursing homes have

      24      to take COVID patients when the CDC advised against

      25      that?









































                                                                   355
       1             I hope that, as a result, that we will be

       2      able to have a bill of rights for seniors, where

       3      families and seniors are given rights to be able to

       4      care for their loved ones.

       5             Pre-COVID, families were necessary in the

       6      care of their -- their family --

       7             SENATOR RIVERA:  Ma'am, if you could wrap --

       8      if you could wrap.  Your time is --

       9             GRACE COLUCCI:  Sure.

      10             SENATOR RIVERA:  [indiscernible

      11      cross-talking] --

      12             GRACE COLUCCI:  Okay.

      13             I just want to let you it know that, today,

      14      my family is still waiting to be able to have a

      15      funeral mass and military service that my father

      16      deserves.

      17             We're not able to have my whole family, never

      18      mind friends, in attendance because of the

      19      restrictions that are still in place.

      20             Thank you for taking the time to listen to

      21      this, and I urge you to withdraw the power that you

      22      have given the governor to make these mandates all

      23      on his own, and not be able to get approval from the

      24      Senate and the Assembly.

      25             Thank you.









































                                                                   356
       1             SENATOR RIVERA:  Thank you, Ms. Colucci.

       2             Followed up by Ms. Kathleen Webster.

       3             KATHLEEN WEBSTER:  Thank you.

       4             First, my condolences to both Grace and

       5      Vivian.

       6             I'm Kate Webster with Neighbors to Save

       7      Rivington House.

       8             We fought to save the once-largest skilled

       9      nursing home dedicated solely to those who were

      10      trying to survive AIDS.

      11             The year it opened, that mortality rate had

      12      reached an all-time high of almost 51,000 deaths.

      13             The state's dormitory authority had financed

      14      the state-of-the-art infectious-disease site with

      15      $72 million in bonds.  It was a non-profit.

      16             Through a series of events, the Allure Group

      17      took it over in short order, but, planned long

      18      before, they sold it for condos.

      19             Taxpayer-funded equipment was in a dumpster,

      20      staff laid off, patients transferred without the

      21      required 90-day notice or vetted plan.

      22             Despite this, New York State licensed the

      23      Allure Group to take over more nursing homes, one in

      24      Harlem.

      25             During the pandemic, at least 20 bodies in









































                                                                   357
       1      black bags were secretively carted out of that home,

       2      while reporting only 5 people had died of COVID.

       3             Media and staff reports from their other

       4      sites were no better.

       5             The demise of Rivington House was one of many

       6      warnings of the results of profit-focused operators

       7      and toothless oversight.

       8             The department of health's vetting arm is the

       9      public health and health planning council.  It has

      10      24 appointed members, many with expertise, and many

      11      have a very real potential conflict of interest, and

      12      there is but one consumer rep.

      13             There is a strong correlation of nursing home

      14      for-profit ownership and reduced quality of care,

      15      conditions that existed prior to the pandemic, shown

      16      in study after study to have exacerbated COVID-19

      17      deaths.

      18             Over 90 percent of nursing homes in the U.S.

      19      are now run for profit.

      20             Along with those major changes in ownership

      21      structure and management, the degree of complexity

      22      has greatly increased, with LLCs, et cetera.

      23             There are many ways to hide funding extracted

      24      from the care it was intended for.

      25             We need independent legal and financial









































                                                                   358
       1      experts to serve on or advise [indiscernible] to

       2      develop competency and explain industry financials

       3      to the rest of us.

       4             Licensing should require financial

       5      transparency and mechanisms, like medical-loss

       6      ratios, empowered paid ombudsmen, et cetera.

       7             Private-equity buy-outs of nursing homes are

       8      linked with four patient-to-nurse ratios,

       9      lower-quality care, declines in patient-health

      10      outcomes, and weaker performances on inspections,

      11      according to new research from the Wharton School,

      12      NYU's Stern School, Chicago's Booth School of

      13      Business, and from other studies.

      14             In Connecticut:

      15             For sites with at least one confirmed case of

      16      COVID per resident day, every 20-minute increase in

      17      RN staffing was associated with 22 percent fewer

      18      confirmed cases of COVID.

      19             And in sites with at least one death from

      20      COVID, every 20-minute increase in RN staffing

      21      significantly predicted 26 percent fewer deaths.

      22             From Canada:

      23             Government-owned facilities provided 61 more

      24      minutes of staffing per resident day than for-profit

      25      facilities.









































                                                                   359
       1             With the same public funding, for-profit

       2      operators failed to deliver 207,000 hours of funded

       3      care, while the not-for-profit sector delivered

       4      80,000 more care hours than they were funded for.

       5             Facilities run on a for-profit basis had more

       6      extensive outbreaks and more COVID-related deaths

       7      than facilities run on a non-profit basis.

       8             From California:

       9             In sites with RN staffing below the

      10      recommended minimum standard, COVID outbreaks

      11      occurred more often.

      12             They were twice as likely to have residents

      13      with COVID infections than adequately-staffed

      14      facilities.

      15             Nursing homes conceal a shadowy world of

      16      concealed ownership, hedge fund operators, and

      17      private-equity firms; yet they are staffed by some

      18      of the lowest-paid workers in the country.

      19             This is the public's money, and we shouldn't

      20      continue to put up with secrecy.

      21             If requirements to fund adequate staffing

      22      levels hurt for-profits' profits, then it's time

      23      this care is turned over to truly non-profit

      24      providers.

      25             Our state needs to face this reality and









































                                                                   360
       1      intervene on behalf of our most vulnerable.

       2             Too many seniors in nursing homes have no

       3      ability to fight for their lives.  If they have

       4      them, their families have no strength left for

       5      advocacy.

       6             They, and the best of our caregivers, were

       7      left alone to handle a crisis of biblical

       8      proportion.

       9             Dr. Fauci said:

      10             "There were many, many, many nursing homes

      11      that got no infections.  Just because you're a

      12      nursing home doesn't mean you're going to get an

      13      outbreak.

      14             "It's how you have your staff and the actual

      15      structure and the standard operating procedures that

      16      have made certain nursing homes highly vulnerable.

      17             "You've got to have" --

      18             "You've got to fix that, and you got fix it

      19      fast, or you don't get money."

      20             And I do want to say that the nursing homes

      21      I'm referring to were mostly peopled by Black and

      22      Brown men.

      23             And I think that hasn't been said enough

      24      here, but, in 5 minutes, that's what I've got.

      25             But in my testimony of 13 pages, I devote









































                                                                   361
       1      some time to that.

       2             Thank you.

       3             SENATOR RIVERA:  Thank you, Ms. Webster.

       4             Followed up by Ms. Lenore Solowitz.

       5             LENORE SOLOWITZ:  [Inaudible.]

       6             SENATOR RIVERA:  You're still muted,

       7      Ms. Solowitz.

       8             There you go.

       9             LENORE SOLOWITZ:  Can you hear me?

      10             SENATOR RIVERA:  Yes, ma'am.

      11             LENORE SOLOWITZ:  I just want to thank you

      12      today for looking into this problem.

      13             I brought my mother back to her facility on

      14      March 13th.  We spoke every evening.

      15             On Tuesday, March 17th, in the afternoon,

      16      my mother called me to tell me the facility was

      17      going to call me about something.  They didn't tell

      18      her what it was about.

      19             I called the facility to see what was going

      20      on.

      21             They told me there was going to be a

      22      lockdown, effective immediately, due to COVID-19.

      23             My mother was 98 years old and completely

      24      mentally competent.

      25             She had a private room.









































                                                                   362
       1             Everyone had to stay in their room.

       2             She ate her meals in her room.

       3             And to the best of my knowledge, there was no

       4      COVID in the facility at this time.

       5             I thought she'd be safe.

       6             Little did I know the horror show that was

       7      about to unfold.

       8             The facility was completely unprepared to

       9      handle this situation.  And once the COVID patients

      10      arrived, they really were in trouble.

      11             COVID patients were not separated from the

      12      residents.  The facility did not have enough

      13      supplies.

      14             On a regular weekday basis, there were not

      15      enough aides to attend to the residents.  Weekends

      16      were much worse.  Areas were left unattended for

      17      long periods of time.

      18             When the COVID patients arrived, a lot of the

      19      staff refused to come into work.

      20             Some of the staff that stayed were catching

      21      COVID.

      22             There was a young nurse that had a

      23      miscarriage a year and a half ago.  She was

      24      six months pregnant.  She came into work, and she

      25      asked the director for a mask.  And the director









































                                                                   363
       1      told her, "We don't have any masks.  We're going to

       2      run out if we give you a mask."

       3             This is how unprepared they were.

       4             I visited my mother for a few times a week.

       5             Once they knew the residents had a family

       6      member coming in, they were a lot more careful.

       7             I was my mother's advocate, and I had to

       8      speak up on her behalf quite a few times.

       9             When the facility went on lockdown, they had

      10      full reign, and this is where my problems began.

      11             I called my mother to check up on her.

      12             She told me her hip hurt and nobody was

      13      taking care of her.

      14             Of course they couldn't take care of her

      15      because they were extremely short-handed.

      16             I called and I got that settled.

      17             A few days later she called and told me, "You

      18      know, I'm in my right mind and I know what I'm

      19      talking about."

      20             And I said to her, "Of course you are.

      21      What's the problem?"

      22             The aides didn't want to bother with her, and

      23      her pain, so they told her she didn't know what she

      24      was talking about.

      25             This is what happens when you have no









































                                                                   364
       1      representation in these facilities.

       2             In addition, when I called the front desk to

       3      check on her that night, nobody, but nobody,

       4      answered the phone.

       5             I called at 9 p.m., and I kept calling, and

       6      nobody answered till 2 a.m.

       7             Talk about stress and frustration.

       8             I called the next morning, and I was told

       9      they were going to do a chest X-ray, which they did

      10      that evening.

      11             I called my mother in the afternoon to tell

      12      her about the chest X-ray.

      13             A nurse or aide answered the phone, and

      14      I could hear my mother crying in background, "It

      15      hurts, it hurts."

      16             These are the last words I heard my mother --

      17      I heard from my mother.

      18             Our family doctor called me the next morning

      19      and told me my mother had pneumonia and she was

      20      exhibiting signs of COVID.

      21             The next morning, my doctor called to tell me

      22      my mother passed away.

      23             And the words, her last words, "It hurts, it

      24      hurts," will stay with me forever and haunt me.

      25             The residents trusted the facilities to keep









































                                                                   365
       1      them safe.

       2             Here is a partial text my mother's friend

       3      sent to her.

       4             "This lockdown won't be over anytime soon.

       5      They have to discover a vaccine for this virus, but

       6      at least we're safe here."

       7             Well, he got COVID.

       8             I wonder how many families would have made

       9      different arrangements for their loved ones if they

      10      had known what the Cuomo administration was going to

      11      do.

      12             This is my story.

      13             Who will be held accountable?

      14             Why wasn't I notified of COVID patients

      15      coming into the nursing home?

      16             I could have taken my mother home.

      17             Now the matriarch of our family is gone.  We

      18      were four generations.

      19             My mother will not be here for the next

      20      family celebration.

      21             She will not get to meet her new

      22      great-grandchildren.

      23             A tremendous void was left in our lives.

      24             A bad, a very bad, decision was made.

      25             How could you send COVID patients into a









































                                                                   366
       1      facility that was home to the elderly with

       2      pre-existing conditions, knowing, if they got COVID,

       3      they would die?

       4             There were other facilities to send the COVID

       5      patients.  There was the "SS Comfort", there was the

       6      Javits Center, and there was a facility in Brooklyn

       7      that the mayor had.

       8             These facilities had room for COVID patients.

       9             Why weren't they sent there?

      10             The Cuomo administration has yet to admit any

      11      wrongdoing.

      12             They blamed the workers, they blamed the

      13      families of the residents, they blamed the CDC, and

      14      they blamed the federal government.

      15             The person to blame for the COVID deaths in

      16      the nursing home is Governor Cuomo.

      17             There was no law that said COVID patients had

      18      to be admitted to nursing homes.

      19             The governor of Florida did not allow COVID

      20      patients in nursing homes.

      21             Governor Cuomo did not follow sound,

      22      science-based federal guidelines, and he made a

      23      grave mistake.

      24             In addition, he signed the bill to protect

      25      the owners of the nursing homes.









































                                                                   367
       1             Governor Cuomo said, his father told him, if

       2      he made a mistake, he should own up to it.

       3             Well, Governor Cuomo, own up to it.

       4             And thank you very much for your time.

       5             I appreciate it.

       6             SENATOR RIVERA:  Thank you, Ms. Solowitz.

       7             We're going to -- unfortunately, we lost

       8      Ms. Alexa Rivera.

       9             If she comes back onto the feed, we will

      10      allow her to testify.

      11             For the moment, we will move on to questions,

      12      which will be led off by the Senate, recognizing

      13      Senator Skoufis for 5 minutes.

      14             SENATOR SKOUFIS:  Thank you very much,

      15      Mr. Chairman.

      16             And everyone who spoke, first and foremost,

      17      please accept by deepest condolences.

      18             You know, the grief was palpable at times,

      19      and I can't imagine what you've all personally lived

      20      through, these nightmares.

      21             But I thank you, and I think we all thank

      22      you, for your service, your public service, in

      23      participating and sharing your stories, and,

      24      hopefully, trying to right this ship.

      25             You know, it's been my strong opinion for









































                                                                   368
       1      sometime that the department of health doesn't

       2      adequately scrutinize nursing home transactions when

       3      they take place, and, just as importantly, if not

       4      more importantly, doesn't adequately punish nursing

       5      homes with substantial violations.

       6             For many facilities, and I know this in

       7      working with family members and employees in

       8      the districts I represent, which includes

       9      North Rockland, Orange, and part of Sullivan --

      10      Ms. Solowitz, you're a constituent -- I've worked

      11      with many family members in fighting for some of

      12      these issues pre-COVID.

      13             I know that, for many facilities, these fines

      14      are just the cost of doing business.

      15             And so, first, Ms. Solowitz, let me --

      16      actually before I get to my question, make a

      17      statement, and that is, I intend to follow up with

      18      you after this hearing.

      19             What you suggested and raised about what

      20      happened in the nursing home itself, COVID patients

      21      were not separated from the rest of the population;

      22      a complete lack of staffing; effectively, taking the

      23      phone off the hook, I want to work with you to make

      24      sure that the nursing home, which I believe is

      25      The Willows in Suffern, is held accountable for the









































                                                                   369
       1      things that you described.

       2             But I want to ask you:

       3             It's my understanding that, in just the past

       4      few years, that particular nursing home,

       5      The Willows, had 41 violations at their facility,

       6      including failing to have proper infection-control

       7      procedures; yet from these 41 violations, exactly

       8      zero enforcement actions by the department of health

       9      took place.

      10             In fact, the department of health didn't

      11      issue a single action over the past 10 years against

      12      The Willows.

      13             And so my question to you is:

      14             What would be your message, in light of what

      15      you have now lived through this nightmare, and

      16      what's happened at the nursing home, not just to

      17      you, but over these years?

      18             What would be your message to the department

      19      of health in dealing with -- better dealing with

      20      facilities like The Willows who have treated

      21      residents this way?

      22             LENORE SOLOWITZ:  I think there has to be a

      23      closer relationship between the State and the

      24      nursing homes.

      25             The State comes in once a year.  I've seen









































                                                                   370
       1      them; they're working in a room, they're doing

       2      paperwork.

       3             And I have not yet been approached by a state

       4      worker to ask me if anything was wrong.

       5             I'm always there, and I've seen horrible

       6      things going on.

       7             I've seen people crying, and they ignore them

       8      and they walk through.

       9             If I wasn't there to speak for my mother, my

      10      mother would be lying in the bed, nobody would come

      11      in.

      12             And there's so many different things.

      13             She rings the bell, you need an aide to come

      14      in.

      15             Okay, another aide comes and turns the bell

      16      off.  They don't want to be bothered.

      17             So you're laying there again, you try to ring

      18      your bell again.

      19             And they have a shortage of staff during the

      20      week.  It's really very bad.

      21             On the weekends it's absolutely terrible

      22      because there's like nobody there.

      23             They have a long hallway that's supposed to

      24      be monitored.

      25             There is times, there is nobody there,









































                                                                   371
       1      there's nobody outside.  And you have people

       2      screaming, "Help, help, nurse, nurse," and nobody is

       3      coming.  Either they're in the lunchroom or they're

       4      someplace else.

       5             And as far as the phone goes, I cannot tell

       6      you how many times I have called, and it rings and

       7      rings and rings, and nobody answers.

       8             And I want to find out how my mother is,

       9      I just don't know.

      10             As I said, I started one night calling at

      11      9 p.m.  I didn't get through till 2 a.m., till

      12      somebody actually answered the phone, and I asked if

      13      I could speak to the nurse to check on her.

      14             And it's just been a horror show the entire

      15      time that she's been in there.

      16             She also has allergies to food.

      17             She gets the food that has the allergies that

      18      she's allergic to.

      19             And the staff in the kitchen cannot read

      20      English, so you just get anything, and you don't do

      21      not even get the food you ordered because they just

      22      put anything on there.

      23             There is such a list of things that I can

      24      tell you, that I just really can't go into now, but

      25      I do intend to speak to you after.









































                                                                   372
       1             And when I get all my thoughts together,

       2      I will tell exactly all the problems that I've had

       3      while my mother was in the nursing home.

       4             SENATOR SKOUFIS:  Okay, thank you, and I look

       5      forward to that.

       6             I've run out of time, but I would just point

       7      out, Vivian, I know that your mother passed away in

       8      a nursing home that was cited 32 times over the past

       9      few years, and, again, zero enforcement actions by

      10      the department of health.

      11             If at some point later in this hearing -- my

      12      time is out -- you find it appropriate to speak to

      13      that, please do.

      14             Thank you.

      15             SENATOR RIVERA:  Thank you, Senator.

      16             Assembly.

      17             ASSEMBLYMEMBER BRONSON:  Yes, we will

      18      recognize Assemblymember Kevin Byrne for a period of

      19      5 minutes.

      20             ASSEMBLYMEMBER BYRNE:  Thank you.

      21             And allow me to echo my colleague's remarks,

      22      just extending our heartfelt condolences to all of

      23      your families for what you have gone through.

      24             I had a few other questions for our first

      25      witness that I didn't get to, because it was a









































                                                                   373
       1      little briefer than many of us would have liked.

       2             So I'm just going to pose some of those

       3      questions to you, to see if you have any thoughts.

       4             I believe it was Mrs. Webster mentioned some

       5      of the issues at the facility where you lost your

       6      mother.

       7             Have you heard from nursing staff, or any

       8      other residents, or through your loved ones, about

       9      the possibility of commingling of positive COVID

      10      patients with other residents?

      11             KATHLEEN WEBSTER:  Let me stop you there.

      12             While I did lose my mother in a nursing home

      13      quite sometime ago, I don't think I'm the person

      14      you're trying to talk to.  So...

      15             ASSEMBLYMEMBER BYRNE:  I mixed up the people

      16      that were speaking earlier.

      17             So I can ask that in generic.

      18             There was comments made about a nurse, with

      19      masks, not getting PPE.

      20             Have there been any other remarks from any

      21      of -- from you speaking with residents?

      22             No?

      23             VIVIAN RIVERA-ZAYAS:  We had a nurse say that

      24      she was using her mask for the entire week; the same

      25      mask for the entire week.









































                                                                   374
       1             ASSEMBLYMEMBER BYRNE:  Okay.

       2             All right, then I may have misheard part of

       3      that testimony.

       4             Another question I have:

       5             Most of you have been able -- were able to --

       6      well, actually, were you able to follow the

       7      testimony earlier in this hearing from the health

       8      commissioner?

       9             OFF-SCREEN SPEAKER:  Yes.

      10             OFF-SCREEN SPEAKER:  Yes.

      11             ASSEMBLYMEMBER BYRNE:  Okay.

      12             Well, Grace, I believe, I hope you don't mind

      13      me calling you Grace, Ms. Colucci --

      14             GRACE COLUCCI:  That's fine.

      15             ASSEMBLYMEMBER BYRNE:  -- I'd like to get

      16      your feedback on what you were able to hear from the

      17      commissioner, as far as our State's involvement with

      18      the handling of the nursing homes, if you had any

      19      comments.

      20             GRACE COLUCCI:  Well, I felt that he did not

      21      give you adequate answers to your questions while

      22      having several weeks to prepare for this hearing.

      23             I think that the nursing homes were

      24      overwrought with too many patients that they weren't

      25      expecting.









































                                                                   375
       1             And with the lack of having family there to

       2      be able to participate in the care of their loved

       3      ones, they were even at a further disadvantage.

       4             The nursing homes are used to having family

       5      members there to feed and take care of their loved

       6      ones.

       7             So I think he was evasive in a lot of

       8      answers, and to not provide you with the tools that

       9      you will need to make a good investigation.

      10             ASSEMBLYMEMBER BYRNE:  Well, thank you.

      11             My hope is that, somehow, we get him to come

      12      to the next hearing on August 10th.

      13             But, I appreciate your remarks, Grace, and

      14      all the witnesses in this round.

      15             And I will give the rest of my time to,

      16      I believe it's Vivian Rivera-Zayas, to speak to the

      17      point that Senator Skoufis asked.

      18             You've got my two minutes.

      19             He was talking about personal stories.

      20             So you can -- if there was a -- if there was

      21      a -- I think there was something that the senator

      22      mentioned, if there was time, you could use my time,

      23      if there's a personal story that you were --

      24      affected you and your family that you'd like to

      25      share, you can use my time.









































                                                                   376
       1             VIVIAN RIVERA-ZAYAS:  My mother was -- I'm

       2      sorry, I'm hearing -- I don't know if someone's

       3      trying to ask a question.

       4             My mother was in a nursing home, which was

       5      only supposed to be for a very short time.

       6             From what I understand, once she became ill,

       7      like one of the other women here said, all I heard

       8      was my mother's moans and groans of the pain and

       9      discomfort she was in.

      10             Yet, every single time that I called, on a

      11      daily basis, she was -- I was reassured that she was

      12      okay.

      13             I kept asking what was going on, why she

      14      couldn't talk.  And they were telling me she doesn't

      15      have a fever, her vitals are okay.

      16             So when all of this happened, we were blown

      17      away by the fact that she was -- we didn't know she

      18      had contracted COVID.

      19             We were in a -- there's a record in her chart

      20      saying she had it.

      21             No one told us, so we were completely

      22      off-guard.

      23             When -- on the day she was supposed to go

      24      home, we find that she can't even speak on the

      25      phone.









































                                                                   377
       1             They downplayed it to the point where they

       2      asked if she was a smoker.

       3             She was having trouble breathing.

       4             The director said he had no idea why she was

       5      having trouble breathing.

       6             She waited for about four hours for an X-ray,

       7      when they didn't even put in it as an emergency.

       8      And several hours later, when they waited for the

       9      results, she went into respiratory distress.  And

      10      she was, basically, on a ventilator by the evening.

      11             So we were wondering why they were going to

      12      discharge her if she was well enough to go home,

      13      according to them that morning, because we were

      14      arranging for her to go home; yet she was on a

      15      ventilator by the evening.

      16             So there's something really, really wrong

      17      here on how they were trying to discharge

      18      COVID-positive patients in order for them not to

      19      have died on their watch and increase their tally.

      20             So it's criminal that you discharge a sick

      21      patient, with COVID no less, without telling the

      22      family.

      23             ASSEMBLYMEMBER BYRNE:  Thank you, Vivian.

      24             I appreciate your remarks.

      25             VIVIAN RIVERA-ZAYAS:  You're welcome.









































                                                                   378
       1             ASSEMBLYMEMBER BYRNE:  And, again, my

       2      condolences.

       3             VIVIAN RIVERA-ZAYAS:  Thank you.

       4             SENATOR RIVERA:  Thank you, Assemblymember.

       5             We will follow up by Senator May, recognized

       6      for 5 minutes.

       7             SENATOR MAY:  Thank you.

       8             And my heart goes out to all of you who lost

       9      family members.  It's just heartbreaking.

      10             I wanted to ask if any of you had contact

      11      with an ombudsperson in that nursing home?  If you

      12      were aware of that program, if that was something

      13      that was available to you, and was helpful to you?

      14             Whoop, your mute.

      15             LENORE SOLOWITZ:  I was not aware that there

      16      was such a program.  I had absolutely no idea.

      17             I, basically, had to take care of everything

      18      myself.  Whenever there was a problem, I would go

      19      in.  I would talk to the nursing director, to the

      20      administrator.

      21             I, basically, was the advocate for my mother.

      22             SENATOR MAY:  Sounds like you're kind of a

      23      de facto ombudsperson for other people too in that

      24      [indiscernible].

      25             LENORE SOLOWITZ:  I probably could be, could









































                                                                   379
       1      be.

       2             But, you know, there are so many things that

       3      have to be done with these nursing homes.

       4             I mean, in the instance for my mother, there

       5      was one nurse that she was having a problem with.

       6             So my mother, as I said, she was 98, but she

       7      was totally with it, and she would count her pills.

       8             She knew if they gave her more or if they

       9      gave her less.  And she would count them.

      10             There were 21 pills coming in the morning,

      11      and she said to this nurse, there's a pill missing

      12      here.

      13             She insisted there wasn't a pill missing.

      14             So there was a problem with that.

      15             Then she overmedicated her and gave her more

      16      pills, and she said, I'm not supposed to get this.

      17      I've already had this.

      18             The nurse insisted that she got that.

      19             This is like a child.  Here you're taking

      20      care of somebody, and you're playing around with the

      21      pills.

      22             So that's one thing that really bothered me.

      23             Then there was a nurse that wrote down that

      24      she gave the medicine, and never gave the medicine.

      25             So, to me, that's -- you should be dismissed,









































                                                                   380
       1      you should be fired.  Is all they did was, put her

       2      to the other side of the building.

       3             Whenever there was complaint about somebody,

       4      and even if the State came in, they never fired the

       5      person.  They went to the other side of the

       6      building.

       7             So, here, there's incompetent people.

       8      Whatever they did on the other side of the building,

       9      they're just going to do over there.

      10             So there was -- there was a lot -- there was

      11      a lot of issues, really.

      12             And you really needed to have somebody that

      13      was there to speak for you; otherwise, you were

      14      really out luck.  You just laid in the bed.  You

      15      could cry, you could scream; nobody was coming in

      16      for you.

      17             And I've stood in my mother's room and heard

      18      so many people crying for help, and there was just

      19      nothing to do, and nobody came.

      20             SENATOR MAY:  Thank you.

      21             Anybody else?

      22             Vivian, did you have anything [inaudible] --

      23             VIVIAN RIVERA-ZAYAS:  My mother had a call

      24      bell, but, my sister and I went every single day to

      25      see my mother.









































                                                                   381
       1             It was -- I actually really blame the

       2      shutdowns as a contributing factor in her passing

       3      away because she was in good health.  She only had a

       4      knee surgery.

       5             Went in there because she had an abscess in

       6      her thigh.  Once they drained it and kept her on

       7      antibiotics at the hospital, she was transferred to

       8      Our Lady of Consolation in West Islip, and was

       9      supposed to be there for extra therapy, and which we

      10      welcomed at the time.

      11             Yet, when we were trying to get her out of

      12      there, I was not getting a call, they were not

      13      responding.

      14             Multiple voice mails later, I called the

      15      social worker.  She would bounce me to the case

      16      manager.

      17             And I had to ask her, What is your role as a

      18      social worker, if I call you and you keep

      19      transferring me to other people?

      20             Once we got -- we kept pressuring them, and

      21      they saw my mother was terribly homesick, I believe

      22      that they were trying to get her out of there before

      23      she contracted the virus, but it was too late.  She

      24      got it, she was transferred out.

      25             And when we found out, we were wondering why,









































                                                                   382
       1      if they've called me for minor issues, they did not

       2      call me when they knew, in fact, according to her

       3      charts, that she was exposed, and that there was

       4      some kind examine, like a droplet precautions exam,

       5      done on her.

       6             They've called me for sillier things; yet,

       7      for this, that was pretty deadly and very important,

       8      they did not call me.

       9             SENATOR MAY:  Nobody ever told you you had

      10      the right to speak to an independent ombudsperson?

      11             VIVIAN RIVERA-ZAYAS:  They never told me.

      12             And once my mother passed away, it seems like

      13      you have -- there's no follow up from them.

      14             They wouldn't even give me any empathy when

      15      I called to find out about my mother's belongings.

      16      They basically said, oh, you need housekeeping.

      17             Transferred me immediately, with no sense of

      18      empathy.  And I was so hurt, because I'm thinking,

      19      my mother was in your care for three months, two

      20      months more than what she was supposed to be, and

      21      you didn't even give me, "And I'm sorry," or, "I'm

      22      sorry for your loss."

      23             It's a terrible system, and it needs to be

      24      reformed.

      25             SENATOR MAY:  Okay.









































                                                                   383
       1             Thank you so much.

       2             And I just want to thank Ms. Webster, too,

       3      for your written testimony.

       4             It's very helpful to know that there are not

       5      consumer advocates on the department of health's

       6      public health council.

       7             We will look into that as well.

       8             KATHLEEN WEBSTER:  There's one and two on the

       9      way, but out of 24.

      10             SENATOR MAY:  All right.

      11             Thank you.

      12             SENATOR RIVERA:  Thank you, Senator.

      13             Assembly.

      14             ASSEMBLYMEMBER BRONSON:  Yes, next we'll go

      15      to Chair Gottfried for 5 minutes, please.

      16             ASSEMBLYMEMBER GOTTFRIED:  Okay.  Thank you.

      17             Well, first of all, I want to join my

      18      colleagues in expressing our condolences to all of

      19      you who testified about the loss of your loved ones

      20      of your family.

      21             It's horrendous to think about.

      22             I think -- I think one thing that is clear,

      23      though, is that, certainly, based on the -- some of

      24      the research that Mr. Skoufis did, that these

      25      facilities were bad news to begin with long before









































                                                                   384
       1      the COVID virus even evolved.

       2             But I just want to say a couple of things to

       3      Ms. Webster.

       4             I want to thank you for your testimony, and

       5      the ownership and dealings and for-profit are really

       6      important.

       7             And we've got some legislation in this area,

       8      and we intend to work on a lot more of it.

       9             I'm sure you heard Richard Mollot's testimony

      10      on that score.

      11             We'll be working with him, and we'd love to

      12      have your assistance in that as well.

      13             Just one more comment on, coming off the

      14      family members who talked about never having been

      15      told about the existence of the long-term-care

      16      ombudsman program, we've been calling on the

      17      department, because of the lockdown on visitation

      18      and the long-term-care ombudsmen people not being

      19      able to enter facilities, that facilities ought to

      20      be required to periodically, regularly, notify every

      21      resident and every family member about the

      22      availability of the ombudsman program; what it does,

      23      and how to reach it.

      24             Because, even in the best of times, it

      25      appears, people have very -- many people have little









































                                                                   385
       1      or no knowledge of it, and that's just an outrage.

       2             Whether it would have saved the lives of your

       3      family members, we can't know, but it could have

       4      made a difference.

       5             So, that's all I wanted to say.

       6             SENATOR RIVERA:  Thank you, Assemblymember.

       7             Follow up with Senator O'Mara, recognized for

       8      5 minutes.

       9             SENATOR O'MARA:  Thank you, Chairman.

      10             Thank you, ladies, for your courage and your

      11      fortitude in telling your stories here today.

      12             My deepest sympathies to each of you for your

      13      loss, and thank you for participating today.

      14             I wanted to follow up:

      15             I'm equally appalled about the lack of

      16      information regarding the ombudsman program, that

      17      that's not getting out to family members, to help

      18      and keep track of what's going on in these homes

      19      when, certainly, most family, you know, cannot be

      20      there extensively enough to monitor day-in and

      21      day-out activities of what's going on.

      22             And the ombudsman program, even though

      23      underfunded, does do some great work.

      24             Throughout this process -- and this is to one

      25      of you, or all of you, actually -- did you ever









































                                                                   386
       1      receive -- you got no notice on the ombudsman.

       2             Did you ever receive any information or see

       3      anything posted in any of the nursing homes on how

       4      to make a complaint to the department of health,

       5      while you were visiting loved ones there?

       6             No one, I take it?

       7             VIVIAN RIVERA-ZAYAS:  No, I don't recall

       8      seeing any information.  No.

       9             OFF-SCREEN SPEAKER:  Neither did I.

      10             SENATOR O'MARA:  Did any one of you ever

      11      reach out to the department of health or the

      12      governor's office to make a complaint?

      13             VIVIAN RIVERA-ZAYAS:  After my mother passed,

      14      yes.

      15             SENATOR O'MARA:  After she passed.

      16             And did you receive a response?

      17             VIVIAN RIVERA-ZAYAS:  No.

      18             SENATOR O'MARA:  Anyone else?

      19             GRACE COLUCCI:  No, we did not reach out to

      20      the governor's office.

      21             LENORE SOLOWITZ:  No, did I not reach out to

      22      the governor's office, either.

      23             SENATOR O'MARA:  Okay.

      24             The -- I guess from your perspectives, what

      25      would you prioritize as the most important









































                                                                   387
       1      improvement that you would like to see in the

       2      nursing homes, from what you've witnessed visiting

       3      your loved one, up until they passed?

       4             LENORE SOLOWITZ:  If I had to tell you

       5      everything that was there, we would be here until

       6      tomorrow morning.

       7             There are so many things that you see going

       8      on there, that shouldn't be going on.

       9             It's with medicine.  They don't order the

      10      medicine because, the last person, there's five

      11      pills, should order the medicine.

      12             They don't.  They leave it for the next

      13      person.

      14             So what happens?

      15             You're due to get your medicine the next day,

      16      and they don't have it.  So now you go a day without

      17      your medicine.

      18             And, luckily, if they come the next day, you

      19      get it; otherwise, you're two days without your

      20      medicine.

      21             That's one of the things that really used to

      22      annoy me, that they just didn't have the pills.

      23      They just didn't want to be bothered.

      24             There was a lot of things they didn't want to

      25      be bothered with.









































                                                                   388
       1             And it -- I -- (suddenly goes out of screen).

       2             GRACE COLUCCI:  Hi.

       3             If I could speak, I think that a bill -- like

       4      I mentioned during my statement, a seniors bill of

       5      rights would be very helpful.

       6             It would be informative, where families and

       7      patients could be given information on what they

       8      have as rights.

       9             The communication between the families and

      10      the nursing homes is especially important to

      11      improve.

      12             My family was discouraged from calling and

      13      asking about my father's care because they were

      14      understaffed.

      15             And this facility happens to be something

      16      with a very good reputation, but, it didn't help.

      17             VIVIAN RIVERA-ZAYAS:  I would say that, in

      18      the future, we just cannot have the shutdowns that

      19      we have.

      20             I was my mother's caregiver.  I knew her

      21      better than all of the nurses.

      22             And since I saw her, as soon as I saw

      23      anything wrong with my mother, I was able to address

      24      it, and have it addressed.

      25             When the shutdown happened, then my eyes were









































                                                                   389
       1      removed.  I was counting and relying fully on these

       2      nurses.  But all they kept telling me was that my

       3      mother was fine.

       4             So they are the professionals, they're

       5      watching my mother.  I'm thinking and believing,

       6      wholeheartedly, that they know what they're talking

       7      about.

       8             But I knew that something was really wrong.

       9             And when a previous occasion, when she

      10      actually had a UTI, I kept telling them, listen,

      11      something's wrong with my mother.  Can we test her

      12      for UTI?

      13             And they said no.

      14             The doctor refused an exam, a urine test,

      15      which I offered to pay for if I had to.

      16             And they told me no.

      17             I insisted, and two days later they performed

      18      the test.  And, in fact, it was positive, and they

      19      put her on an antibiotic.

      20             This is something that the eyes of the family

      21      members are extremely important on these loved ones.

      22      We know them best, we can advocate for them the

      23      best.

      24             GRACE COLUCCI:  And I want to add that, if we

      25      can suit up and go to the food store or a liquor









































                                                                   390
       1      store, or anything like that, we should be able to

       2      take the same precautions to be with our loved one.

       3             It's not like they'll be going throughout the

       4      nursing home.  We will be in the room with our

       5      family member and not spreading any kind of illness.

       6             And it's not like there's -- this has been

       7      the first time that there's been some kind of

       8      pandemic.

       9             There was the S1N1 [sic], and the flu every

      10      year, that seniors are always the first to be the

      11      most vulnerable.

      12             And the nursing homes were totally

      13      unprepared.

      14             OFF-SCREEN SPEAKER:  May I just say --

      15             SENATOR O'MARA:  Well, thank you all very

      16      much.

      17             Again, I'm out of time.

      18             I do want to credit Ranking Member Sue Serino

      19      for giving me the heads-up on those specific

      20      questions, as she had run out of time.

      21             So, thank you, Chairman.

      22             SENATOR RIVERA:  Thank you.

      23             Thank you, Senator.

      24             Assembly.

      25             ASSEMBLYMEMBER BRONSON:  Yes, first let me









































                                                                   391
       1      echo the sentiments of my colleagues in our

       2      condolences for the loss of your loved ones.

       3             I oftentimes tell the constituents that it's

       4      so vitally important for us as policymakers to hear

       5      the real-life stories.

       6             And as hard as it is for you to share those

       7      stories, I want you to know it's very important for

       8      to us hear the experiences that you've had, and to

       9      hear what your recommendations are, in us moving

      10      forward as we try to develop policies to prevent

      11      harm to our loved ones who are in nursing homes or

      12      other care facilities.

      13             So, thank you very much.

      14             And, Kathleen, thank you for your information

      15      on the issue of for-profit organizations.

      16             I look forward to reading that in more

      17      detail.

      18             We will now move to the next questioner who

      19      is Assemblyman Ron Kim.

      20             We recognize Ron for 3 minutes.

      21             ASSEMBLYMEMBER KIM:  Thank you,

      22      Chairman Bronson.

      23             So I believe this is perhaps one of the

      24      most -- perhaps the most important panel of the

      25      hearing.









































                                                                   392
       1             I'm a firm believer that, when we design

       2      policies or solutions, we should center around --

       3      all of it around the people who are hurting the

       4      most, who are mostly, you know, impacted and

       5      traumatized in this time.

       6             And we haven't done that until this moment.

       7             So I thank the Assembly and the Senate

       8      colleagues for putting this forward.

       9             I think a previous speaker already asked this

      10      question, but want to clarify:

      11             Has this administration or the department of

      12      health reached out to any of you to talk about

      13      solutions, policies, or how the State can do a

      14      better job at protecting and strengthening the

      15      rights of nursing home residents?

      16             VIVIAN RIVERA-ZAYAS:  No, not at all.

      17             We have called several times, and people and

      18      the members of the Voices for Seniors group families

      19      impacted have called on multiple occasions.

      20             We get voice mail.  We get tossed around here

      21      and there.

      22             And, at the end, some have even claimed,

      23      they'll take our number to call us back, and we have

      24      received no return -- no callbacks.

      25             ASSEMBLYMEMBER KIM:  Okay.









































                                                                   393
       1             Instead of handing out an early blanket legal

       2      immunity, or "get out of jail free" cards, for the

       3      nursing home CEOs or shareholders or the

       4      corporations behind them, do you think we would have

       5      had a different outcome if the State gave them an

       6      early blank check for PPE and staffing, and held

       7      them legally accountable to save people's lives?

       8             VIVIAN RIVERA-ZAYAS:  Many facilities lack

       9      the adequate infectious-disease control protocols

      10      for several times.

      11             I think Mr. Skoufis had asked me about this

      12      very issue.

      13             My mother's facility was cited 31 times in

      14      the period of four years, 2016 to 2020.

      15             The fact that they had been cited and,

      16      obviously, there was no punitive damages that made

      17      them change their behavior.

      18             And this is -- this includes not just COVID;

      19      it's, you know, Zika, and the flu, and any other

      20      infectious disease, they have to have a plan in

      21      place before these things come into their

      22      facilities.

      23             So they were inadequately prepared

      24      beforehand.

      25             Could it have helped to have the additional









































                                                                   394
       1      supplies?  Of course.

       2             But the reality is, that this is something

       3      that they should already show that they lack

       4      beforehand.

       5             KATHLEEN WEBSTER:  I just want -- can I just

       6      add that -- I just want to add that, you know, the

       7      studies from Connecticut showed that, if you had

       8      more registered nurses on staff, you had fewer

       9      deaths.

      10             That was the -- that was the clear study.

      11             So, you know, the fact that these conditions

      12      existed beforehand, I mean, I slept on a chair in my

      13      mother's room for six weeks, to get her cured of a

      14      bad bedsore.

      15             ASSEMBLYMEMBER KIM:  Thank you.

      16             KATHLEEN WEBSTER:  Just in defense of the

      17      staff, I just do want to say that, undertrained,

      18      underpaid, no sick days, no paid time off, what did

      19      we think was going to happen?

      20             So, you know, if we could take the profits

      21      off of the CEO's salary and put them more towards

      22      the staffing, might help.

      23             ASSEMBLYMEMBER KIM:  Kathleen, my time is up,

      24      but, one quick question.

      25             Victims compensation fund, do you think









































                                                                   395
       1      that's a good first step of retroactive justice: yes

       2      or no?

       3             Thumbs up?

       4             KATHLEEN WEBSTER:  Yes.

       5             VIVIAN RIVERA-ZAYAS:  Yes.

       6             ASSEMBLYMEMBER KIM:  Thank you.

       7             LENORE SOLOWITZ:  Definitely.

       8             ASSEMBLYMEMBER KIM:  Thank you,

       9      Assemblymember.

      10             ASSEMBLYMEMBER BRONSON:  Thank you.

      11             It looks like we have next up,

      12      Assemblymember Doug Smith, for 3 minutes.

      13             ASSEMBLYMEMBER SMITH:  Thank you so much, and

      14      thank you to the chairs for holding this.

      15             And thank you so much for the families who

      16      are coming here to testify today.

      17             I think the families will probably join many

      18      of us in being a bit dismayed at what we heard from

      19      the health commissioner earlier today.

      20             In my opinion, he was really dodging and

      21      deflecting to a new level.

      22             But I'm deeply concerned that we were not all

      23      able to ask him questions that many of us had

      24      concerning this.

      25             So I would ask at this time, and we'll start









































                                                                   396
       1      with Grace, and then Vivian, and go to everyone,

       2      because I'm greatly hopeful that, after the fact

       3      that the commissioner left us, that he'll,

       4      hopefully, clear his schedule and join on us

       5      August 10th.

       6             I want to know, I have questions I would have

       7      liked to have asked him on behalf of the people

       8      I represent.

       9             But you represent families that have been

      10      directly impacted.

      11             What question would you ask

      12      Commissioner Zucker if you had the opportunity, to

      13      the families?

      14             GRACE COLUCCI:  That's -- where do I start?

      15             I would ask him:  How come they, one,

      16      delayed --

      17             I'm sorry.

      18             Hello?  Do you see me now?

      19             Okay.

      20             -- I would ask him why they delayed in using,

      21      actually -- not even delayed -- why they didn't use

      22      the "Comfort" and the Javits Center and other

      23      facilities that were assembled to handle COVID

      24      patients?

      25             And why were the nursing homes actually, even









































                                                                   397
       1      though they weren't made to take the COVID patients,

       2      but they, literally, they're hurting financially,

       3      and they did need to take the patients?

       4             I would ask him that.

       5             ASSEMBLYMEMBER SMITH:  I mean, Grace, would

       6      you -- sorry to cut off -- would you agree, though,

       7      because the commissioner said that.

       8             He said the State didn't force them to take

       9      COVID patients.

      10             However, the order said, "no resident shall

      11      be denied."

      12             GRACE COLUCCI:  Correct.  So it's just a play

      13      on words.

      14             ASSEMBLYMEMBER SMITH:  So, I mean, in a way,

      15      I would read that, the nursing homes did say that

      16      they felt obligated to take these COVID-positive

      17      patients.

      18             GRACE COLUCCI:  I agree, 100 percent.

      19             I feel that they felt that they had no

      20      choice.

      21             ASSEMBLYMEMBER SMITH:  Thank you, Grace.

      22             GRACE COLUCCI:  You're welcome.

      23             ASSEMBLYMEMBER SMITH:  And maybe, Vivian, if

      24      we want to add that to.  We only have about a

      25      minute.









































                                                                   398
       1             VIVIAN RIVERA-ZAYAS:  I would ask Mr. Zucker

       2      about how well it is to make decisions for your own

       3      mother, whom I believe he mentioned his mother is at

       4      home, and that they had made that decision; yet

       5      families were denied the right to make decisions on

       6      our own parents' behalf.

       7             I was not given the option to discharge my

       8      mother before the shutdown.

       9             I was not given the opportunity to make

      10      decisions for her because I was not told what was

      11      going on.

      12             So, you know, they took my rights away; yet

      13      he continues to have his with his own mother.

      14             ASSEMBLYMEMBER SMITH:  Thank you so much.

      15             I don't know if you want to add.

      16             GRACE COLUCCI:  Can I add one last thing?

      17             My mother had said that, had she had known

      18      that she would not be able to take care of my father

      19      and feed him, she would never have put him in the

      20      nursing home.

      21             She would have taken him home instead rather

      22      than have him do his rehab there.

      23             ASSEMBLYMEMBER SMITH:  Well, our thoughts and

      24      prayers are with you, and thank you for sharing your

      25      story with us.









































                                                                   399
       1             Thank you.

       2             OFF-SCREEN SPEAKER:  Thank you.

       3             SENATOR RIVERA:  Thank you, Assemblymember.

       4             I think we have one more.

       5             ASSEMBLYMEMBER BRONSON:  I believe we have

       6      one last questioner, Assemblymember Missy Miller,

       7      for 3 minutes.

       8             ASSEMBLYMEMBER MILLER:  Yes, thank you.

       9             I just -- I want to thank all of you from the

      10      bottom of my heart for coming out here and sharing

      11      your stories.

      12             I'm kind of glad it took this long to get my

      13      questions so I had a chance to compose myself after

      14      hearing all your testimonies.

      15             I keep hearing, you know, "their rights,"

      16      "the patients rights," you think that we need a

      17      senior's bill of rights.

      18             But what we're overlooking is that we have a

      19      Patient's Bill of Rights, and they were violated,

      20      and they were violated under this pandemic, you

      21      know, the governor's executive power during a

      22      pandemic.

      23             But he stripped you all of your rights, and

      24      isolated the residents in their rooms, to be

      25      ignored, and to be neglected, and didn't let, not









































                                                                   400
       1      only the family members, but even the ombudsmen, if

       2      one knew to look or ask for one.

       3             So, you know, that is -- it's just even more

       4      heartbreaking, the system of failure that went from

       5      step to step.

       6             And my biggest regret with Dr. Zucker leaving

       7      early today, is that he does not hear these

       8      testimonies; he is not hearing what we just heard.

       9             And [indiscernible] members, that's what

      10      makes policy change.

      11             Mr. Gottfried can attest to that.  We did

      12      that years ago with medical marijuana.

      13             Seeing and talking to patients, and talking

      14      to families, and hearing what their lives are like,

      15      that's what makes us want to change policy.

      16             And that's what we need to get through to the

      17      department of health and to the governor's office.

      18             So thank you for sharing.

      19             OFF-SCREEN SPEAKER:  Well, thank you.

      20             SENATOR RIVERA:  All righty.

      21             We -- that is the last questioner, I believe?

      22             Okay.

      23             So we're going to take -- we're going to take

      24      a short break so that folks can actually get some

      25      coffee, perhaps, as we've got five more to go.









































                                                                   401
       1             I believe we can get this done.

       2             We'll give it 10 minutes, we'll come right

       3      back.

       4             VIVIAN RIVERA-ZAYAS:  Thank you.

       5             GRACE COLUCCI:  Thank you very much.

       6             SENATOR RIVERA:  Thank you for all of your

       7      testimony.

       8             And please be in contact with the senators,

       9      particularly Senator Skoufis and others who have

      10      said that they would like to get some more of your

      11      stories, so they can really think through what we

      12      could do legislatively to respond to this concern.

      13             GRACE COLUCCI:  Thank you.

      14             VIVIAN RIVERA-ZAYAS:  Thank you, we will.

      15             I appreciate it.

      16             GRACE COLUCCI:  Thank you.

      17             SENATOR RIVERA:  10 minutes.

      18                (A recess commenced.)

      19                (The hearing resumed.)

      20             SENATOR RIVERA:  Welcome back, folks.  Hope

      21      that you had some nice -- nice coffee.

      22             We're going to power through right to the

      23      end.

      24             Next panel, we are joined by:

      25             Judy Johnson, registered nurse, and a member









































                                                                   402
       1      of the New York State Nurses Association;

       2             Milly Silva, executive vice president of

       3      1199 SEIU Nursing Home Division;

       4             Eric Fogle, an 1199 member, and activities

       5      aide at the Holliswood Center;

       6             Tyresse Byers, 1199 member -- excuse me --

       7      certified nursing assistant at the Sarah Neumann

       8      Nursing Home;

       9             And, Nicole Whittaker, 1199 member, certified

      10      nursing assistant at the Berkshire Nursing and Rehab

      11      Facility.

      12             Monsieur Gottfried.

      13             ASSEMBLYMEMBER GOTTFRIED:  Do you all swear

      14      or affirm that the testimony you're about to give is

      15      true?

      16             JUDY JOHNSON:  Yes.

      17             MILLY SILVA:  Yes.

      18             TYRESSE BYERS:  Yes.

      19             NICOLE WHITTAKER:  Yes.

      20             ASSEMBLYMEMBER GOTTFRIED:  Okay, fire away.

      21             JUDY JOHNSON:  Hi.

      22             Good evening to the joint Assembly and Senate

      23      legislative hearing.

      24             This testimony is on behalf of the New York

      25      State Nurses Association.









































                                                                   403
       1             My name is Judy Johnson.

       2             I'm a registered nurse employed at Rockland

       3      Nursing home, which is part of Kingsbrook Jewish

       4      Medical Center in Brooklyn.

       5             I am here today on behalf of the New York

       6      State Nurses Association to relay our concerns about

       7      the impact of COVID on long-term-care facilities and

       8      problems that we observed during the first surge in

       9      March and April.

      10             Rockland Nursing Home has about 466 beds, and

      11      includes an acute vent unit with 30 beds, an acute

      12      [indiscernible] unit with 34 beds, a pediatric unit,

      13      a rehab short-term unit, and several regular

      14      long-term-care nursing units.

      15             During the March and April surge, our nursing

      16      home was hit particularly hard, and many residents

      17      and patients were sickened or died.

      18             In addition, many of the direct-care staff,

      19      including nurses, were also exposed and sickened.

      20             In our experience, several longstanding

      21      issues in the long-term-care sector made the impact

      22      of the COVID-19 pandemic much worse than they should

      23      have been.

      24             First, nursing homes have, for many years,

      25      been understaffed.









































                                                                   404
       1             We simply did not have enough RNs or LPNs and

       2      aides to provide high levels of care in addressing

       3      infection-control problems that became acute during

       4      the surge period.

       5             I work on the most acute unit, caring for

       6      very sick people who are on chronic life-support

       7      vents, with 30 beds.

       8             Our unit used to be staffed with five RNs

       9      at all times.  But the ratio was recently worsened,

      10      with the RN staff [indiscernible] now including

      11      40 percent LPNs.

      12             A similar thing happened on the

      13      [indiscernible] units, which used to have four RNs

      14      for 34 beds, but also reduced the RNs by adding up

      15      to 40 percent LPNs.

      16             On the regular units the situation was even

      17      worse, and there were no RNs assigned to direct

      18      patient care.  The only RNs assigned to those

      19      units are the managers who don't do direct patient

      20      care.

      21             RNs and our LPN and aide colleagues all

      22      work hard, but reducing staff is not helpful for

      23      maintaining the quality of patient care.

      24             During the surge, this chronic understaffing

      25      caused atrocious situations in the nursing home.









































                                                                   405
       1             The short-staffing became even worse when a

       2      large percentage of the staff themselves became ill

       3      and could not report to work.

       4             At Rockland we finally got some help in the

       5      form of temporary nurses, but they did not arrive

       6      until May, long after the worst of the surge in

       7      April.

       8             A big problem in the spread of the virus

       9      among staff and patients was the shortage of PPE.

      10             We did not have enough N95 respirators and

      11      masks for the staff, and were forced to reuse the

      12      equipment for days and days.

      13             We also did not have enough PPE for the

      14      residents and patients to use.

      15             I think this contributed to the spread of the

      16      virus throughout the facility.

      17             Another problem that made things worse was

      18      the constantly changing guidances and protocols for

      19      infection control and the use of PPE.

      20             The CDC kept on changing its recommendation

      21      and the State just followed suit.

      22             A lot of the changes were related to the

      23      shortage of PPE rather than best practices to

      24      protect patients and staff.

      25             The lack of staff in the bad situation with









































                                                                   406
       1      PPE and the constantly changing protocols are, in

       2      many ways, the legacy of the constant pressure to

       3      cut costs because of reduced reimbursements from

       4      governments and private insurers.

       5             The nursing home industry is constantly being

       6      squeezed by these budget cuts.

       7             Pay is too low and that causes a lot of staff

       8      turnover.

       9             If staffing has already had -- has already --

      10      was already bad and funding was short, it should be

      11      no surprise to anybody that the pandemic had a

      12      devastating impact on our nursing homes around the

      13      state.

      14             To prepare for the resurgence of the virus in

      15      the fall, and for future pandemics, we need to

      16      properly fund our health-care system, including our

      17      nursing homes.

      18             We need to pay people more so that we don't

      19      have constant turnover of new staff who have to be

      20      trained to provide patient care.

      21             As part of addressing the staff

      22      [indiscernible] shortage, the State should implement

      23      minimum staffing requirements in all nursing homes.

      24      This would allow more stability and give us

      25      [indiscernible] improvement that will better allow









































                                                                   407
       1      us to respond to future surges.

       2             Finally, the State needs to implement more

       3      stringent and uniform infection-control standards

       4      and protocols that all long-term-care facilities

       5      have to comply with.

       6             This will protect both the staff and the

       7      patients.

       8             Thank you for the opportunity to present our

       9      concerns, and our written testimony will be admitted

      10      for the record.

      11             Thank you.

      12             SENATOR RIVERA:  Thank you, ma'am.

      13             I guess, Ms. Milly Silva.

      14             MILLY SILVA:  Good afternoon.

      15             My name is Milly Silva.  I'm an executive

      16      vice president of 1199 SEIU, United Healthcare

      17      Workers East, directing our nursing home division,

      18      which represents over 50,000 nursing home workers

      19      downstate.

      20             Our union also represents an additional

      21      15,000 nursing home workers in the Hudson Valley and

      22      upstate.

      23             I understand that you will hear from these

      24      members next Monday.

      25             Our members in nursing homes provide









































                                                                   408
       1      essential care to residents: helping them get in and

       2      out of bed, feeding, dressing, and bathing them.

       3             They do this work because they're committed

       4      to providing quality care for the residents who they

       5      get to know and love.  They do it despite many

       6      challenges, including high rates of injury, frequent

       7      understaffing, and, often, inadequate pay and

       8      benefits.

       9             Our members in nursing homes continue to love

      10      and care for the residents, and they did it that

      11      much more so during this pandemic under

      12      extraordinarily difficult conditions.

      13             Many of us saw it on television, we read of

      14      it in the newspapers, but nursing home staff faced

      15      it up close and personal.

      16             They saw large numbers of residents' deaths,

      17      overwhelmed morgues, and up to a third of the

      18      workers becoming ill, with resulting severe staffing

      19      shortages.

      20             As we know, workers died.

      21             And on behalf of 1199, we express our

      22      condolences to the family members who also lost

      23      loved ones during the pandemic at the nursing home.

      24             We want to thank the legislature for holding

      25      these hearings, to examine what happens in nursing









































                                                                   409
       1      homes during this pandemic, and, most importantly,

       2      to learn its lessons, so that this tragedy is never

       3      repeated.

       4             The decisions that individuals made, and the

       5      systems in place, or lacking, during the pandemic

       6      made a real difference in the safety of residents

       7      and staff.

       8             In a moment I will discuss those decisions,

       9      both positive and negative, and you will have my

      10      testimony -- written testimony as well for the

      11      record.

      12             I want to make one key point:

      13             The nursing home industry is not going to be

      14      the same after this pandemic.

      15             Resident census is lower, and it is unclear

      16      how quickly it will recover.

      17             Returning to the status quo pre-pandemic is

      18      impossible.  More than that, it is morally

      19      unacceptable.

      20             New York ranked 31st in the nation for

      21      nursing home quality, according to CMS surveys, and

      22      in the bottom 10 nationally for persistent pressure

      23      ulcers.

      24             Residents are only getting 2.38 hours of

      25      hands-on care per day, earning our state a "D" on









































                                                                   410
       1      the national scorecard.

       2             Nursing home caregivers are forced to work

       3      multiple jobs to make ends meet, leading to staff

       4      turnover and burnout.

       5             We can, and we must, do much, much better.

       6             We urge the administration and the

       7      legislature not to waste this moment, when there is

       8      more tension faced on the experience of vulnerable

       9      residents in the nursing homes than anytime in the

      10      recent memory.

      11             You must listen to the voices of those who

      12      are on the front lines.

      13             You are going to hear from some of them as

      14      soon as I am done.

      15             And we're asking you to commit to a

      16      comprehensive plan to dramatically improve the

      17      quality of long-term-care services in our state.

      18             1199 SEIU members stand ready and willing to

      19      do the work with you.

      20             As such a plan is developed, we're going to

      21      ask you to take a look at testing and cohorting.

      22             Our members saw the difference between what

      23      happens when you cohorted residents, and when you

      24      actually had workers moving from room to room,

      25      COVID and non-COVID residents.









































                                                                   411
       1             On personal protection equipment, it was

       2      real.

       3             We saw members who had to wear garbage bags,

       4      we saw members who were asked to put on raincoats,

       5      as part of their PPE instead of given full gear with

       6      masks, eye goggles, face shields, and gloves.

       7             We also want to make sure that you take a

       8      look at what happens with sick-pay policies, where,

       9      in some cases, let's be clear, one in four workers

      10      were infected by COVID-19, according to the state

      11      department of health.

      12             Some of those workers were workers who also

      13      had to make the choice of staying at home and

      14      recovering, or, being asked by their employers to

      15      come back to work.

      16             That's an unconscionable question that

      17      shouldn't have been asked of workers, yet some

      18      workers were put in that untenable position.

      19             And on staffing, the pandemic revealed and

      20      exacerbated what already was, which is insufficient

      21      staffing in nursing homes.

      22             So we're going to ask you to take a look, and

      23      to hear from the experience, and to imagine what

      24      would it look like:

      25             To make sure that nursing homes are ones









































                                                                   412
       1      where, as we prepare for this pandemic, we know that

       2      there is adequate full PPE gear for all of the

       3      workers;

       4             That there is adequate testing;

       5             That resources are prioritized for testing in

       6      the nursing homes;

       7             That we make sure that workers have access to

       8      the sick pay;

       9             And that we also know that there is going to

      10      be appropriate staffing, as we prepare for what

      11      could be the next surge, and, certainly, as we move

      12      into the flu season.

      13             And with that I yield to our 1199 member

      14      leaders.

      15             SENATOR RIVERA:  Perfect timing, Ms. Silva.

      16             Thank you.

      17             And let's start with Eric Fogle.

      18             ERIC FOGLE:  Good afternoon.  How are you all

      19      doing?

      20             First of all, I want to appreciate -- I would

      21      like to appreciate you giving me the opportunity to

      22      speak today on the COVID epidemic -- pandemic.

      23             My name is Eric Fogle.  I work at Holliswood

      24      Care Center.  I worked at Holliswood Care Center

      25      for, actually, 25 years.









































                                                                   413
       1             The first thing I thought when this actually

       2      took place, that it was unreal.  It was so surreal

       3      when you actually see the situation that was at

       4      hand.

       5             My job is actually activities aide, so I do

       6      what you call "therapeutic recreation."

       7             When you do therapeutic recreation, it is

       8      more that, you have such a closeness to the

       9      patients, to the residents; they're very close to

      10      you.

      11             I normally run a group, and the group will be

      12      of 15 to 20 individuals.  But, because of social

      13      distancing, and because of face masks, and I was

      14      limited to actually 8 -- 8 in a group.

      15             And what happened with that, you could

      16      actually see the effect that it actually had on the

      17      residents on a daily basis, because they were so

      18      used to being with each other in a group, and doing

      19      group program, group activities, such as arts and

      20      crafts, Bingo; [indiscernible] things of that

      21      nature.

      22             So what it was, when you actually, after you

      23      go from -- to a point where you have a group of

      24      15 to 20, and a lot of times you have to choose the

      25      ones that actually understand and respect what was









































                                                                   414
       1      going on that particular time, because, a lot of

       2      times, when you deal with patients that suffer from

       3      Alzheimer's or they suffer from dementia, or an

       4      illness like that, they really don't understand the

       5      severity of what's going on.

       6             So they would constantly remove their masks.

       7      If not remove the masks, they want to keep the mask,

       8      they wouldn't respect the social distancing.

       9             And so I had to be due diligent in choosing

      10      residents that could understand and would actually

      11      follow those.

      12             It was -- it was -- it was very difficult,

      13      like, me talking about it now is very difficult, at

      14      times, that you actually known a resident where

      15      residents are like family to you.

      16             It's not like this resident don't know you.

      17      This resident think you their family because they

      18      see you all the time.

      19             And you see them on a Monday.  And then when

      20      you come back on a Tuesday or a Wednesday, they're

      21      gone.

      22             Or, when you get a new resident that just

      23      came in that you had a connection with, and they

      24      came in on a Monday, and then before you know it,

      25      they have passed away, and it was actually -- passed









































                                                                   415
       1      away the next day, and they was actually gone.

       2             That right there was very troubling.

       3             And you got to realize that, mental, it was

       4      more of a mental thing than so much physical

       5      because, mentally, had you to deal with this each

       6      and every day.

       7             So you're dealing with a virus each and every

       8      day, that you see the toll it actually takes.  And

       9      then you have to go home to your own family, which

      10      is a scary moment, when you actually have an area

      11      that's nothing but COVID patients.

      12             And I used to do what you call "video chats,"

      13      because, the situation there is, you couldn't have

      14      family members visit.  So it was important for them

      15      to do video chat.

      16             Here I am, I'm dressing in a hazmat suit,

      17      going to do a video chat with a resident.

      18             So their family member, a lot of times, are

      19      basically in tears, you could hear the quivering in

      20      their throat, because of the mere fact they scared

      21      of you.  You could actually see me as it was a

      22      sci-fi movie, or something like that.

      23             I'm going in there to visit their family

      24      members so they can check on their family members to

      25      see how their family members is doing, and I'm in a









































                                                                   416
       1      full hazmat suit.

       2             It got to the point whereas I made the

       3      decision where I had to have some type of normalcy.

       4             So what I would actually do, I would actually

       5      put my face mask on, and everything, but I would try

       6      not to actually go in with the hazmat suit.

       7             And a lot of times, too, because of lack of

       8      supply.

       9             One thing about the nursing home owners, it

      10      just seems like it was a lack of supplies.  They was

      11      more concerned about the second wave than dealing

      12      with what was going on right then and there.

      13             So a lot of times, when you go past the

      14      administrator's office, they would have supplies

      15      stacked on top of each other.  But then you would

      16      see CNAs with garbage bags on, LPNs with garbage

      17      bags on; people with hazmat suits with holes on it;

      18      they wouldn't have no face mask, so there will be no

      19      N95 -- there won't be no N95 masks, and things of

      20      that nature, right then and there.

      21             So it was always a constant thing that you

      22      actually seen and you had to deal with, and you had

      23      to keep the moral [sic].  You had to actually keep

      24      people's morality more because they were so nervous

      25      at times about dealing with this particular









































                                                                   417
       1      situation.

       2             We was one of the hardest-hit nursing homes.

       3      We had close to 60 deaths.

       4             We actually had the freezer outside, where,

       5      actually, I was helping put the bodies in the

       6      freezer.

       7             Now, could you imagine that you don't have

       8      the opportunity to say a farewell.

       9             You don't have the opportunity to have a

      10      viewing, you don't have a opportunity where they

      11      actually would be able to bury the person

      12      [indiscernible].

      13             So here it is, we would carry them into a

      14      truck -- a freezer truck, a meat truck, or whatever

      15      you want to call it -- and you actually placing

      16      these residents inside a truck like that.

      17             That was like devastating.

      18             Every time you come home, you're traumatized

      19      just by the idea of that.

      20             We had over 20 to 30 workers that was

      21      actually infected.  Some was infected more than one

      22      time, they was actually infected.

      23             It was intense for three to four months

      24      because, what happened, the nursing homes got a lack

      25      of staffing anyway.  And they did that.









































                                                                   418
       1             So the thing is, with the lack of staffing

       2      they already had, the ones that they did have, they

       3      was pushing them.

       4             So what happened, you had a lot of times

       5      where you have LPNs that was working six or seven

       6      days out the week.  You have CNAs working six or

       7      seven days out the week.

       8             You couldn't take a day off.  You couldn't

       9      call out.  Things like that.

      10             So it was always a situation where that you

      11      was always trying to comfort someone.

      12             We actually had a union member in the

      13      building that actually passed away from COVID.  And

      14      that was really devastating to the department

      15      itself, because the department itself was the type

      16      of department that really didn't have much contact

      17      with --

      18             SENATOR RIVERA:  Mr. Fogle?

      19             ERIC FOGLE:  -- with the residents --

      20             Yes?

      21             SENATOR RIVERA:  If you could wrap up, since

      22      your time has expired.

      23             ERIC FOGLE:  Okay.

      24             So my thing is, what I would just like to

      25      say, that, when it comes down to this, we need to be









































                                                                   419
       1      more proactive than reactionary.

       2             Hopefully, from this particular situation, we

       3      will actually learn how to be able to deal with

       4      this, and put leadership and put guidelines in place

       5      for us to be able to deal with this, deal with this

       6      situation if it happens again.

       7             Thank you very much.

       8             SENATOR RIVERA:  Thank you for your

       9      testimony, Mr. Fogle.

      10             ERIC FOGLE:  Thank you.

      11             SENATOR RIVERA:  We will continue with

      12      Tyresse Byers.

      13             I hope that I pronounced your name correctly.

      14             TYRESSE BYERS:  Yes, you pronounced it

      15      correctly.

      16             Good evening, everyone.

      17             My name is Tyresse Byers.

      18             I've been a member at Sarah Neumann Nursing

      19      Home for the past 12 years.

      20             I'm seven months pregnant, so I worked

      21      through the whole COVID situation, pregnant.

      22             What I had wanted to say is, when I think

      23      about the situation that we was in, for me it was

      24      very scary.

      25             I was in fear at times, not just me, but also









































                                                                   420
       1      my co-workers.

       2             It was just the fact that, when we had got a

       3      bunch of COVID residents sent there to us, we was

       4      lacking PPE.

       5             On top of lacking PPE, we was lacking staff

       6      members, and even nurses.

       7             And instead of them getting people from

       8      outside or getting help from outside, if we was

       9      missing -- if we was lacking PPE and lacking

      10      residents and -- not residents, lacking in

      11      co-workers, they would take the co-workers that they

      12      set aside for us, that they told us before we got

      13      the COVID residents, they're going to clear one unit

      14      out.  And when they clear one unit out, they gonna

      15      just make that unit the COVID unit.  And we gonna

      16      have a certain amount of co-workers that's gonna

      17      work on that unit.

      18             That's how it was going to be set so we can

      19      not spread the COVID to other units or other floors.

      20             So we all thinking this is the plan when they

      21      came in.  They already have a staff ready for who's

      22      going work in that unit.

      23             But when the COVID residents came in, that

      24      wasn't the case.

      25             We had lack of -- short on residents --









































                                                                   421
       1      I mean, not residents.  I'm so sorry. -- short of

       2      staff members.  And we had short numbers of nurses.

       3             When they didn't have enough nurses to cover

       4      the floor, they would pull the nurse off the COVID

       5      unit and have her come and work in the non-COVID

       6      unit, to pass out meds.

       7             And we didn't understand that.

       8             And that's the part that got scary for myself

       9      and my co-workers.

      10             Like, if we come in and working here at a

      11      unit, and it's non-COVID, why would you want to

      12      bring somebody over that's been working the morning

      13      shift, all day, with COVID residents, and move them

      14      over to the side with residents that's not COVID?

      15             And then they didn't have the proper PPE on,

      16      and then you're working with other residents that's

      17      not sick, which contaminated and spread it

      18      throughout the facility.

      19             And they sit there and they say, oh, the

      20      contamination came from the staff members.

      21             The staff members wasn't coming in there

      22      sick.

      23             The staff members got sick after working

      24      different shifts, different floors, to cover the

      25      short staffing that we had.









































                                                                   422
       1             And it's just, it was -- it hurts, it just

       2      hurts.

       3             I'm just expressing my feelings, how it

       4      hurts, how upsetting it was.

       5             And, I just felt like, our government, our

       6      health care and our government, just let us down.

       7             It let us down.

       8             We stay here, we taking care of our residents

       9      that we love, we've grown to love.  We've been

      10      taking care of them for years.

      11             Residents, we had there for years, we treat

      12      them like our own family.

      13             Birthdays, holidays, occasions that came

      14      around, we did things with them.  We would have

      15      parties with them, just to lose them, because of the

      16      way how things went about with the COVID.

      17             And it hurts us, but it hurts our residents

      18      as well, because I'm looking at it, like, we felt

      19      like we didn't have no support.

      20             No support, not even from our own

      21      administration, or DOH that worked there.  They

      22      stayed in their own little cubby.  They wasn't

      23      worrying about if we had enough PPE.

      24             Oh, you work on the floor that don't have

      25      COVID, so you don't need the PPE, you don't need to









































                                                                   423
       1      wear masks, you don't need to wear that.

       2             How do you figure?

       3             It spread like wildfire.

       4             We wanted to have coverage for ourselves and

       5      for our residents.

       6             It took for the State to come in.

       7             The State had to come into our facility for

       8      them to tell us, well, set the residents apart, make

       9      them wear their masks.  Also have the staff wear

      10      their masks.

      11             But when we was suggesting this before it got

      12      as bad as it did at our nursing home, what we was

      13      telling them, they wasn't taking it at face value.

      14      It would just go in one ear and out the other.

      15             And that hurts, that hurts, because I've been

      16      working at this job for years.

      17             I know I had wanted to be a nurse since I was

      18      in junior high school.

      19             And I will never think, in my wildest life,

      20      as grown-up and as an adult, and as a pandemic that

      21      come along at a facility that I work at, that they

      22      wouldn't show the same level of respect and care to

      23      work together with us.

      24             Everything that we did there, we had to do on

      25      our own.









































                                                                   424
       1             Just like the last gentleman that made a

       2      statement, we had to wear plastic bags.  Come in

       3      there, buying our own gloves, buying our own masks.

       4             We came in there with our own supply, not

       5      being able to count on our facility to give us what

       6      we needed.

       7             And then when they did get the stuff, it came

       8      late.

       9             When we finally did get PPE, it was later

      10      on --

      11             SENATOR RIVERA:  Ms. Byers?

      12             TYRESSE BYERS:  -- after we had lost a whole

      13      lot of people.

      14             SENATOR RIVERA:  Ms. Byers, if you could

      15      conclude, since your time has expired.

      16             TYRESSE BYERS:  I'm sorry.

      17             SENATOR RIVERA:  No, no.  No need to

      18      apologize.

      19             I just, you know, want to make sure that we

      20      can hear from your -- from other members as well.

      21             But if you want to do one last statement, you

      22      certainly can.

      23             TYRESSE BYERS:  I just want to say, from this

      24      forward on, as a mother; as a family member; as a

      25      friend; as a person that loved my elderlies, as









































                                                                   425
       1      I would take care of them through my time, that

       2      y'all find a better way and a better solution, and

       3      come up with a better strategy than what was -- that

       4      came up, because it was horrible.

       5             It was horrible.

       6             SENATOR RIVERA:  Thank you, Ms. Byers.

       7             We will continue with Miss Nicole Whittaker.

       8             NICOLE WHITTAKER:  Good evening.

       9             Can everyone hear me?

      10             SENATOR RIVERA:  Yes, ma'am.

      11             NICOLE WHITTAKER:  Hi, good evening.

      12             My name is Nicole Whittaker.  I am a

      13      certified nurse assistant at Berkshire Nursing and

      14      Rehab on Long Island.

      15             I have been working at Berkshire Nursing for

      16      five years.  I work the 7 a.m. till 3 p.m. shift.

      17             My shift begins with serving and feeding

      18      breakfast, and then I move on to a.m. care.

      19             A.m. care includes bathing and dressing the

      20      residents, and also assisting in all activities of

      21      daily living.

      22             We as CNAs provide love and support daily

      23      through many activities.

      24             We also serve and feed lunch, and assist

      25      residents to the bathroom throughout the day.









































                                                                   426
       1             In the beginning of March there was an

       2      outbreak of pneumonia in my facility.  Several

       3      residents had incredibly high fevers, shortness in

       4      breath, and some weren't eating.

       5             They were all seen by doctors, and given

       6      chest X-rays, but COVID testing was not widely

       7      available, especially for their population.

       8             We as staff were watching the news daily and

       9      hearing about this novel coronavirus, and began

      10      calling for proper PPE.

      11             But, for weeks, we resorted to wearing

      12      garbage bags.

      13             N95 masks were finally issued to us, but were

      14      being worn for entirely too long.

      15             The staff was also getting sick, and testing

      16      was still scarce.

      17             We were also being told that we did not

      18      qualify for a 14-day quarantine.  That we were to

      19      return to work once 48-hours fever-free.

      20             Unfortunately, many of us were asymptomatic

      21      and never had a fever or any symptoms of this virus

      22      at all.

      23             So, we just continued to work daily, many of

      24      us pulling double shifts regularly.

      25             When it first came apparent that our









































                                                                   427
       1      residents were suffering COVID-19, they should have

       2      been isolated immediately.

       3             Instead, it took almost a month to institute

       4      proper infection controls.

       5             We lost a significant number of residents,

       6      and many of these deaths could have been prevented.

       7             All of the staff and residents should have

       8      been required to wear appropriate PPE at an earlier

       9      date.

      10             I personally have a seven- and nine-year-old,

      11      and I live with two people over the age of 60.

      12             I would come home after many 13-hour shifts,

      13      and immediately disrobe and shower before being able

      14      to hug my children after being away from them for

      15      plus-13 hours.

      16             I would have to come home living in fear that

      17      I could potentially bring home this virus, and, in

      18      turn, put my children and our family's lives at

      19      risk.

      20             We need to do better, as a whole, to protect

      21      ourselves and our residents against another viral

      22      outbreak of this capacity.

      23             Thank you.

      24             My name is Nicole Whittaker.

      25









































                                                                   428
       1             SENATOR RIVERA:  Thank you very much,

       2      Ms. Whittaker.

       3             And we will start off questions with the

       4      Assembly.

       5             ASSEMBLYMEMBER BRONSON:  Thank you, Senator.

       6             First we'll recognize Chair Gottfried for

       7      5 minutes.

       8             Okay?

       9             Not hearing from --

      10             SENATOR RIVERA:  Are you with us?

      11             OFF-SCREEN TECHNICIAN:  I think we lost him.

      12             We will track him down.

      13             ASSEMBLYMEMBER BRONSON:  Okay.

      14             Then I'll go first, then, in asking a few

      15      questions, but first let me make a comment.

      16             I said this to the family members who were

      17      testifying earlier about the importance of hearing

      18      their stories.

      19             And I say the same thing to all of you who

      20      are on the front line:  You truly are the heroes

      21      that are out there, putting yourselves and your

      22      family at risk, quite frankly, while you're caring

      23      for our loved ones.

      24             And so our heartfelt thank you, but, also, a

      25      recognition that, hearing what you went through is









































                                                                   429
       1      vitally important for us as we try to develop

       2      policies that will make our systems better, and

       3      provide more protection equipment, as well as

       4      guidelines and protocols, that will keep you safe

       5      and keep those who you care for safe.

       6             With that, let me ask first to, 1199,

       7      Miss Milly Silva:

       8             I looked at your written testimony, and at

       9      the end it has several recommendations.

      10             One of them is:  Adopt the Massachusetts

      11      model of an infection-control audit, along with the

      12      availability of technical aid and other resources.

      13             Could you -- just for the record, could you

      14      explain what the Massachusetts model is?

      15             I'm not that familiar with it.

      16             MILLY SILVA:  Certainly.

      17             So one of the things that occurred in

      18      Massachusetts as a result of really figuring out,

      19      how do we start to put a plan in place to address,

      20      and to really fortify the nursing homes during the

      21      pandemic? is that they instituted something called

      22      an "infection-control competency checklist."

      23             And it is a system where nursing homes are

      24      using the checklist in order to make sure that they

      25      are implementing best practices on infection control









































                                                                   430
       1      as a way to really mitigate what's happening with

       2      the spread of COVID-19.

       3             And so as a result of it, each nursing home

       4      was provided with this checklist.  It includes,

       5      under the topic of "Infection Control," for example,

       6      pointing out that residents who are confirmed by

       7      testing to be infected with COVID-19, or who are

       8      recovering from COVID-19, would be separated from

       9      residents who are not infected and have an unknown

      10      status.

      11             "Cohorting," as a point.

      12             It also speaks to facilities implementing a

      13      staffing plan, where there is dedicated, consistent

      14      staffing teams who can interact directly with the

      15      residents who are positive or symptomatic for COVID,

      16      and limiting the movement between that staff and

      17      other staff who are caring for non-COVID patients.

      18             It also speaks to PPE, making sure that full

      19      PPE is going to be provided for staff, but also

      20      adding an additional piece, which I wasn't able to

      21      address in my comments, which are, that staff, in

      22      addition to being provided personal protective

      23      equipment and the full complements of it, they

      24      actually also need to be trained on donning and

      25      offing the PPE so they're able to protect









































                                                                   431
       1      themselves.

       2             On the issue of staffing, it speaks to the

       3      facilities being able to demonstrate that they have

       4      an advanced plan in place for -- certainly for

       5      COVID, and, also, just as part of a general

       6      emergency-preparedness plan.

       7             And that it will include what their plan is,

       8      to either make access to staffing that might be

       9      available through volunteers, through a staffing

      10      portal that might be created.

      11             The checklist also speaks to clinical care --

      12             All of this we can certainly provide to the

      13      committee members following the hearings.

      14             -- that, again, requires the facilities to

      15      implement infection-control policies.

      16             And also on communication.

      17             And it points out the importance of there

      18      being designated staff at the care facility, whose

      19      role it is to make sure that there is constant

      20      communication across the care teams, the management

      21      teams, so that everything is in place in terms of

      22      implementing and executing the plan.

      23             With this infection-control list, then the

      24      State is actually inspecting the nursing homes to

      25      see whether or not they have their competency plan









































                                                                   432
       1      in place, what it looks like, and if they are, in

       2      fact, implementing it.

       3             And then the State is providing additional

       4      technical aid to the facilities.

       5             And there is also some additional funding

       6      that's provided to those nursing homes.

       7             And nursing homes who fail to meet the

       8      requirements of the checklist are then held

       9      accountable by the State.

      10             ASSEMBLYMEMBER BRONSON:  Thank you.

      11             And if you wouldn't mind providing that, that

      12      would be great.

      13             And if you could possibly get it to us so

      14      I can review it before our August 10th hearing, that

      15      would be very important to me.

      16             MILLY SILVA:  Will do.

      17             ASSEMBLYMEMBER BRONSON:  Thank you.

      18             And I just -- I don't have much time.  I only

      19      have 20 seconds left.

      20             So, Ms. Judy Johnson, thank you so very much

      21      for your testimony, especially on the staffing.

      22             Many of us who are on this hearing are very

      23      supportive of that.

      24             And I just wanted to recognize that I think

      25      that we really need to look into the mandatory









































                                                                   433
       1      staffing.

       2             So thank you for your testimony.

       3             And with that, I will shift it --

       4             JUDY JOHNSON:  Thank you.

       5             ASSEMBLYMEMBER BRONSON:  -- [indiscernible

       6      cross-talking].

       7             JUDY JOHNSON:  Thanks.

       8             SENATOR RIVERA:  Thank you, Assemblymember.

       9             And to lead off the Senate questioning,

      10      Senator Rachel May is recognized for 5 minutes.

      11             SENATOR MAY:  Thank you.

      12             And thank you for your testimony.

      13             I can tell it was hard to tell these stories

      14      for some of you, so I really appreciate you sharing

      15      with us.

      16             I have a few questions, kind of general

      17      questions, about working in a nursing home.

      18             So, can any of you speak to how many of your

      19      colleagues are working multiple jobs?

      20             And what do you need in order to be able to

      21      work a single job?

      22             Is the most important [indiscernible]?

      23             Is it regular hours?

      24             Is it child care?

      25             Like, what -- what would be the most









































                                                                   434
       1      important thing to help people work just one job?

       2             TYRESSE BYERS:  A lot of people in my

       3      facility work at least 16 hours.

       4             Like, they'll do an 8-hour shift at my

       5      facility.  Then they'll go to another facility and

       6      do another 8-hour shift.

       7             So a lot of times they're doing it, is

       8      because they don't make enough money at the facility

       9      to cover their bills, so that's why they pick up

      10      extra shifts and extra time.

      11             SENATOR MAY:  [Indiscernible.]

      12             Okay.

      13             And is there a limit to, like, 8 hours is the

      14      most you can work at one facility?

      15             TYRESSE BYERS:  In my facility it's a 40-hour

      16      shift throughout the week.

      17             Sometimes they offer overtime if they have

      18      it.

      19             SENATOR MAY:  Okay.  Thank you.

      20             TYRESSE BYERS:  But a lot of times they try

      21      not to give overtime because they don't want to pay

      22      that extra money of overtime.

      23             SENATOR MAY:  Yeah, sure.

      24             And then I had another question, which was --

      25      and I don't know if any of you can speak to this --









































                                                                   435
       1      but, what are the special challenges of working with

       2      someone with dementia, or with residents who have

       3      memory issues, in the pandemic?

       4             Has that been a special challenge?

       5             TYRESSE BYERS:  A lot of times they just

       6      don't keep their mask on when we told them.  But --

       7      and they like to wander.

       8             Like, you can't keep a person who has

       9      dementia in one spot, or tell them they got to stay

      10      isolated to one spot, because they not used to that.

      11      They're used to just wandering and going.

      12             And it's hard to just tell somebody who is

      13      not fully there, to be, like, you know, that have

      14      dementia, well, I'm sorry, you have to stay here,

      15      it's for your own protection, because they not

      16      really understanding what we trying to say.

      17             SENATOR MAY:  And I'd open it up to other

      18      people, too: Do you need more staff?  Or --

      19             NICOLE WHITTAKER:  Absolutely.

      20             OFF-SCREEN SPEAKER:  [Indiscernible.]

      21             SENATOR MAY:  And then, just going through a

      22      bunch of questions I have:

      23             We've been talking a lot about the ban on

      24      visitation in nursing homes.

      25             And from the families' viewpoint, it's been









































                                                                   436
       1      really, really hard.

       2             But I'm wondering, from the staff viewpoint,

       3      what --

       4             NICOLE WHITTAKER:  As a staff member

       5      representing my residents, there has been some

       6      significant cognitive decline in our residents due

       7      to the loss of not being able to see their family

       8      members.  A lot of their dementia has progressed.

       9             Even though, with dementia, some of them

      10      don't know their family members, they have a slight

      11      idea of who they are.  And they're really, really

      12      suffering because of their family members not being

      13      able to come and visit them.

      14             TYRESSE BYERS:  And it's not the same, even

      15      when we do [indiscernible] communication because,

      16      even myself, by having an iPhone, and I keep in

      17      touch with a lot of my residents' family members,

      18      I will call them, just to show them how they doing.

      19             We have conversations, but, a lot of times,

      20      they get it; and then, a lot of times, they just

      21      don't understand the device.

      22             They be happy to see their family members'

      23      faces, and to talk to them.  But they still don't

      24      understand why they're not there, or when they will

      25      be able to come see them, because they miss them.









































                                                                   437
       1             And they look through pictures more often.

       2             Like, if they have a family album, and stuff,

       3      they look through it more frequently, just telling

       4      us that they miss their loved ones.

       5             JUDY JOHNSON:  That was definitely one of the

       6      hardest things that we had to go through with not

       7      having the family members here.

       8             We did a really amazing job here, like,

       9      assembling the recreation department to do FaceTime

      10      calls on a weekly basis.

      11             So we had, like, at least twice a week we

      12      would reach out to family members.  And that was

      13      helpful, but it's not the same, because, you know,

      14      we have family members who provide hands-on care

      15      when they're here.

      16             And that was really one of the hardest things

      17      that we had to go through, you know, family members

      18      not being able to be with their loved ones, and

      19      passing.  That was so hard.  Very emotional; an

      20      emotional rollercoaster, for the most part.

      21             SENATOR MAY:  And one last question:

      22             I've been told by some nursing homes that

      23      they're not offering the opportunity for outdoor

      24      visits because they just don't have the staff to

      25      supervise that.









































                                                                   438
       1             Is that something you've experienced, or

       2      you -- does that ring true to --

       3             TYRESSE BYERS:  Well, at my facility they

       4      started curbside visits, where, at the front

       5      entrance, they blocked it off.  Where we used to

       6      have cars and stuff, they took the cars and stuff

       7      away.  We're not allowed to park in that area.  And

       8      they set up appointments so they could have curbside

       9      visits.

      10             And some of our volunteers, or some of our

      11      recreation members, would come get some of our

      12      residents, or we would take them out ourselves.  And

      13      they had like, maybe, an hour or two visit,

      14      curbside.

      15             SENATOR RIVERA:  Thank you so much,

      16      Ms. Byers --

      17             TYRESSE BYERS:  But it's only by appointment.

      18             SENATOR RIVERA:  Thank you so much,

      19      Ms. Byers.

      20             And thank you so much, Senator May.

      21             SENATOR MAY:  Thank you.

      22             SENATOR RIVERA:  Assembly.

      23             ASSEMBLYMEMBER BRONSON:  Uh, yes,

      24      Assemblymember Dick Gottfried, your hand was raised.

      25             Do you still want to go?









































                                                                   439
       1             ASSEMBLYMEMBER GOTTFRIED:  Yes.

       2             ASSEMBLYMEMBER BRONSON:  Okay.  Very good.

       3             5 minutes, please.

       4             ASSEMBLYMEMBER GOTTFRIED:  Okay.  Thank you.

       5             First of all, I just wanted to say, you know,

       6      hearing from -- previously from family members, and

       7      now from workers, is just horrific.  I mean, not

       8      easy to listen to, but really important to hear from

       9      the people on the front lines.

      10             I have a couple of questions, I guess, either

      11      maybe for Judy or Milly.

      12             Mitch Katz, the head of the New York City

      13      Health + Hospitals Corporation, the other day we

      14      were on a program together.  And he said that, for

      15      nursing homes -- well, at least for the city's

      16      nursing homes, the fact that their workforce is

      17      unionized made for -- in this crisis, made for

      18      better morale; better, you know, a stronger

      19      workforce; worker retention; just all sorts of

      20      benefits, having a unionized workforce.

      21             This is sort of a softball question:  Do you

      22      agree?

      23             MILLY SILVA:  (Indicating two thumbs up.)

      24             JUDY JOHNSON:  That is a softball question.

      25             ASSEMBLYMEMBER GOTTFRIED:  Why don't we --









































                                                                   440
       1      it's too easy a question.  Let's move.

       2             We've been -- I've been hearing some pretty

       3      shocking stories of nursing homes that, you know,

       4      like reported, at one point, having 13 deaths in the

       5      facility.  And it turns out it was only 8.

       6             I won't mention the facility by name.  You

       7      probably know the name.

       8             Does that happen a lot?

       9             And how does that go on?

      10             JUDY JOHNSON:  During the pandemic it was

      11      really bad.

      12             It's not on a daily basis.  This was just

      13      during the pandemic.  And, again, because it was

      14      so -- you know, this was unprecedented, uncharted

      15      waters we were in.  You know, and it was just

      16      nothing we had seen before.

      17             And, again, with staffing, it was -- you

      18      know, a lot of our staff were out.

      19             So it was just really, really, it was bad.

      20      As again I say, an emotional roller coaster

      21      throughout.

      22             MILLY SILVA:  One [indiscernible] that I

      23      would say is that, in our experience, look, we were

      24      on our calls and conversations with our leaders

      25      every day.  And they were probably, in particular,









































                                                                   441
       1      March and April, some of the most difficult

       2      conversations that we've ever had to have with

       3      anybody, just for -- because members were describing

       4      co-workers who were sick, and in some cases, dying.

       5             And Eric actually shared a story about what

       6      that looks like and felt like in his facility, as

       7      well as also recognizing that, as Tyresse described,

       8      we had members who were taking care of someone.  And

       9      they would come into the facility the next day, and

      10      that person wouldn't be there anymore because they

      11      had transitions on throughout the night.

      12             One of the things that we were able to do in

      13      conversations with our members, is to try to have as

      14      much of a sense of how many people were actually

      15      passing away at the facilities.

      16             And as Ms. Judy described, those numbers

      17      seemed to grow fairly quickly, and, in particular,

      18      during that moment of time.  And that there was a

      19      discrepancy, we found, between what the numbers were

      20      that had been reported to the State, versus what our

      21      own members saw and knew was happening inside the

      22      facilities.

      23             So I think, looking forward, just really

      24      having -- you know, having some expectations for

      25      nursing homes with regards to what the communication









































                                                                   442
       1      and transparency will be, both, with the staff at

       2      the facility, as well as with the State, about what

       3      is actually happening in real time.

       4             I think that that communication is a must.

       5             And in institutions where we saw that that

       6      was occurring, there was much more of a teamwork

       7      that was required in order for people to be able to

       8      focus on how to give care and stay safe.

       9             At the places where there was a sense that

      10      there was PPE being locked in offices, and that they

      11      didn't know what the counts were in terms of people

      12      who were sick, or there wasn't an adequate reporting

      13      about who was symptomatic for COVID, all that did

      14      was fed distrust, and that fed the fear that members

      15      then had to also work through.  And it just made it

      16      that much more difficult.

      17             ASSEMBLYMEMBER GOTTFRIED:  Earlier, some of

      18      the consumer advocates who were testifying said that

      19      they were struck by the fact that the nursing home

      20      trade associations that had testified, talked about

      21      how the department was -- health department was

      22      frequently consulting them, and bringing them in to

      23      talk about what they should be doing and what they

      24      were experiencing, and what the health department

      25      should do, et cetera.









































                                                                   443
       1             And consumer/the family representatives said,

       2      you know, "The department never invites us in to

       3      talk."

       4             To what extent does the union get consulted

       5      by the health department, and compared to the level

       6      of consultation that the trade associations of the

       7      owners were talking about?

       8             SENATOR RIVERA:  And if you could answer that

       9      fairly quickly, since your time is expired -- has

      10      expired.

      11             Ms. Silva?

      12             MILLY SILVA:  [Inaudible] -- sure.

      13             Certainly, on behalf of our members, we were

      14      advocating and in contact with the department of

      15      health, to alert them when we were aware of

      16      situations.

      17             Also, we were doing the work, coordinating

      18      both at the city level as well as the county level,

      19      helping to make -- sort of raise the flag when there

      20      were issues regarding a lack of PPE at institutions.

      21             During the period of time, we received

      22      requests from over 100 employers who, at a certain

      23      time, had less than seven days of PPE available.

      24             And so once we were alerted to that, we then

      25      also used our voices to call attention to those









































                                                                   444
       1      institutions, and to look to have supplies sent

       2      their way.

       3             SENATOR RIVERA:  Thank you Ms. Silva.

       4             Next we have Senator Jim Skoufis, recognized

       5      for 5 minutes.

       6             SENATOR SKOUFIS:  Thanks very much,

       7      Mr. Chairman.

       8             And I want to share my gratitude that some of

       9      my other colleagues have already shared.

      10             You know, pre-COVID, the word "hero" was

      11      thrown around a lot for a lot of reasons, and was

      12      diluted in some ways as a word.

      13             But I think we're all in agreement that you

      14      all on the front lines were heroes for what you've

      15      lived through; for taking care of others; for

      16      sacrificing your health, your family's health.

      17             And I think I can speak for everyone on this

      18      Zoom that, you know, we are indebted to you, and our

      19      constituents are indebted to you.

      20             Thank you.

      21             So I really have just one question I'd like

      22      to ask of each of the witnesses.

      23             So I have personally heard from some

      24      1199 members that a number of local nursing home

      25      administrators in my area were, literally, hoarding









































                                                                   445
       1      PPE under lock and key, leaving desperate,

       2      dangerously-exposed staff to reuse masks and other

       3      equipment, all while fresh supplies existed

       4      "literally" on-site.

       5             One of those facilities was Sapphire here in

       6      Orange County where I represent.  They were alleged

       7      to have done this.

       8             Clearly, securing PPE was an enormously

       9      difficult task in the early weeks and months, and

      10      that ought to be considered as part of this

      11      conversation.

      12             But, in your estimation, 1199, NYSNA, how

      13      much of the PPE crisis in nursing homes was driven

      14      by a genuine shortage versus driven by improper

      15      distribution by administrators?

      16             JUDY JOHNSON:  On behalf of NYSNA, here in

      17      Rockland Nursing Home, I would say it was the

      18      supply, because I was privy to, like, you know, the

      19      supplies coming in and what was being distributed.

      20      And it definitely was a supply issue.

      21             SENATOR SKOUFIS:  Okay.

      22             JUDY JOHNSON:  We did PAUSE -- you know,

      23      every day we would do PAUSE, and you know, we would

      24      have to, like, do a calculation as to how much,

      25      which floor, we had [inaudible] floors which were









































                                                                   446
       1      high priority for the supply chain.

       2             But it was [inaudible] it was definitely.

       3             [Indiscernible] here.  We distributed

       4      according to the need for sure, but it was

       5      definitely a shortage on the supply chain.

       6             SENATOR SKOUFIS:  Okay.  Thank you.

       7             ERIC FOGLE:  I'm only speaking for

       8      [inaudible] -- excuse me, me speaking Holliswood

       9      Care Center, I would not say it was a supply issue.

      10             It was an issue where they was worried about

      11      the second wave.

      12             If you went to the administrator office, the

      13      administrator office had so many supplies in the

      14      office.  When you would walk past, it was actually a

      15      fire hazard, he had that many supplies in the

      16      office.

      17             And when you would ask -- have people that

      18      would look for the N95 mask, or whatever the case

      19      may be, they would often tell them to wear the other

      20      mask, and they could wear the other masks, and they

      21      could wear more than one day.

      22             And the masks, that blue mask, you know, that

      23      you cannot wear more than -- it's only good for

      24      maybe about an hour.  Maybe less than that.

      25             Or, they're upstairs, they were using garbage









































                                                                   447
       1      cans -- I mean, garbage bags.

       2             Or, they need face guards or face shield, and

       3      there's a situation where face guard and face

       4      shields.

       5             There was this incidents where I had to step

       6      in among union members and deal with them a certain

       7      way, because they was actually grabbing supplies.

       8             Because they were so worried about they

       9      wouldn't get supplies the next day, that they would

      10      actually grab supplies and hide supplies from one

      11      another, because they was worried about the mere

      12      fact that, every time they come in to ask for

      13      supplies, there was always a song and dance or an

      14      excuse.

      15             So I used to see the trucks come in with

      16      supplies on top of supplies.  And there should never

      17      be a reason why that you come to work and you don't

      18      have enough supplies.

      19             If you're a police officer, they're not going

      20      to give you only six bullets for your gun if you're

      21      a police officer.

      22             If you have a job to do and you need those

      23      supplies, you should have those supplies.  They

      24      shouldn't worry about the next day.

      25             Let's get through the day, and then we worry









































                                                                   448
       1      about tomorrow, tomorrow.

       2             And from what I seen, they actually hoarded a

       3      lot of stuff.

       4             SENATOR SKOUFIS:  Okay.  Thank you.

       5             MILLY SILVA:  [Indiscernible] -- if I could,

       6      our assessment is that it's a little bit of both.

       7      Right?

       8             No question, let's go back to where we were

       9      in February and March.

      10             It was a global pandemic.

      11             There was a crisis in terms of both the

      12      production of PPE, as well as the distribution.

      13             That is real.

      14             At the same time, we also know, as Eric

      15      described, that there were some employers who, in

      16      fact, based on our members' reports, were

      17      stockpiling PPE and not distributing it to their

      18      staff.

      19             On the other hand, there were some

      20      institutions who actually did do the right thing.

      21             I want to give you [indiscernible

      22      cross-talking] --

      23             SENATOR SKOUFIS:  May I ask --

      24             Sorry, because my time is running out.

      25             MILLY SILVA:  Sure.









































                                                                   449
       1             SENATOR SKOUFIS:  -- in those cases where

       2      there was hoarding, were there any repercussions

       3      from that, Ms. Silva, by the department of health,

       4      or were they simply allowed to do that?

       5             MILLY SILVA:  When I -- I'm aware that when

       6      members understood that there were PPE supplies

       7      available, they then organized and went to

       8      management, and demanded that management release the

       9      PPE supplies to the staff.  And they were able, for

      10      the most part, to resolve the issue at that level.

      11             SENATOR SKOUFIS:  Got it.

      12             Thank you.

      13             SENATOR RIVERA:  Thank you.

      14             Assembly.

      15             ASSEMBLYMEMBER BRONSON:  Yes, next we'll

      16      go to Chair John McDonald, recognized for 5

      17      minutes.

      18             ASSEMBLYMAN McDONALD:  Thank you, Harry.

      19             And to everybody, thank you for joining us.

      20             To Tyresse, and Eric, Nicole, thank you for

      21      your real-time testimony.

      22             You know, we've heard this, we've seen it on

      23      the news.  But to hear what you said, and Judy as

      24      well, and to hear exactly, not only your

      25      frustration, but your concern for your patients,









































                                                                   450
       1      it's a constant reminder to us that -- why we're

       2      doing these hearings.

       3             We want to understand where things came up

       4      short.

       5             Obviously, with PPE, we need to continue to

       6      find ways to make it here in New York, to make sure

       7      we've got enough to provide for everybody in the

       8      state.

       9             And I'm sure you've heard this throughout the

      10      course of the day, and you'll hear it again next

      11      Monday, we're committed to doing that, among other

      12      things.

      13             Harry touched on this a little bit, and,

      14      Milly, I'll probably push to you a little bit on

      15      this, or Judy:

      16             You know, I asked earlier in a couple other

      17      panels about infection control, and the committees.

      18      And I was assured that there are systems in place.

      19             But it sounds like, Milly, we have room for

      20      improvement.

      21             Would you -- would you agree with that?

      22             MILLY SILVA:  Yes, sir.

      23             ASSEMBLYMAN McDONALD:  What's interesting --

      24      and I'm looking at my other computer over here while

      25      I'm doing this -- you know, the Massachusetts model,









































                                                                   451
       1      I hope that you do share that with Harry because

       2      I think there is some important aspects.

       3             And, Milly, because SEIU, and NYSNA too,

       4      plays in both the for-profit and not-for-profit

       5      world, do you -- I'm going to be very blunt, do you

       6      see a difference in approach in the for-profit and

       7      non-profit world in regards to long-term care?

       8             But, also, because I know you also are in the

       9      hospitals, do you see a different approach between

      10      hospitals and nursing homes in regards to the

      11      approach for infection control?

      12             MILLY SILVA:  I will speak directly to the

      13      nursing homes, in that, in our experience, when it

      14      came to the issue of workers who were exposed to

      15      COVID, and who needed, or -- and were confirmed, in

      16      some cases, to be positive for COVID and needed

      17      care, we had a very difficult time, and it was

      18      actually quite outrageous, dealing with for-profit

      19      owners of nursing homes, who made it incredibly

      20      difficult for workers to be able to access the

      21      emergency paid sick leave benefits that those

      22      workers were entitled to.

      23             So that was something that really got our

      24      attention in that moment.

      25             Certainly, I think that, as the pandemic was









































                                                                   452
       1      occurring, it is something we saw across the board,

       2      for-profit, not-for-profit, there was transmission.

       3             I do want to point out that there was one

       4      institution that I think is a story of doing it

       5      exactly right.

       6             An institution in Long Island, San Simeon by

       7      the Sound, one of the things they did is, from day

       8      one, they gave all of their staff full PPE gear.

       9             They quarantined any staff who reported that

      10      they had been exposed.  For two weeks pay

      11      (inaudible) institutions, to make sure that there

      12      was no possibility of that person then bringing

      13      COVID into the nursing home.

      14             There was constant communication between the

      15      caregivers, the management team at all levels.

      16             And the reality is, that the director of

      17      nursing and the 1199 members at that institution,

      18      through those measures, were actually able to

      19      maintain the facility COVID-free.

      20             I think that we should look to places that

      21      were able to do that, but also acknowledge that

      22      there are other institutions, some of which were

      23      mentioned earlier, that did the wrong thing, and

      24      didn't provide PPE, were distrustful of the staff,

      25      didn't invite them to be part of resolving the









































                                                                   453
       1      situation.  And, in some cases, those did happen to

       2      be for-profits.

       3             [Indiscernible cross-talking] --

       4             ASSEMBLYMAN McDONALD:  I have a question --

       5      no, go ahead.

       6             MILLY SILVA:  No.

       7             ASSEMBLYMAN McDONALD:  Okay.

       8             Last question on one of the bullets, it talks

       9      about setting up the system to recruit employee

      10      emergency staff for nursing homes.

      11             You know, during this pandemic, well, the

      12      governor was basically begging retired nurses,

      13      retired doctors, to come back to practice.

      14             We were taking graduates of colleges and

      15      putting them into practice.

      16             Is that what that references?

      17             Or is that -- is that -- what's the meaning

      18      behind that?

      19             MILLY SILVA:  Things certainly looking at all

      20      avenues, are -- that would create an opportunity to

      21      bring more direct-care staff, is going to be

      22      essential to be prepared for either another stage of

      23      COVID or whatever the next pandemic might be.

      24             Another piece that we would offer is, that

      25      the 1199 SEIU Training and Employment Fund actually









































                                                                   454
       1      also offered and assisted nursing homes with being

       2      able to provide staff who were available and willing

       3      to work at their facilities.

       4             And so I think really looking at all

       5      stakeholders who have an opportunity to either

       6      provide fast-tracking on learning and licensing, to

       7      then also offering placement support to nursing

       8      homes, is critical.

       9             ASSEMBLYMAN McDONALD:  Thanks to all of you

      10      for your meaningful testimony.

      11             Chair.

      12             SENATOR RIVERA:  Thank you.

      13             Thank you, Assemblymember.

      14             We will now move on to -- oh, and

      15      Ms. Whittaker, if you could actually mute yourself

      16      while you're not speaking.  We can hear the birds

      17      all over the place.  So just so you know.

      18             Thank you.

      19             We are now moving to Senator Serino,

      20      recognized for 5 minutes.

      21             SENATOR SERINO:  Okay.  Thank you very much,

      22      Mr. Chairman.

      23             And I have to say, Eric, your 25 years,

      24      Tyresse, both of you, your passion is just amazing.

      25             ERIC FOGLE:  Thank you.









































                                                                   455
       1             SENATOR SERINO:  Thank you so much for

       2      everything you do.

       3             Nicole, your story is so relatable, too,

       4      having children and loved ones at home, and being

       5      terrified of bringing this COVID, it's a story

       6      that's so familiar to us.

       7             Thank you.

       8             Milly, I would love to talk to you about the

       9      PPE training.  You probably won't get to it because

      10      I have five questions, and, as you can tell, I'm

      11      going to rip through them really quick so I can get

      12      them all in.  But I'd like to follow up with you

      13      later.

      14             My first question is for Judy, because you

      15      mentioned the major staffing shortage that we all

      16      know that we have.

      17             And you mentioned that you were able to get

      18      some temporary nurses, but they didn't arrive until

      19      May.

      20             So can you tell me the process that you used

      21      to access the temporary nurses?

      22             Was it the volunteer staff portal, or another

      23      avenue?

      24             JUDY JOHNSON:  It was [indiscernible].  It

      25      was actually an agency.  I think it's a city agency;









































                                                                   456
       1      I think it's a city agency that brought in these

       2      nurses, like, from out of state, and CNAs, and stuff

       3      like that.

       4             So they supplemented the staff during that

       5      [indiscernible].

       6             SENATOR SERINO:  Okay, thank you.

       7             Because I've heard horror stories about that

       8      portal.  It did not work, contrary to what we're

       9      hearing.

      10             JUDY JOHNSON:  Yes.

      11             SENATOR SERINO:  Right.

      12             So as you know, I've been a co-sponsor of the

      13      state staffing bill for years.  And I believe the

      14      State needs to do all it can to increase staffing in

      15      these facilities.

      16             JUDY JOHNSON:  Absolutely.

      17             SENATOR SERINO:  Yeah.

      18             I put forward a number of proposals that the

      19      would fund the hiring and training for additional

      20      staff.

      21             One proposal, that would utilize unused

      22      federal funding the State has to foster staffing.

      23             Do you believe the State should provide

      24      direct assistance to the facilities to help bolster

      25      staffing exclusively?









































                                                                   457
       1             JUDY JOHNSON:  Absolutely.  No question about

       2      it.  Absolutely.

       3             SENATOR SERINO:  Thank you.

       4             And as for the PPE shortage, this is a story

       5      we've heard over and over again, and this should

       6      never have happened.

       7             These staffers are true heroes, continuing to

       8      power through and do their jobs.

       9             Has the nurses association or SEIU put

      10      together any data on how many units of PPE we would

      11      need in the event of a second wave, to ensure that

      12      all of your members have access to the PPE they

      13      would need to stay safe at work?

      14             JUDY JOHNSON:  Yeah, they actually sent out

      15      surveys for us to do/for nurses to do, so they can

      16      collect that data.

      17             So I'm sure they are, you know, doing --

      18      putting that data together, so that we be able, if

      19      there's a second wave, or when there's a seconds

      20      wave, to safely -- you know, for our nurses, and --

      21      and -- and aides, and everyone, to safely do our

      22      duty, which is what we revel in doing.

      23             We want to save lives.  We want to be alive

      24      to save lives.

      25             SENATOR SERINO:  Oh, absolutely.









































                                                                   458
       1             JUDY JOHNSON:  Yeah.

       2             SENATOR SERINO:  We want to protect you.

       3             So we want to make sure that there is that

       4      data available, and that we're working on it.

       5             And, also, I noticed from your testimony,

       6      some workers were given hazmat suits.  Others were

       7      wearing garbage bags and raincoats.

       8             Can any of you speak to that discrepancy?

       9             And do you know how the PPE was issued by the

      10      State?

      11             And do you have suggestions to ensure that

      12      the PPE gets to where it's needed most and is

      13      distributed equitably?

      14             Sorry, I'm trying to speed it up.

      15             Does anybody have [indiscernible]?

      16             TYRESSE BYERS:  Well, I just wanted to say,

      17      as far as the PPE is concerned, I felt like it

      18      shouldn't just be on just the worstest [sic] unit

      19      when this COVID gets around pretty fast.

      20             I figured everybody should have had it,

      21      non-COVID floors and COVID floors.

      22             And even our residents should have been able

      23      to wear masks to protect themselves.

      24             We do it now, but it took a while for it to

      25      happen, for them to do it both ways, for us and for









































                                                                   459
       1      the residents, when we were saying this from the

       2      very beginning, before it got as bad as it did at

       3      our facility.

       4             And I just feel, like, when you give care to

       5      a resident, we go in a room, we give care, we're in

       6      there for at least 20 minutes, giving care, or

       7      longer.

       8             By the time you wash, clean, and do

       9      everything you have to do, and then you got to take

      10      everything off and move it to the next room, they

      11      need to provide enough PPE because you don't want to

      12      take what you already have on.  You just finished

      13      giving care to one resident, to move into another

      14      room, and still have to wear the same thing to give

      15      care to another resident.

      16             SENATOR SERINO:  Right, and that was probably

      17      part of the problem.

      18             TYRESSE BYERS:  Right.

      19             MILLY SILVA:  That is why one of our

      20      recommendations is that nursing homes be required to

      21      have a 90-day supply of PPE, calculated at the peak

      22      burn rate from this past year.

      23             It's what's required of the hospitals, and we

      24      believe that the same should happen in the nursing

      25      homes.









































                                                                   460
       1             JUDY JOHNSON:  Absolutely, yes.

       2             SENATOR SERINO:  Agreed.  Thank you.

       3             And I really want to follow up with you,

       4      Milly, about that PPE training, because you brought

       5      up an excellent point.  I think a lot of us would

       6      like to hear that too.

       7             Thank you.

       8             I got all five questions.

       9             Thanks, guys.

      10             SENATOR RIVERA:  Right on time,

      11      Senator Serino.  Excellent work.

      12             We will now continue with the Assembly.

      13             ASSEMBLYMEMBER BRONSON:  Thank you.

      14             Nice job, Senator Serino.

      15             We will next go to Assemblymember

      16      Kevin Byrne, and we will give you 5 minutes, please.

      17             ASSEMBLYMEMBER BYRNE:  Thank you,

      18      Mr. Chairman.

      19             I want to thank all the speakers in this

      20      group.

      21             It's been said, and it's like beating a dead

      22      horse a little bit here, but, you truly are all

      23      front-line heroes, and we need more of you.

      24             We need more nurses.

      25             I think that's part of the much larger issue,









































                                                                   461
       1      before COVID, after COVID, we need more of you.

       2             And I did want to ask before I got into my

       3      questions, one of the speakers, was it Tyresse,

       4      Sarah Neumann, is that the Sarah Neumann Nursing

       5      facility in Mamaroneck?

       6             TYRESSE BYERS:  Yes.

       7             ASSEMBLYMEMBER BYRNE:  Right.

       8             In another life, where I used to work as an

       9      EMT right out of college, I used to take plenty of

      10      patients to nursing facilities.

      11             That was one of them.  And I think Walters is

      12      right outside.

      13             So --

      14             TYRESSE BYERS:  Yes.

      15             ASSEMBLYMEMBER BYRNE:  I'm very familiar that

      16      place.

      17             And I want to thank you all again, but you do

      18      a tremendous job.

      19             And one of the things that was shocking to

      20      me, reading the department of health's report that

      21      we were discussing earlier with the commissioner,

      22      and I think it's been referenced a little bit again

      23      since then, is about the number of exposure with

      24      staff at our nursing facilities.

      25             And it's about almost a quarter of our









































                                                                   462
       1      workforce in nursing facilities were tested positive

       2      through the antibody testing, to show that there was

       3      some sort of exposure.

       4             I was very surprised by that.

       5             Maybe I shouldn't have been, because

       6      I remember during the governor's press conferences

       7      earlier in the year, there was antibody testing.

       8      And it was -- I think it was more geared towards the

       9      hospital setting, and it was much lower.

      10             Now, I have to think, maybe that's because of

      11      the hospital setting having more PPE.  And I think

      12      there's probably multiple factors involved.

      13             Your testimony shared a lot about the need

      14      for personal protective equipment.

      15             I think it was mentioned that a lot of the

      16      staff at these facilities may work multiple jobs at

      17      multiple facilities.  I wonder if that's part of it.

      18             If it's part of it's a delayed access to

      19      testing at the facilities.

      20             And I wanted to see if that was -- if you had

      21      any comments to speak what -- you know, why the

      22      disparity between, you know, having these positive

      23      cases in staff at nursing facilities versus maybe

      24      another traditional hospital setting, if you had any

      25      comments or thoughts, for any of you?









































                                                                   463
       1             NICOLE WHITTAKER:  I work at

       2      Berkshire Nursing Rehab on Long Island.

       3             And from my perspective, it was that the

       4      hospitals were more important to get PPE, as opposed

       5      to the nursing facilities, even though it was to be

       6      known that our population was the most at risk.

       7             ASSEMBLYMEMBER BYRNE:  So the largest portion

       8      of that is PPE, and it's not really a surprise.

       9             But I wanted to ask that question still.

      10             Another question that I had was, sometimes we

      11      hear anecdotal information, and it's not necessarily

      12      verified.  So I'm very careful when I share this.

      13             But I just wanted to ask if you had any

      14      issues, or heard any issues from your members, about

      15      having trouble accessing information about patients,

      16      if they were positive-COVID?

      17             You know, there's always -- once in a while

      18      you hear a story about, a nurse was caring for a

      19      patient, and then they didn't know the -- you know,

      20      they may not have known because the person wasn't

      21      tested.  But they may not have known because it was

      22      in their patient record, and the staff just didn't

      23      know.  And then they may have inadvertently just

      24      spread it.

      25             Have there been challenges with some of your









































                                                                   464
       1      members getting the correct access to information

       2      about patients?

       3             TYRESSE BYERS:  Well, we had times when we

       4      was taking care of residents, and we would let our

       5      supervisor know or nurse in charge:  Well, we've

       6      been giving care to Mrs. Davidson.  For the past

       7      couple of days she haven't had no fever, but she

       8      been having a cold, she haven't been able to eat.

       9             And stuff like that.

      10             And some of the supervisors say, well, she's

      11      not running a fever.

      12             It's not -- a fever ain't always the symptom.

      13      There's always other symptoms.

      14             And we bringing it to your attention so you

      15      can test the resident.

      16             And a day or two will go by before they do

      17      the testing, because now Mrs. Davison got worse in

      18      the last two days.

      19             And it took Mrs. Davison to get worse in

      20      the last two days before you did the testing.  And

      21      then when her test came back positive, we done been

      22      around Mrs. Davison all this time.

      23             We've been asking, can she get tested?

      24             Because we look after her, we see her daily,

      25      we know her routines and her behavior, and we tell









































                                                                   465
       1      you something is wrong.

       2             ASSEMBLYMEMBER BYRNE:  Yeah, and I can

       3      understand you always want to wear the PPE.

       4             But the reality is, when you know a patient

       5      is going to have an infectious disease, you're going

       6      to treat that patient differently, whether it's

       7      isolation, or what have you.

       8             One other question I had:

       9             It was talked about PPE and supplies, and

      10      this is a generic question.  I'm not sure if the

      11      answer will be no.

      12             Early, early on in the pandemic, when people

      13      were hoarding, not just in hospitals and health-care

      14      facilities, but in the private sector as well.

      15             SENATOR RIVERA:  If you can ask the question

      16      in the next 15 --

      17             ASSEMBLYMEMBER BYRNE:  15 seconds?

      18             SENATOR RIVERA:  -- ask your question --

      19      yeah.

      20             ASSEMBLYMEMBER BYRNE:  Have you heard

      21      anything about people actually stealing PPE?  Not

      22      your members, but just people in general?

      23             TYRESSE BYERS:  No.

      24             As soon as -- as soon as we found out that

      25      this outbreak was happening, in my facility, we used









































                                                                   466
       1      to stay stacked with gloves.  We'd have our cart

       2      with our gowns, and everything.

       3             And they -- when they made this known, one

       4      day I came into work, the supply closet was empty.

       5             That same stack, it was empty.

       6             And now they was distributing it manually.

       7      Like, you had to go through a supervisor to get the

       8      gloves.

       9             And she'd give you one pack of gloves.

      10             And we had, but Mr. Franco have gloves in his

      11      room.  But we need more than one.

      12             We should keep gloves in every room.

      13             SENATOR RIVERA:  I feel terrible, Ms. Byers,

      14      because it seems that I'm always interrupting you,

      15      and I apologize.

      16             TYRESSE BYERS:  It's okay, it's okay.

      17             SENATOR RIVERA:  But I want to make sure that

      18      we can get everybody to ask -- who needs to ask

      19      questions.

      20             Thank you, Assemblymember.

      21             Next we have Senator Tom O'Mara recognized

      22      for 5 minutes.

      23             SENATOR O'MARA:  Thank you, Chair.

      24             And I want to thank you each and every one of

      25      you for your service, for your being on the front









































                                                                   467
       1      lines, and not just yourselves, but all of your

       2      colleagues across New York that have done

       3      outstanding work throughout this pandemic that we've

       4      had, putting yourself at grave risks, the families

       5      members you return to home to in the evening at risk

       6      at well.

       7             So thank you for (inaudible) that you have

       8      persevered throughout this.

       9             You know, we were hoping to get some

      10      information today from our health commissioner,

      11      Howard Zucker, on how many nursing home residents

      12      that were sent to the hospital with COVID ultimately

      13      succumbed to COVID in the hospital, and, therefore,

      14      are not counted in the nursing home data that the

      15      department of health reports.

      16             I would like to ask each of you, if you have

      17      any thoughts or any comments, an estimate of, from

      18      your facilities where you work, did you see

      19      residents sent to hospitals, never to return?

      20             JUDY JOHNSON:  Yes.

      21             Absolutely, yes.

      22             OFF-SCREEN SPEAKER:  Yes.

      23             JUDY JOHNSON:  And one of the things again

      24      is, testing.

      25             Testing was not being done.  These residents









































                                                                   468
       1      were being sent over, never to return.

       2             And the other thing that we have to also

       3      remember, during this time, the funeral homes were

       4      allowed to come in and claim the bodies.  And a lot

       5      of the residents were cremated so we would never

       6      know.

       7             Tests weren't done on them, they died.  And

       8      then the bodies were gone, they were cremated.

       9      A lot of people got cremated during this time.

      10             So, again, the data would never be reflected

      11      correctly because the tests weren't available.

      12             And that was one of the biggest problems:

      13      tests weren't available.

      14             So even though residents, or patients, or

      15      whoever, were displaying symptoms -- signs and

      16      symptoms, no tests were available to be done.

      17             They transferred over, or died right there,

      18      and the tests were never done.

      19             SENATOR O'MARA:  Thank you, Judy.

      20             Others want to comment on that issue?

      21             TYRESSE BYERS:  Yes, I seen a lot of loved

      22      ones leave, and some of them didn't come back, or a

      23      lot of loved ones died there at the nursing home,

      24      that been there with us for years.  For years.

      25             SENATOR O'MARA:  Anyone else care to comment









































                                                                   469
       1      on that?

       2             With regards to -- I'll move on.

       3             With regards to the PPE shortage, and, you

       4      know, aside from the hoarding at some facilities,

       5      but mainly the lack of PPEs at a lot of the

       6      facilities, at what point do you feel that your

       7      facility got caught up with appropriate PPEs, if

       8      they have even to date, or what shortages still

       9      exists in your facilities, or what type of PPE you

      10      need?

      11             TYRESSE BYERS:  Right now at our facilities

      12      we get masks.

      13             And the way that they're doing it now is,

      14      they give us an N95 mask.  We sign for it.

      15             At the end of the day we supposed to turn in

      16      our N95 masks, so they can stick it in a brown paper

      17      bag.  And when you come in tomorrow, you get the

      18      same N95 mask, right back, to give to you to work

      19      [indiscernible cross-talking] --

      20             SENATOR O'MARA:  Still today?

      21             TYRESSE BYERS:  To today.

      22             And we do this for three days.

      23             And I had to let them know I'm not returning

      24      in my N95 mask.

      25             I'd rather take it home, spray it, clean it,









































                                                                   470
       1      let it air dry, and then wear it the next day.

       2             It makes no sense for me to wear my N95 mask

       3      that I use to take care of my 13 residents, to come

       4      back here to give you my N95 mask, to stick in a

       5      brown paper bag, to give right back to me tomorrow,

       6      and it wasn't even cleaned or sanitized.

       7             SENATOR O'MARA:  Thank you.

       8             Anyone else?

       9             ERIC FOGLE:  She's actually fortunate

      10      enough -- like I say, I work for Holliswood Care

      11      Center.

      12             She's actually fortunate enough to get an

      13      N95 mask because, in the facility I'm in, they're

      14      rare.  Like, N95 masks are basically like dinosaurs;

      15      they're just that difficult to actually get.

      16             The masks that you always have, even when you

      17      come at the front desk, they have the new masks that

      18      you actually tie in the back.  They have those

      19      masks.

      20             And I have a mask here sitting on the table

      21      with me right now.  It's, basically, the blue mask.

      22      So that's the mask that they always seem to have in

      23      abundance.

      24             When it come to N95 masks themselves, like

      25      I said, they're like a dinosaur, or, an eclipse,









































                                                                   471
       1      some every four years, or whatever the case may be.

       2             I don't know what the situation is of what

       3      happened before.  They used to have the N95 masks

       4      out.

       5             But I guess, because they feel like, even

       6      though it's still social distancing, still

       7      mask-wearing, I don't know if they feel that they're

       8      out of the woods as of yet.  So maybe that's the

       9      reason why they're not supplying them.

      10             But even when we was at the height of it,

      11      when it was -- when we was really overwhelmed,

      12      N95 masks was still difficult to come by, and they

      13      still are now.

      14             SENATOR O'MARA:  Are gowns available today

      15      for each of you?

      16             ERIC FOGLE:  Gowns are actually available

      17      when you actually -- when you're doing direct care,

      18      or whatever the case may be.  They will be able

      19      actually have gowns.

      20             But what you do notice a lot of times, nurses

      21      will actually put gowns on the floors and try to

      22      hold onto the gowns on the floors for when the gowns

      23      are actually really needed.

      24             SENATOR RIVERA:  Thank you very much,

      25      Mr. Fogle.









































                                                                   472
       1             SENATOR O'MARA:  Thank you, all.

       2             SENATOR RIVERA:  Thank you, Senator O'Mara.

       3             Back to the Assembly.

       4             ASSEMBLYMEMBER BRONSON:  Thank you.

       5             Next we'll go to Assemblymember Jake Ashby,

       6      recognized at 5 minutes.

       7             ASSEMBLYMEMBER ASHBY:  Thank you,

       8      Mr. Chairman.

       9             Earlier, I think it was Mrs. Whittaker who

      10      spoke kind of this collective cognitive decline that

      11      she noticed in her residents, secondary to

      12      [indiscernible] that they've been experiencing.

      13             And I'm wondering if you've also seen kind of

      14      a physical decline along with that, because

      15      [inaudible] as well?

      16             NICOLE WHITTAKER:  Absolutely.

      17             I mean, at the height of the pandemic we were

      18      very short-staffed.

      19             It was to the point where we had three aides

      20      on a [indiscernible] unit.  And our charge nurse was

      21      our med nurse and our supervisor.  So it was very

      22      difficult for us to give these people/our residents

      23      the attention that they needed to help them, you

      24      know, get up and out of bed.  And a lot of them are

      25      on nursing-floor ambulation.  And we did not have









































                                                                   473
       1      the time to be able to get that done.

       2             ASSEMBLYMEMBER ASHBY:  And do you feel like

       3      the people that have declined, are some of them

       4      starting to bounce back, or have they plateaued, or

       5      are they continuing to decline as we speak?

       6             NICOLE WHITTAKER:  With the increase of our

       7      staffing, I believe that it has wholeheartedly made

       8      a difference.

       9             But these people are really missing their

      10      families.  And, you know, seeing their faces over a

      11      teleconference, or having someone banging at their

      12      window, is not helping.

      13             They need to have their families back in

      14      their lives.

      15             ASSEMBLYMEMBER ASHBY:  I don't imagine this

      16      is just exclusive to Ms. Whittaker, but I'm sure,

      17      Ms. Byers and Mr. Fogle and Ms. Johnson, this is all

      18      going on at your facilities as well.  Correct?

      19             JUDY JOHNSON:  Yes.

      20             TYRESSE BYERS:  Uh, yes.

      21             ERIC FOGLE:  Yes, it is.

      22             ASSEMBLYMEMBER ASHBY:  So if you were able

      23      to, what could you -- if you wanted to improve the

      24      functional ability of your residents, you know,

      25      because I don't imagine that it's going to get









































                                                                   474
       1      easier over the next couple of months to really see

       2      a collective improvement throughout all of these

       3      facilities, what would you do to improve the

       4      functionality?

       5             Because I don't know if many people can

       6      understand, like, it's one thing if someone needs a

       7      little bit more help eating, you know, now and then,

       8      cutting their food.

       9             But when someone goes from, you know, a

      10      [indiscernible] assist, to a two-person assist, to

      11      get on and off the toilet --

      12             TYRESSE BYERS:  Right.

      13             ASSEMBLYMEMBER ASHBY:  -- [inaudible] that

      14      they probably need more help actually (inaudible).

      15             TYRESSE BYERS:  Right, I would say that.

      16             I would say [indiscernible cross-talking] --

      17             ASSEMBLYMEMBER ASHBY:  And as one person --

      18      you know, if that's happening with one person,

      19      that's happening to 60 people [inaudible] with

      20      staffing and what you need.

      21             So if you could -- if you had the ability to

      22      change things and improve -- have your residents

      23      improve collectively, what would it be?

      24             JUDY JOHNSON:  More staffing.

      25             TYRESSE BYERS:  More staffing, yeah, more









































                                                                   475
       1      staffing [indiscernible cross-talking] --

       2             JUDY JOHNSON:  And their family members in

       3      their life.

       4             TYRESSE BYERS:  -- so you can give more time

       5      to your residents.  You can give more acute to your

       6      resident if you add more staffing.  You would be

       7      able to give them that extra 20 or 30 minutes that

       8      they want from you, instead of saying, Can you give

       9      a few minutes?

      10             You can only do the essentials, and then you

      11      got to come back, because you still got 10 or

      12      12 other residents of your own.  Not within the

      13      facility, of your own, that you still have to give

      14      care to.  And they all want the same attention.

      15             And it's hard; it's hard when they all want

      16      the same attention.

      17             NICOLE WHITTAKER:  I would like to also add

      18      that, during the height of the pandemic, we lost

      19      therapeutic recreation.  So there was no more Bingo,

      20      there was no more coffee hour, there was no more

      21      movie [inaudible]; things that these residents look

      22      for every day.

      23             I have specific residents that, every single

      24      day that Bingo was offered, they're there.

      25             10:00 coffee hour, they're the first waiting









































                                                                   476
       1      at the door to be opened.

       2             And they lost all of that as well.

       3             JUDY JOHNSON:  Uh-huh.

       4             ASSEMBLYMEMBER ASHBY:  Mr. Fogle, anything

       5      to add?

       6             ERIC FOGLE:  Yes.

       7             Well, she's absolutely right, because I do

       8      the therapeutic recreation.

       9             And what you try to do is have normalcy.

      10             You know things are not normal, but what you

      11      try to do is make it as normal as possible, close to

      12      normal as possible, that you possibly can.

      13             But because you have the social distancing

      14      and you do have the mask, you have to limit the size

      15      of the program.

      16             But what I normally do, and what we continue

      17      to do, we continue to provide programs for them.

      18             So we try to make it seem, like, okay, this

      19      is what a normal day would be like.

      20             They just don't see a large group as they

      21      would normally see.  But they enjoy Bingo, they

      22      enjoy coffee chat, they enjoy arts and crafts, they

      23      enjoy Trivia; they enjoy these types of things that

      24      you provide for them on a daily basis.  And they

      25      look forward to it.









































                                                                   477
       1             And the whole thing with the socialization,

       2      which is also what's in a group, which is kind of

       3      difficult at times because you're so limited.

       4             So what you try to do is, put them six feet

       5      apart, but have them where they can actually have a

       6      conversation, or, can they sit there with each

       7      other, and just read a magazine or look through a

       8      book, or whatever it can be.

       9             But normalcy is what I try to always provide

      10      every day.

      11             ASSEMBLYMEMBER ASHBY:  Thank you.

      12             Thank you, Mr. Chairman.

      13             SENATOR RIVERA:  All right.  Thank you.

      14             We don't have currently any questions from

      15      the Senate.

      16             Going back to the Assembly.

      17             ASSEMBLYMEMBER BRONSON:  Okay.

      18             We will next go to Assemblymember Ron Kim,

      19      recognized for 3 minutes.

      20             ASSEMBLYMEMBER KIM:  Thank you.

      21             First, I want to just join my colleagues in

      22      thanking the workers for enduring so much trauma and

      23      challenge in some of the worst situations one could

      24      imagine.

      25             Just, I want to share one bit of good news.









































                                                                   478
       1             The governor signed our legislation to narrow

       2      the scope of a corporate immunity that was handed

       3      out early.

       4             The administration framed this issue as a

       5      pro-worker thing.  But, because of how it was so

       6      broad, it actually limited workers' rights to file

       7      lawsuits if they found that their employers weren't

       8      providing a safe workplace.

       9             So I think this is a step toward restoring

      10      the rights for the workers, to make sure that we can

      11      hold these facilities accountable from preventing

      12      the spread of COVID-19, and also for making sure

      13      they're arranging the care properly and moving

      14      forward.

      15             But I want to redirect my question to how

      16      Governor Cuomo and his administration, starting in

      17      early May, began to put blame and shifted the

      18      responsibility -- shifted the spreading of the

      19      infection toward workers.

      20             On May 18th, in one of his briefings, he

      21      explicitly started to blame the workers in nursing

      22      home facilities for spreading COVID-19; yet we all

      23      know that more than 6,000 COVID-positive patients

      24      were transferred back to nursing homes in the last

      25      three months.









































                                                                   479
       1             And I know that the commissioner has

       2      submitted testimony that, despite that massive

       3      number of people coming back in, it didn't have an

       4      impact.  It was mostly the family and the workers

       5      that were responsible for spreading COVID-19.

       6             Can you get -- as -- as the workers on the

       7      ground, can you let us know if -- well, first of

       8      all, are nursing homes hospitals?  Are they even

       9      equipped, you know, to take in these, you know,

      10      patients?

      11             And what kind of an impact did that have on

      12      this facility in the last several months?

      13             SENATOR RIVERA:  And before you answer that

      14      question, Mr. Kim, we'd feel a lot better if you

      15      pulled over.

      16             Driving while the Zoom is happening doesn't

      17      make us feel too safe for you.

      18             ASSEMBLYMEMBER KIM:  I'm not looking --

      19             SENATOR RIVERA:  But I'm sorry --

      20             ASSEMBLYMEMBER KIM:  I'm not looking at my

      21      phone.

      22             SENATOR RIVERA:  Yes, you were.  Yes, you

      23      were.

      24             The workers, go ahead and answer.

      25             I'm just concerned about you.









































                                                                   480
       1             ASSEMBLYMEMBER KIM:  Okay.

       2             SENATOR RIVERA:  Please answer.

       3             I'm sorry.

       4             And I'll give you 30 seconds extra.

       5             I just would prefer that you be safe.

       6             ASSEMBLYMEMBER KIM:  Okay.  Thank you,

       7      chairman.

       8             ERIC FOGLE:  We personally, I, agree with you

       9      100 percent.

      10             As you notice with the hospitals, the

      11      hospitals are more equipped to actually handle the

      12      COVID virus.  Nursing homes are not.

      13             And sometime when you would actually watch

      14      them bring new residents in that was COVID-positive,

      15      you could almost look at that resident yourself, and

      16      you would sit there and say, if that resident made

      17      it through the week, it was a miracle that they made

      18      through it the week.

      19             So I could never understand why we took --

      20      or, we was getting so much of the blame, when you

      21      actually had hospitals that couldn't even handle it

      22      themselves.

      23             Hospitals are way more equipped to actually

      24      deal with a situation like that.  And from what you

      25      understand, they was having peoples pass away in the









































                                                                   481
       1      hospital.

       2             But for some strange reason, there was, the

       3      blame was shifted on the hos -- it was shifted on

       4      the nursing home workers, which I could never really

       5      understand or wrap my head around because a nursing

       6      home is not a hospital.  We're not equipped to deal

       7      with a pandemic like a hospital is actually equipped

       8      to deal with a pandemic.

       9             Even when it come on to isolation with a

      10      nurse [indiscernible], sometimes they would take a

      11      COVID-positive resident and would put a

      12      COVID-positive resident in a room with a patient

      13      that wasn't COVID-positive at all, or had no

      14      symptoms of being COVID, just because of the

      15      placement, and because they had not enough area or

      16      enough space for it.

      17             So how we got the blame is beyond me.

      18             How they actually narrowed it down and say we

      19      was a lot -- had a lot to do with it, is beyond me

      20      too, because I say, I used to see them bring

      21      patients in.  And when they was bringing patients

      22      within the building, you could see that patient, was

      23      not -- just physically looking at that patient, that

      24      patient was not in any good shape at all.

      25             SENATOR RIVERA:  Thank you, Mr. Fogle.









































                                                                   482
       1             Thank you, Mr. Fogle.  That was a good

       2      35 seconds extra.

       3             I hope that you continue to drive safely,

       4      Assemblymember Kim.

       5             Back to the Assembly.

       6             ASSEMBLYMEMBER BRONSON:  Yes, for our last

       7      questioner, we will go to Assemblymember

       8      Tom Abinanti, recognized for 3 minutes.

       9             ASSEMBLYMEMBER ABINANTI:  Okay, thank you

      10      very much.

      11             As the last speaker, I guess I'll be the last

      12      one to say thank you to all of you.

      13             We really appreciate the efforts that you and

      14      your colleagues have put in over these very, very

      15      trying times.

      16             And I really mean that.

      17             I got a text from somebody over at SEIU, a

      18      comment I made earlier today seemed to have offended

      19      some people.  And I really did not intend to offend

      20      anyone [indiscernible].

      21             I really do appreciate all of the work that

      22      you all do.

      23             You truly are our heros.

      24             I also appreciate your standing up for the

      25      family.









































                                                                   483
       1             You who are on the job understand the

       2      importance of having others come in and work with or

       3      visit with their family members.

       4             I was just wondering, I have two questions

       5      basically:

       6             One:  Are there any plans that you could help

       7      devise to get family members in safely?

       8             Has anybody worked with any of you yet?

       9             Have they asked for the nurses's input, or

      10      the union's input, as to how we could get family

      11      members back in [indiscernible]?

      12             It seems that the health department is

      13      stymied by that.

      14             And the second thing is:  We've talked about

      15      safe staffing.  We even passed a bill dealing with

      16      safe nursing staffing.

      17             I was wondering, what are the staffing levels

      18      necessary or mandated now for nursing homes?

      19             And is there a way that we can have a similar

      20      type of legislation if the health department can't

      21      do something, to make sure that you have enough

      22      staff at each location, so that you all feel

      23      comfortable in doing the jobs that you have to do?

      24             Whoever wants to go.

      25             JUDY JOHNSON:  First I want to say --









































                                                                   484
       1             MILLY SILVA:  I'll take a shot.

       2             JUDY JOHNSON:  -- oh.  Okay.

       3             MILLY SILVA:  May I?

       4             JUDY JOHNSON:  Okay.  Go ahead, go ahead.

       5             Yes.

       6             MILLY SILVA:  So on the staffing piece,

       7      I would want to point out that, right now in

       8      New York, what we have is 2.3 hours of -- hours

       9      of -- a day for direct care for nursing home

      10      residents.

      11             What has actually been recommended by health

      12      advocacy and policy experts is something that is

      13      closer to 4.0 hours.

      14             That's one.

      15             The second is, that we think that the

      16      conversation regarding staffing really warrants a

      17      careful conversation around what it looks like in

      18      terms of direct care staff, as well as the

      19      professional caregivers who work at the facilities.

      20             And then I think on the question -- but

      21      New York also has -- does not have a state

      22      minimum-hours requirement.  And I think that it is,

      23      you know, one of 12 or one of 15 states that remain

      24      in that category.

      25             The other, with regards to the question









































                                                                   485
       1      around family members, you know, we would encourage

       2      that home operators actually invite the caregiving

       3      staff, along with the family members, to come

       4      together and have a discussion around, what are the

       5      things that we can currently put in place to be able

       6      to have the residents get access to their families

       7      as quickly as possible?

       8             It's that kind of communication, bringing all

       9      the stakeholders to the table, that's necessary,

      10      because the reality is, that the men and women who

      11      are on this call, who provide the [inaudible] heard

      12      on the earlier panel.

      13             SENATOR RIVERA:  Okay.

      14             ASSEMBLYMEMBER ABINANTI:  Thank you.

      15             SENATOR RIVERA:  Ms. Silva, thank you so

      16      much.

      17             So that brings this panel to an end.

      18             And I will -- and I know -- I know that

      19      Assemblymember Abinanti said that he was going to be

      20      the last one, but I will be the last one to say:

      21             Thank you for all the work that you have

      22      done, to make sure that you keep people healthy.

      23             And we look forward to working along with all

      24      of you as we consider what policies we might need to

      25      change, going forward, to better protect our









































                                                                   486
       1      residents in nursing homes all across the state.

       2             So thank you so much for all your service.

       3             JUDY JOHNSON:  You're welcome.

       4             Thank you.

       5             ERIC FOGLE:  Thank you.

       6             SENATOR RIVERA:  You may go back to your

       7      normal day.

       8             While we soldier on to Panel 7, and that will

       9      be:

      10             Pat Tursi, chief executive officer for the

      11      Elizabeth Seton Children's Center;

      12             Rachel Amar, parent of patient at the

      13      Elizabeth Seton Children's Center;

      14             Dr. Edwin Simpser -- I'm hoping that I've

      15      pronounced your name correctly -- president and CEO

      16      at St. Mary's Healthcare System for Children.

      17             Monsieur Gottfried, if you are with us still?

      18             ASSEMBLYMEMBER GOTTFRIED:  Am I un-muted?

      19             SENATOR RIVERA:  You are now.

      20             ASSEMBLYMEMBER GOTTFRIED:  Okay.

      21             Do you all swear or affirm that the testimony

      22      you're about to give is true?

      23             PAT TURSI:  Yes.

      24             RACHEL AMAR:  Yes.

      25             EDWIN SIMPSER, M.D.:  Yes, I affirm.









































                                                                   487
       1             ASSEMBLYMEMBER GOTTFRIED:  Okay.

       2             SENATOR RIVERA:  All righty.

       3             Let's start with Pat Tursi, please.

       4             PAT TURSI:  Thank you.

       5             Thank you, Chairperson Gottfried,

       6      Chairperson Rivera, members of the Assembly and

       7      Senate, for organizing this important hearing.

       8             I'm Pat Tursi, CEO of Elizabeth Seton

       9      Children's Center and School in Yonkers.

      10             COVID-19 has had a profound and unanticipated

      11      impact on our cherished children and young adults

      12      with complex medical needs who have not hugged or

      13      kissed their parents in over four months.

      14             I'd like to focus my testimony today on the

      15      trauma that this has caused by the current nursing

      16      home visitation restrictions.

      17             This trauma can, quite literary, take years

      18      off our children's already life-limited life.

      19             Elizabeth Seton Children's is the largest

      20      licensed pediatric nursing home in the country.

      21             It was built in 2011.

      22             Their hospital standards with HEPA filters

      23      and UV lights to safely care for 169 residents, of

      24      which 67 are dependent on ventilators, oxygen, and

      25      medical technology to live.









































                                                                   488
       1             This requires a highly-qualified staff of

       2      pediatricians, RNs, palliative specialists,

       3      rehabilitation and respiratory therapists, and

       4      educators, and more, to provide a quality of life

       5      that's second to none.

       6             And, of course, their families.

       7             Starting in late February, our leadership

       8      recognized the distinct and deadly threat this virus

       9      would pose our compromised children.

      10             SENATOR RIVERA:  Ms. Tursi, I'm sorry to

      11      interrupt you.

      12             Could you start your video, please?

      13             PAT TURSI:  Oh.

      14             SENATOR RIVERA:  Yes, we want to make sure

      15      that you are -- there you go.

      16             We want to make sure that you are for

      17      posterity, since it is being recorded.

      18             Please continue.

      19             PAT TURSI:  Sorry.

      20             I lost where I was.

      21             Oh, oh, my God.

      22             Okay.

      23             -- so, distinct and deadly threat this virus

      24      posed our compromised children.

      25             We began implementing strict









































                                                                   489
       1      infection-prevention protocols that led to our

       2      success.

       3             I'm overjoyed to share that no child has

       4      tested positive for coronavirus throughout this

       5      pandemic.

       6             In fact, there have been zero viral

       7      infections since March 17th.

       8             The 28-day ban of visitation of a staff

       9      member tested positive for COVID-19 will

      10      indefinitely prevent visitation by our parents.

      11             Additionally, it's costing approximately

      12      $200,000 a month to test for over 600 staff members

      13      weekly.

      14             Our staff positivity measure is 0.64 percent,

      15      representing all asymptomatic cases, and which is

      16      far below the state average.

      17             If you took a look into the faces of our

      18      beloved children every day, wiping away their tears

      19      because they're missing their parents, unable to

      20      communicate through technology, and, further, can't

      21      understand why their families can't come see them,

      22      you would do anything to change this policy.

      23             The simple solution is to treat pediatric

      24      nursing homes the same way you treat pediatric

      25      hospitals for visitation.









































                                                                   490
       1             On May 20th, DOH issued guidance that

       2      permits two support persons at bedside at children's

       3      hospitals.

       4             We ask that you offer our children and

       5      families the same rights.

       6             We understand the need to protect public

       7      health, and we are doing our part to protect the

       8      most vulnerable amongst us.

       9             I ask that you do everything within your

      10      power to reunite our families.

      11             Let's not let another day go by where a child

      12      cannot receive the love they need from their

      13      parents.

      14             Now I would like to give the rest of my time

      15      to Rachel Amar, who will share the toll this

      16      separation has taken on her and her son, Max.

      17             RACHEL AMAR:  Hi.  My name is Rachel Amar,

      18      and I want to thank you for hearing my story about

      19      how difficult my life has been the past --

      20             SENATOR RIVERA:  I'm going to stop you for

      21      one second, Ms. Amar.

      22             Please give Ms. Amar the whole 5 minutes.

      23             Thank you.

      24             Please continue.

      25             RACHEL AMAR:  Oh, thank you.









































                                                                   491
       1             Okay.  I'm going to start again.

       2             Hi.  My name is Rachel Amar, and I want to

       3      thank you for hearing my story about how difficult

       4      my life has been the past 4 1/2 months, not being

       5      able to visit my son, Max.

       6             My hope is for all of you to understand how

       7      detrimental this is, and how it has affected the

       8      well-being of my son and my family.

       9             Max is 18 years of age and has been a

      10      resident at the center for 14 years.

      11             Max was born with a small brain stem and,

      12      therefore, he cannot breathe, move, swallow, or

      13      speak.

      14             However, he is fully cognizant of his

      15      surroundings, caretakers, and most of all, my

      16      presence.

      17             As an active parent in my son's daily life

      18      and delivery of care, it had been an atrocity to not

      19      be able to be there and provide the love and support

      20      that he depends on from me every day.

      21             Never in his lifetime has he gone without

      22      seeing me.

      23             Consequently, this has negatively impacted

      24      his emotional behavior.

      25             As a result, he has regressed with a deep









































                                                                   492
       1      decline in his behavior towards the staff.

       2             He prevents the ventilator from giving him

       3      breaths, turning blue and coding.

       4             This is Max's way of acting out when he is

       5      angry or upset.

       6             Knowing what Max is going through

       7      emotionally, I tried FaceTiming with him, but all he

       8      would do is cry and it made the situation worse for

       9      him.

      10             The nurses advised me that he rarely smiles,

      11      which is very unlike his character.

      12             Max's birthday was July 12th, and I was

      13      hopeful in seeing him based on the governor's

      14      ordinance and lifting the ban on visitation, to

      15      celebrate with him, and commend the staff for their

      16      amazing job in keeping Max and the other residents

      17      safe and virus-free.

      18             Unfortunately, I was informed of the

      19      restrictions and stipulations that again prevented

      20      me from seeing Max.

      21             The only other alternative was to visit him

      22      through a tall dark fence.

      23             I tried calling out his name, but he wouldn't

      24      even look at me.

      25             I can't imagine what he was feeling: the









































                                                                   493
       1      feeling of being heartbroken and abandoned by his

       2      mother.

       3             This cannot continue any longer.

       4             I'm pleading with all of you as a parent,

       5      which I hope you can personally understand: Max

       6      needs me to be there with him physically, to read,

       7      kiss, hug, laugh, and sing together so that his

       8      emotional well-being thrives.

       9             I can't imagine how the other families and

      10      children are coping with this unbearable separation

      11      which is a detriment to the livelihood and overall

      12      well-being of our children.

      13             I trust that you understand the severity of

      14      the situation that requires your immediate actions

      15      in resolving this crisis.

      16             Your attention to this matter is greatly

      17      appreciated.

      18             And I just wanted to show you a couple of

      19      pictures of Max and I so you will understand how

      20      much enjoyment he gets from my daily visits.

      21             So this is just, every day, we come -- I come

      22      into bed with him, and we kiss and hug, and all he

      23      does is smile like this.

      24             He laughs.

      25             We read all day after school, and he just is









































                                                                   494
       1      so happy, sitting and laughing together.

       2             And here's a picture last year of his

       3      birthday, celebrating with all the staff.

       4             Everybody's involved in his care, as well as

       5      me.

       6             I come every day, and visit him every day,

       7      and spend from 11:00 in the morning, approximately,

       8      I meet him in school, and I stay till about 6 p.m.

       9             And I haven't been able to be there, it's

      10      been almost 4 1/2 months.  And this is really

      11      devastating to me.

      12             So I really please hope that you reconsider

      13      the visitation policy.

      14             Thank you.

      15             SENATOR RIVERA:  Thank you so much, Ms. Amar.

      16             Next we will hear from Dr. Edwin Simpser.

      17             EDWIN SIMPSER, M.D.:  Thank you.

      18             Good evening.

      19             I'm Dr. Eddie Simpser, a pediatrician, and

      20      president and CEO of St. Mary's Healthcare System

      21      for Children.

      22             Thank you for giving me the opportunity to

      23      speak on behalf of New York's most vulnerable

      24      children and families.

      25             St. Mary's Healthcare System for Children a









































                                                                   495
       1      is national leader in providing specialized care to

       2      critically-ill children and young adults.

       3             We are dedicated to providing inpatient care,

       4      day health care, home care, and education services

       5      to children and young adults following acute-care

       6      hospitalization due to premature birth, illness,

       7      injury, or other critical health conditions.

       8             We're the largest post-acute provider of our

       9      kind in New York State, with a continuum of care

      10      that supports a sick child throughout their

      11      lifetime.

      12             From our inpatient facility, to home and

      13      community settings, with a highly-trained and

      14      dedicated pediatric workforce, St. Mary's is

      15      committed to improving the health and quality of

      16      life for children and young adults with special

      17      needs and their families.

      18             I'm here today to talk about our experiences

      19      with the pandemic, and in particular, a pressing

      20      issue on visitation in our pediatric skilled nursing

      21      facility.

      22             First, some background.

      23             For many years prior to the pandemic, we've

      24      been a leader in infection-control measures,

      25      establishing an exemplary track record of protecting









































                                                                   496
       1      our very vulnerable children from the spread of

       2      infectious disease, including regular viral testing

       3      of all symptomatic and at-risk children.

       4             Any encounter with an infectious disease,

       5      from a simple respiratory infection, to the novel

       6      coronavirus, can be devastating for a

       7      medically-complex child.

       8             Since the outbreak of COVID-19, we have

       9      expanded these measures, and our efforts have been

      10      extremely successful.

      11             Just like at Elizabeth Seton, to date, zero

      12      children in our facility have tested positive,

      13      positive for COVID-19, and, we've had no outbreaks

      14      of any other respiratory infections.

      15             This success has taken place against a

      16      backdrop full of extraordinary challenges.

      17             Precautionary regulations have forced us to

      18      close a number of critical programs that serve

      19      children in the community, depriving the children

      20      and their families of much-needed support, while

      21      compounding the extreme financial pressure our

      22      system is currently under.

      23             When you add the burden of COVID to the

      24      recent Medicaid cuts, we're under great duress.

      25             Since the DOH prohibited visitation to









































                                                                   497
       1      nursing homes, we have parents who, just like Pat

       2      mentioned, have not hugged their children for

       3      months.

       4             The parents of a child in a pediatric skilled

       5      nursing facility are never visitors.  They're

       6      critical partners in the care and well-being of

       7      their children.

       8             Hear the plea from one our parents who cries

       9      to our staff in pain and frustration, "I'm not a

      10      visitor.  I'm his mother."

      11             Many of our parents are newborn -- many of

      12      our patients are newborn babies transitioning from a

      13      neonatal intensive care unit right into our

      14      facility.

      15             Under the current visitation restrictions,

      16      parents would be forced to separate from their

      17      newborn upon arrival at St. Mary's, leaving many to

      18      refuse admission, and forcing many children to

      19      languish in acute-care settings while they await

      20      resolution.

      21             We have facilitated virtual visits for our

      22      parents, but these fall far short of the necessary

      23      connection between a parent and a child.

      24             Testing our staff for COVID-19 has proven

      25      itself a flawed mechanism for preventing the spread









































                                                                   498
       1      of COVID in our facility, and as a criterion for

       2      staff quarantine or visitation, as I'll outline.

       3             As of now, we can't envision a scenario where

       4      any large pediatric facility meets the current

       5      department of health criteria for having

       6      28 consecutive days without a positive case of COVID

       7      amongst our dedicated staff.

       8             At our campus, we're testing over

       9      600 clinical and support team members once a week.

      10             If 1 percent of the population is positive

      11      for COVID, we're going to have 5 or 6 positive cases

      12      a week.

      13             And it takes up to two weeks sometimes to get

      14      results.

      15             We can easily imagine a staff member who is

      16      positive, but asymptomatic, and working, until we

      17      receive the results of their test at a time where

      18      their infection and their infectivity has already

      19      passed.

      20             The important point is the continued success

      21      of our infection-control practices to prevent the

      22      spread of the virus even before we were testing all

      23      of our staff.

      24             Our parents are at the end of their rope.

      25             They're devastated, and need to us act









































                                                                   499
       1      immediately.

       2             In a time of extraordinary hardship, we can

       3      imagine few greater hardships than the pain of a

       4      parent separated from their child in need.

       5             We believe that our proven expertise in

       6      infection control and our exemplary track record

       7      warrants due consideration.

       8             Children's nursing homes are unique within

       9      the broader nursing home industry.

      10             Our children need their parents to be with

      11      them, and we would welcome a dialogue with state

      12      leadership to help unite parents with their children

      13      today.

      14             Thank you very much.

      15             SENATOR RIVERA:  Thank you so much for being

      16      with us today.  It's a very important conversation

      17      to be having.

      18             We'll get -- we'll start off with

      19      Senator Skoufis, recognized for 5 minutes.

      20             SENATOR SKOUFIS:  Thank you.

      21             And I don't expect to need 5 minutes.

      22             And I want to begin by really just expressing

      23      my gratitude for the work that you and your staffs

      24      have done over these months.  Both Elizabeth Seton

      25      and St. Mary's sound like some really exceptional









































                                                                   500
       1      places.  And, again, it sounds like you have a lot

       2      to be proud of.

       3             I do want to ask:

       4             So, obviously, visitation policy now, on

       5      August 3rd, is very different than visitation

       6      restrictions in March or April or May when the virus

       7      was at its peak or, otherwise, ravaging our state.

       8      Right?

       9             So I want to ask, were you supportive of

      10      visitation restrictions then, and you have since

      11      change your mind now that the virus numbers have

      12      decreased?

      13             And if that's the case, you know, with an eye

      14      towards the next public health crisis, I think it's

      15      important to hear from you as to what you think that

      16      threshold ought to be by which we ease restrictions,

      17      if you did support it then when the virus was more

      18      rampant than now on August 3rd.

      19             I don't know who would like to speak first to

      20      that.

      21             PAT TURSI:  Want to go, Eddie?

      22             EDWIN SIMPSER, M.D.:  Sure.

      23             So, thank you for that question.

      24             So we have a practice during outbreaks within

      25      the community, such as flu or other viral outbreaks,









































                                                                   501
       1      to begin limiting visitation well before this

       2      coronavirus pandemic.

       3             So, in fact, this year in January when the

       4      flu was pandemic, or epidemic, we actually limited

       5      visitation, but not to zero.

       6             We just limited the number of people that

       7      came in.  We made them wear PPEs and we protected

       8      our children.

       9             We certainly agreed during the height of this

      10      pandemic that we needed to restrict visitation

      11      altogether.

      12             But as you pointed out, August is not March.

      13             1 percent of the community is positive, not

      14      10 and 15 percent of community.  And, we've learned

      15      a lot about how to utilize PPEs to protect our kids.

      16             And we believe that we can safely protect our

      17      kids, limiting visitation to single individuals,

      18      doing as much outdoors as possible; a lot of what's

      19      already been proposed by the department of health.

      20             The problem we have is that we can't get

      21      28 days of negative staff with this many staff being

      22      tested every week.

      23             And we just feel that that criterion doesn't

      24      work for us, and that our track record -- Seton's

      25      track record of not having any children positive,









































                                                                   502
       1      despite the fact that staff are positive, speaks to

       2      the fact that we should be allowed to have

       3      visitation without those restrictions.

       4             PAT TURSI:  And I would just like to add

       5      that, during the pandemic, Eddie and I talk lot

       6      about this back and forth always.

       7             So, we also want to look to the CMS guideline

       8      that DOH didn't recognize for comfort care, because

       9      even during the pandemic it was only, you know,

      10      24 to 48 hours of an eminent death.

      11             All of our kids have life-limiting

      12      conditions.  Sometimes we don't even know when

      13      that's going to happen.

      14             And parents, you know, understand all our

      15      infection protocols.  They live by them, like Eddie

      16      said.

      17             We do have outbreaks other times.

      18             So, you know, to me, I think the definition

      19      of "comfort care," that would be greater even in the

      20      pandemic, should be allowed, because we had many

      21      parents that were sleeping in the building when we

      22      got the restriction, and four parents decided to

      23      stay.

      24             I know Eddie had many more than we had.

      25             And they stayed for a very long time, till









































                                                                   503
       1      they couldn't take it any longer.

       2             And one actually would have lost her job, and

       3      is, you know, in a situation where that couldn't be.

       4             So I just -- you know, the pain and anguish

       5      that we've dealt with our parents is indescribable.

       6      I can't even begin to tell you how awful.

       7             SENATOR SKOUFIS:  Thank you both.

       8             SENATOR RIVERA:  Thank you, Senator.

       9             Assembly.

      10             ASSEMBLYMEMBER BRONSON:  Yes, recognize

      11      Chair Gottfried for 5 minutes.

      12             ASSEMBLYMEMBER GOTTFRIED:  Yeah, on the

      13      question of visitation, well, one is, I think it

      14      would be useful if you had written down for us what

      15      you think the visitation policy should be.

      16             And maybe that's in your testimony, but,

      17      rather than just saying what the department does is

      18      too restrictive, if you could recommend something,

      19      that would be useful.

      20             EDWIN SIMPSER, M.D.:  Well,

      21      Assemblyman Gottfried, we actually submitted a pilot

      22      visitation plan to the department of health, and had

      23      a meeting with members of the department of health

      24      to discuss that pilot plan weeks ago.

      25             And we'll be happy to share it with you.









































                                                                   504
       1             PAT TURSI:  Yes.

       2             ASSEMBLYMEMBER GOTTFRIED:  And they have not

       3      responded, I assume?

       4             EDWIN SIMPSER, M.D.:  Correct.

       5             ASSEMBLYMEMBER GOTTFRIED:  And the other

       6      question I have is, what's the likelihood, that if

       7      we adopt your proposal, that three months from now

       8      we'll be at a hearing, and instead of family members

       9      like the ones we heard earlier talking about how

      10      terrible it was that the health department led to

      11      the death of their grandparents by letting in all

      12      those COVID-19 patients into the nursing home that

      13      the department thought were no longer contagious,

      14      but, oh, my God, look what happened, will we instead

      15      have parents coming in saying, that terrible health

      16      department relaxed these visiting restrictions, and

      17      a couple of people were visiting at St. Mary's, and,

      18      before you knew it, you know, six of our children

      19      were dead.

      20             EDWIN SIMPSER, M.D.:  So we partner with our

      21      parents all the time.  And we have a family advisory

      22      council.  I've had Zoom meetings with the family

      23      advisory council.

      24             They're ready to partner with us, wear full

      25      PPEs, get tested before they come in; whatever









































                                                                   505
       1      restrictions we want to put in place.

       2             Also, both us and Seton have a lot of

       3      experience, as I mentioned before, in controlling

       4      outbreaks.  And we're confident, that even if we

       5      were to get a child with COVID-19, that we would be

       6      able to contain an outbreak and not have the kind of

       7      outcomes that you've seen in geriatric nursing

       8      homes.

       9             We have a long track record of protecting our

      10      children from flu and many other infections, and we

      11      are confident that we'll do well.

      12             We're not cocky, but we are confident that

      13      we'll do well.

      14             And we believe in partnering with our

      15      families.

      16             When we showed our families a graph of the

      17      decrease of infections within our facility, they all

      18      said, that speaks volumes of how we have to act post

      19      COVID, not just during COVID.

      20             So we really believe that a partnership with

      21      families will protect our kids.

      22             ASSEMBLYMEMBER GOTTFRIED:  Okay.  Thank you.

      23             And if you could un-mute for a second, you

      24      know, I've -- as you probably know, I've worked with

      25      St. Mary's and Blythedale and Elizabeth Seton off









































                                                                   506
       1      and on for years, on a variety of issues, and

       2      sometimes with success, sometimes not.

       3             But everything all my colleagues said about

       4      how amazing you folks are, is certainly true.

       5             PAT TURSI:  Thank you.

       6             EDWIN SIMPSER, M.D.:  Thank you.

       7             SENATOR RIVERA:  Ditto; ditto on that.

       8             Now to the Senate, recognizing Senator O'Mara

       9      for 5 minutes.

      10             SENATOR O'MARA:  Thank you, Chairman.

      11             And thank you, Pat, Rachel, and Eddie, if

      12      I may be informal with you, for your testimony, and

      13      for the great work that you do at your facilities

      14      for our children with disabilities.  And it just

      15      truly is God's work, and I want to thank you for

      16      that.

      17             And, Rachel, to you, God bless you and your

      18      family.  I can't imagine going that length of time

      19      without being able to see my children.

      20             RACHEL AMAR:  It's hard.

      21             SENATOR O'MARA:  Just, it's heart-wrenching

      22      to even think about.

      23             But to Eddie and Pat, if you could just

      24      briefly again, I may have missed it, run through

      25      what the protocols are right now for your staff to









































                                                                   507
       1      be able to come to work?

       2             EDWIN SIMPSER, M.D.:  Go ahead, Pat.

       3             PAT TURSI:  You gonna go [indiscernible], or

       4      you want me to?  It's the same.

       5             EDWIN SIMPSER, M.D.:  Go ahead.

       6             PAT TURSI:  So they -- you know, when they

       7      come in, they have to, you know, fill out their

       8      survey.  They have to have -- you know, they have to

       9      attest that they have no signs and symptoms of any

      10      kind of illness.

      11             Also, we're being very strict about where

      12      staff are traveling, so we're monitoring that as

      13      well.  So if anybody travels, we're -- we go above

      14      the CDC requirements, and we're making everyone stay

      15      home for 14 days.

      16             We are paying staff for all of their

      17      unlimited sick time so that people don't have to

      18      worry about not having it.

      19             But in that case, we said, we're not going to

      20      pay if you decide to go travel someplace.  That's --

      21      you know, you're going to have to just stay home.

      22             They have to wash their hands, and we have

      23      plenty of Purell, and then they mask.

      24             And then they, also, during the pandemic, we

      25      just restricted it a few weeks ago, we were having









































                                                                   508
       1      our staff come in their street clothes, and then

       2      change into their uniforms.  But now that we're not

       3      in the peak of the pandemic, we've let that go.

       4             SENATOR O'MARA:  Are there testing

       5      requirements for your staff?

       6             PAT TURSI:  Once a week.

       7             SENATOR O'MARA:  Once a week?

       8             PAT TURSI:  We're doing the same thing,

       9      over 600.  I think this week we did 646.  So we're,

      10      like, in the mid-600s every week.

      11             SENATOR O'MARA:  Okay.  And how many patients

      12      do you have at your facility?

      13             PAT TURSI:  169.

      14             SENATOR O'MARA:  169 patients and over

      15      600 employees?

      16             PAT TURSI:  Yes.

      17             EDWIN SIMPSER, M.D.:  We have 124 patients.

      18             SENATOR O'MARA:  And how many employees?

      19             EDWIN SIMPSER, M.D.:  Also over 600.

      20             SENATOR O'MARA:  Okay.

      21             Now, Rachel, if I can ask you, would those

      22      requirements that were just laid out for staff be

      23      acceptable to you to be able to see your son?

      24             RACHEL AMAR:  100 percent, I would feel

      25      comfortable if the parents, you know, put on masks.









































                                                                   509
       1      And we also get our temperature taken, and get the

       2      tests taken, I would be 100 percent fine with that.

       3             SENATOR O'MARA:  I would think so.

       4             And it's just unconscionable to me that

       5      you're allowing over 600 employees into a facility,

       6      yet 150 parents can't come in and see their

       7      children.

       8             That is unconscionable, and that needs to

       9      change.

      10             Thank you all very much.

      11             PAT TURSI:  Thank you.

      12             RACHEL AMAR:  Thank you.

      13             EDWIN SIMPSER, M.D.:  Thank you.

      14             SENATOR RIVERA:  Thank you, Senator.

      15             Now back to the Assembly.

      16             ASSEMBLYMEMBER BRONSON:  Yes, I will go next.

      17             First of all, Ms. Amar, thank you so much

      18      for sharing your personal story.

      19             And, I can't even imagine what you and your

      20      family, and certainly your son, are going through.

      21             The -- first, I'm just going to request:

      22             Mr. Simpser, I believe you said that you

      23      submitted a pilot plan --

      24             EDWIN SIMPSER, M.D.:  Yes.

      25             ASSEMBLYMEMBER BRONSON:  -- to the department









































                                                                   510
       1      of health.

       2             When was that submitted?

       3             EDWIN SIMPSER, M.D.:  Three weeks ago.

       4             ASSEMBLYMEMBER BRONSON:  Okay.

       5             Would you be willing to share that with us so

       6      that we could take a look at it as we develop

       7      policy?

       8             EDWIN SIMPSER, M.D.:  Absolutely.

       9             ASSEMBLYMEMBER BRONSON:  All right.

      10             And then the other thing, and I apologize,

      11      you know, this may be naive, but, listening to your

      12      family's story, and listening to some of the other

      13      families we heard earlier, you know, we use the word

      14      "visitation."  But I'm not sure that fits.

      15             Sure, you're a mom visiting your child, but

      16      you're also a mom that is 100 percent engaged in

      17      caregiving for your child.

      18             And I'm just throwing it out there, whether

      19      or not there's a distinction we can make between,

      20      you know, visitation versus being a necessary

      21      component of the care of your child, or, when we're

      22      talking about a nursing home, a necessary component

      23      of the care of a parent or a grandparent.

      24             That being said, you know, we've recognized,

      25      and you brought it up, the feeling of isolation, or









































                                                                   511
       1      you actually referred it to as "abandonment of your

       2      mom."

       3             So, I don't know where we can make that

       4      demarcation, but I'm throwing it out to you, if you

       5      have an answer today; but if not, help us work

       6      around that.

       7             Because I think there -- that's a balancing

       8      that we need to do with care that's given by the

       9      professionals in the facility, that is supplemented

      10      and augmented by family care.

      11             So if you have a response to that, that's

      12      fine.

      13             If you don't, I'd like you to think about

      14      that a little bit.

      15             RACHEL AMAR:  Well, I just -- what I would

      16      like to say is that, you know, I do come every day,

      17      and I know all his care.

      18             So I also give his medical care.  I help and

      19      I assist the nurses.  So when they're busy and they

      20      can't change him or suction him or any type of care

      21      that he needs, I'm able to give it to him.

      22             Unfortunately, I can't, like, take him home

      23      and take care him myself because he is very

      24      challenged medically.  He's 100 percent dependent on

      25      a ventilator, so he's very fragile.









































                                                                   512
       1             But, I'm able to assist in his medical care,

       2      and, I occupy him all day.  When I go to school with

       3      him, I assist in his schooling.  We do arts and

       4      crafts projects.  There's music.  There's gym.

       5             I go with him all day.  I'm all -- with him

       6      in school.

       7             And then when we come up, we get into bed,

       8      cuddle, kiss.  And, I mean, he's the happiest kid,

       9      ever.

      10             I show you pictures smiling, happy.

      11             And when I don't come, he's really -- he's

      12      devastated.

      13             You know, I call in the morning, I call the

      14      two different shifts, and they tell me he's upset,

      15      he's angry.  He gets -- he really feels the lack of

      16      my presence there.

      17             And, I mean, I could definitely say that, in

      18      his medical care, I'm part of his medicine: he needs

      19      me.

      20             ASSEMBLYMEMBER BRONSON:  Thank you.

      21             EDWIN SIMPSER, M.D.:  You know, there's a

      22      provision in the visitation restrictions on medical

      23      necessity, and allowing visitation for medical

      24      necessity.

      25             And I guess that's open to interpretation.









































                                                                   513
       1             We have had parents visit for medical

       2      necessity when we're transitioning children home.

       3             We discharged 35 children over the course of

       4      this pandemic to their homes.  And those parents,

       5      obviously, had to come in so they could learn how to

       6      care for their children.

       7             I would think there's an opportunity to

       8      interpret "medical necessity" for pediatric nursing

       9      homes the same way, as Pat pointed out, medical

      10      necessity has been interpreted for pediatric

      11      hospitals, and allowing parents to be there for

      12      pediatric hospitals way back in May.

      13             PAT TURSI:  They also have, the DOH guidance

      14      talks about the support person.

      15             And the support person they have for both,

      16      you know, persons of intellectual disabilities as

      17      well as the medical-complex.

      18             And that already is in the DOH guidance, and,

      19      it's already spelled out.

      20             Now, you know, Eddie and I both agree that

      21      there needs to be, you know, maybe other things that

      22      we would want to do and add into that visitation

      23      policy for hospitals.  But it was very strict during

      24      COVID.

      25             So, you know, the strictness doesn't bother









































                                                                   514
       1      us.  It's, we have to get the parents connected to

       2      their children again.

       3             ASSEMBLYMEMBER BRONSON:  Okay.  Thank you.

       4             I think that gives us some stuff to work

       5      with.

       6             Thank you.

       7             SENATOR RIVERA:  Thank you, Assemblymember.

       8             We don't have any further questions from the

       9      Senate at this time.

      10             ASSEMBLYMEMBER BRONSON:  Okay, then next we

      11      will go to Chair McDonald for 5 minutes.

      12             ASSEMBLYMAN McDONALD:  Thank you.

      13             And to Pat and to Eddie, thank you for your

      14      testimony.

      15             To Rachel, you know, the expression, "a

      16      picture is worth a thousand words," this was worth

      17      about 100,000 words.

      18             I don't think there wasn't anybody here who

      19      wasn't moved.

      20             We've been moved all daylong in many aspects;

      21      heart-wrenching stories, and mostly have been

      22      focused in the gerontology part of people's lives.

      23             But, this hits home too.

      24             We know the great work that both

      25      Elizabeth Seton and St. Mary's has done for probably









































                                                                   515
       1      longer than Dick Gottfried's been around.  That's

       2      been a long damn time.

       3                [Laughter.]

       4             ASSEMBLYMAN McDONALD:  So we know what great

       5      work you do.

       6             You know, Eddie, in your letter -- or, your

       7      testimony, you mentioned about how, you know, you've

       8      had, zero, zero positives, of any of the children

       9      during this whole time, which is remarkable when you

      10      really think about it.

      11             And you mentioned that you've been -- your

      12      organization has been nationally recognized.

      13             Is that through some kind of accrediting

      14      body, or, what is it?

      15             EDWIN SIMPSER, M.D.:  So, the [indiscernible]

      16      Association of Childrens Nursing Homes throughout

      17      the country.  And, we did a number of studies,

      18      working with epidemiologists at Columbia.  Actually,

      19      Seton was involved in some of those studies as well.

      20             And we then presented those studies

      21      nationally, and, actually, brought our

      22      infection-control practices that we have here in

      23      New York, to facilities around the country.

      24             And that's why we use the term "nationally

      25      recognized."









































                                                                   516
       1             ASSEMBLYMAN McDONALD:  Well, it's -- you

       2      know, it's interesting, you know, Member Godfried

       3      raised a good point.

       4             You know, if the pendulum swings in another

       5      direction in three months, is everyone going to be,

       6      you know, pointing a finger at the legislature and

       7      the State and say, Why did you let this happen?

       8             But I think it's very clear, and I think,

       9      Rachel, you would agree with me, because I work very

      10      closely with the intellectual development [sic]

      11      disability community.

      12             Max, and many other children, they don't have

      13      a way to understand what's going on.  They just

      14      don't know.  Their daily lives are interrupted, and

      15      they don't understand it.  They think that you've --

      16      this is the part that really bothers me -- they

      17      almost feel like you've abandoned them.

      18             And we know that's not the case.

      19             So, you know, we appreciate this testimony.

      20             I know, if you were around when we started

      21      about 9 or 10 hours ago, whenever it was, many of

      22      these -- many of these members brought this up to

      23      the commissioner.  I know that many members of

      24      department of health are monitoring this right now.

      25             Your visit was not for naught.









































                                                                   517
       1             And I want to thank you for your testimony.

       2             RACHEL AMAR:  Thank you so much.

       3             SENATOR RIVERA:  And I assure you, it was

       4      longer than five hours, Assemblyman, so much so,

       5      that I missed one of my colleagues who at once was

       6      online to ask questions.

       7             So my apologies.

       8             Next will be 5 minutes for

       9      Senator Sue Serino.

      10             SENATOR SERINO:  Thank you, Mr. Chairman.

      11      I appreciate that.

      12             And, Rachel, Eddie, Pat, thank you so much

      13      for being here today.

      14             Oh, my God, you've touched all of our hearts,

      15      as you've heard everybody say.

      16             But I just have a couple of questions.

      17             Throughout this time, have any of you reached

      18      out to the governor's office or DOH directly, and

      19      did you receive a response?

      20             I know, Eddie, you had said about your plan.

      21             But...

      22             EDWIN SIMPSER, M.D.:  So we have had two

      23      meetings with senior members of the department of

      24      health: one that we had individually, and one that

      25      our representatives have had with senior members of









































                                                                   518
       1      the department of health.

       2             We've asked for a meeting with the

       3      commissioner.

       4             We've had numb -- our representatives have

       5      had numbers of conversations with members of the

       6      second floor.

       7             I think everybody is compassionate and

       8      aware, but I think everybody is afraid.

       9             As Chairman Gottfried pointed out, I think

      10      the commissioner and the department of health are

      11      very anxious.

      12             And the problem is, that we're regulated and

      13      considered a nursing home; whereas, our kids are not

      14      like the residents in geriatric nursing homes, and

      15      our staffing and our approach to care is just

      16      different.  And we ought to be treated differently,

      17      and that's the argument we're trying to make.

      18             I understand that they're frightened.  But --

      19      and we were anxious, frankly, coming forward and

      20      being so public, and making these statements.  But,

      21      our parents are at a wits' end and we're at our

      22      wits' end because of that.

      23             PAT TURSI:  Well, we had six surveyors shows

      24      up today and did a second infection-control survey

      25      that we just flew through.









































                                                                   519
       1             So, you know, I know that, you know, everyone

       2      is concerned.  But we're doing a great job, and they

       3      commended us today for it.

       4             And I also think that parents coming in with

       5      admissions, like Eddie said, we've had, you know,

       6      they come from Blythedale.  That's one of our major

       7      referrals here.  We're very close to Blythedale.

       8             And they're able to visit there, and then

       9      they had to leave a two-year-old at the door, with

      10      complete strangers.

      11             And we admitted a child like four weeks ago,

      12      and another one two weeks ago.  And parents aren't

      13      able to come in with their child.

      14             I just don't know, it just doesn't seem --

      15      it's not right.

      16             SENATOR SERINO:  I can't -- I can't even

      17      imagine, like Rachel, watching you with your son,

      18      it's just absolutely beautiful, and just touched my

      19      heart.

      20             So to not get any response is absolutely

      21      horrific.

      22             You know, and I can understand people are

      23      nervous.  Absolutely.  But at least respond.  You

      24      know, talk it through.  That's all anybody is asking

      25      about, through this pandemic, no matter what area









































                                                                   520
       1      we're speaking about.

       2             And, Rachel, did you yourself reach out,

       3      or -- to the governor [indiscernible]?

       4             RACHEL AMAR:  I reached out twice to the

       5      governor's office.  One time I was able to speak to

       6      somebody, who connected me to somebody else, who

       7      gave me another number, who connected me to somebody

       8      else.

       9             And at the end, they called me back.  And

      10      I filled out like this application -- or, this form

      11      in regards to filing a complaint.  And they said

      12      that it wasn't in their jurisdiction.

      13             And then I called the department of health

      14      who said that there was nothing that they could do.

      15             So...

      16             SENATOR SERINO:  Yes, so who are you supposed

      17      to go to.  Right?

      18             RACHEL AMAR:  Right.

      19             SENATOR SERINO:  That is absolutely horrible.

      20             RACHEL AMAR:  Always a fight, it really is.

      21             SENATOR SERINO:  Yeah.

      22             And in the event of a second wave, what would

      23      be at the top of your priority list -- I understand

      24      visiting -- that you would want to -- for the State

      25      to do differently?









































                                                                   521
       1             RACHEL AMAR:  I mean, I think that, if the

       2      parents are tested just like the employees, and we

       3      limit the amount of parents that come in, I think

       4      it's the same thing.

       5             What's the difference of a parent coming in

       6      or an employee coming in?

       7             We don't know what the employees are doing

       8      during the day.

       9             If everybody's getting tested, wearing the

      10      same PPE, take the same safety precautions, it's the

      11      same thing.

      12             SENATOR SERINO:  And I can tell you that I've

      13      had countless parents that have called me about this

      14      very subject, so I'm asking questions on their

      15      behalf as well.

      16             My heart goes out to all of you, and thank

      17      you for all of the hard work that you do.

      18             And God bless you, Rachel.

      19             RACHEL AMAR:  Thank you, thank you.

      20             SENATOR RIVERA:  Thank you, Senator.

      21             And, again, apologies for not seeing your

      22      name earlier.

      23             Back to the Assembly.

      24             ASSEMBLYMEMBER BRONSON:  Next we're going to

      25      go to Assemblymember Missy Miller for 3 minutes.









































                                                                   522
       1             ASSEMBLYMEMBER MILLER:  Thank you.

       2             I also want to thank the three of you.

       3             Rachel, I'm a mom of a medically-fragile

       4      child.  I have him at home with me.

       5             I cannot even imagine what you're going

       6      through.  I can't -- I won't get through a sentence

       7      if I try to imagine it.

       8             So, just know that I am thinking of you.

       9             In full disclosure, I've known Eddie for far

      10      too many years.  I won't age us both.

      11             But, a very important point has been brought

      12      up, that I think department of health and the

      13      governor's office really, really needs to hear here,

      14      is that, the parents who keep saying they're not

      15      visitors, they are a very, very important part of

      16      the care team.  They are part of this child's team.

      17             And by keeping them out, they're keeping a

      18      part of that child's care team away from them.

      19             And it's -- it's one of the most important

      20      parts of that care team.

      21             You know, years and years I've been doing

      22      this.  I trained pediatric residents on how to

      23      deliver chronic care.

      24             And I fully believe that the department of

      25      health has missed this entirely.  They just aren't









































                                                                   523
       1      equipped to understand this.

       2             And so this really needs to bring a light to

       3      this, that -- and the points of, you know, a staff

       4      member, 600 staff members, can go in and out every

       5      day, and go home, and ride public transportation.

       6             I can guarantee you that parents are taking

       7      more precautions.  They are not -- you know, they're

       8      going to make sure that they are not the ones

       9      bringing in any kind of virus, and would happily

      10      submit to testing every day if necessary.

      11             I think, also, there was a point that was

      12      brought up earlier, even on other segments, that the

      13      testing that's required, what good is that testing

      14      if you -- if it takes five, six, seven days to get a

      15      result, and then throws you back all the way back to

      16      the beginning of your 28 days all over again?

      17             It's really just unacceptable.

      18             So, thank you for being here.  Thank you for

      19      voicing these concerns.

      20             I think it's disgusting that the department

      21      of health has waited three-plus weeks now, even with

      22      their anxieties, about what would happen if, you

      23      know, somebody were to get sick.

      24             I think a zero percent positive of patients

      25      is a pretty significant, impressive, you know, note









































                                                                   524
       1      to pay attention to.  It should earn -- it should

       2      earn their respect, and it should get their

       3      attention at the very least.

       4             I myself have been doing my part by badgering

       5      them to answer this, and I will continue to do so.

       6             So, thank you.

       7             RACHEL AMAR:  Thank you.

       8             SENATOR RIVERA:  Thank you so much.

       9             We don't have any other further questions

      10      from the Senate at this time.

      11             ASSEMBLYMEMBER BRONSON:  We will then go next

      12      to Assemblymember Brian Manktelow, and Brian will

      13      have 5 minutes.

      14             ASSEMBLYMEMBER MANKTELOW:  Thank you,

      15      Chairman.  I'll keep it short.

      16             Doctor, just a quick question for you.

      17             Earlier on, you had said something about,

      18      there's a lot of room for -- or, some room for

      19      interpretation on the [indiscernible].

      20             Can you expound on that just a little bit for

      21      me?

      22             EDWIN SIMPSER, M.D.:  Well, the terminology

      23      is "medical necessity."  There are two words in the

      24      "visitation restrictions."

      25             One is -- that would allow people to come in.









































                                                                   525
       1             One is "compassionate care," and the other is

       2      "medical necessity."

       3             "Compassionate care," the DOH seems to

       4      interpret as end-of-life care.

       5             And as Pat pointed out, sometimes that's very

       6      challenging for us to know when a child is going to

       7      go down.

       8             We actually had a baby whose parents didn't

       9      see him for three months, who got sick, and in

      10      24 hours died.

      11             We got them in before he died, and they got

      12      to hold him, but they missed three months of his

      13      life.

      14             Because it's hard to know, and we're nervous

      15      about breaking the rules at the same time.

      16             The same with medical necessity, what's

      17      "medical necessity"?

      18             How do you interpret "medical necessity"?

      19             And, I'm ready to argue, and I'm happy to

      20      have the argument with the commissioner, frankly,

      21      that parents are medically necessary to be at the

      22      child's bedside.

      23             But that's not how we've interpreted it up

      24      until now, except for children who we're planning on

      25      discharging.









































                                                                   526
       1             ASSEMBLYMEMBER MANKTELOW:  You said you're

       2      afraid to break the rules, or [indiscernible]

       3      something.

       4             What would happen if you broke the rules;

       5      what are you talking about?

       6             EDWIN SIMPSER, M.D.:  Well, we are certifying

       7      every week/our administrator is certifying every

       8      week that we are following all of the governor's

       9      executive orders and all of the DOH directives.

      10             We are subject to fines.  Our administrator

      11      could be subject to losing her license.

      12             So, you know, we're anxious about not

      13      following the rules, and interpreting things

      14      differently than how they've been interpreted

      15      throughout the industry.

      16             ASSEMBLYMEMBER MANKTELOW:  All right.  Thank

      17      you the, Doctor.

      18             Rachel, could I ask you a question really

      19      quickly, please?

      20             RACHEL AMAR:  Sure.

      21             ASSEMBLYMEMBER MANKTELOW:  And thank you for

      22      your words about your son.  I don't want talk a lot

      23      because I'll start crying.

      24             So, in your eyes right now, what's the

      25      hardest thing going -- what's the hardest thing









































                                                                   527
       1      right now, at this point in your son's life, that's

       2      going on today, that you feel is the hardest thing

       3      for him?

       4             RACHEL AMAR:  I mean, the -- well, the

       5      hardest thing is that, he doesn't see me.  I mean,

       6      he's used to seeing me.  I come, like, seven days a

       7      week, every single day.

       8             And, for him, that's all he knows.  He

       9      doesn't like change.  He likes me to be there.  Like

      10      I said, I sit in bed with him.

      11             He doesn't even like when people come,

      12      because, you know, obviously, people come over to

      13      the bedside, they want to talk with me.  He gets so

      14      angry, that he starts turning blue.  And they

      15      already know, Okay, Max, sorry.  We won't talk to

      16      mommy.

      17             He -- you know, 24 hours a day, 7 days a

      18      week, he's living in this facility.  And when I'm

      19      there, he wants my time, and he wants me.

      20             And it's understandable, and he deserves it.

      21             ASSEMBLYMEMBER MANKTELOW:  So, as a parent,

      22      you're willing to take the risk of opening up the

      23      doors and allowing you as a mother, into his room?

      24             RACHEL AMAR:  I mean, obviously, I'm very

      25      scared.









































                                                                   528
       1             But, I have been sitting home the past

       2      4 1/2 months.  I don't -- I go out maybe once a week

       3      to go to the supermarket.  I don't go anywhere.

       4      I don't have anybody in my house.  I'm, like,

       5      sitting, waiting, like, on-call for -- to get the

       6      call, that I'm going to be able to go and visit him.

       7             So I haven't been doing anything.

       8             And, I mean, obviously, if I will be allowed

       9      in, I will take even stricter precautions,

      10      because -- I mean, you know, this -- but the fact

      11      that employees are coming in, I mean, I don't think

      12      they're going to be doing anything different than

      13      I'm going to be doing.

      14             So I think that things should be okay, and

      15      I know he really needs me.

      16             So -- especially when I FaceTime him, and

      17      he's so sad and he's crying, and, I mean, just

      18      breaks my heart.

      19             ASSEMBLYMEMBER MANKTELOW:  Absolutely.

      20             I -- I can't imagine not speaking to my kids.

      21             RACHEL AMAR:  Yeah.

      22             ASSEMBLYMEMBER MANKTELOW:  So thank you all

      23      for your testimony.

      24             And I think our job as legislators is to make

      25      sure we take your testimony, and let's not wait









































                                                                   529
       1      two weeks, three week, four week, let's make sure

       2      something happens sooner.

       3             We need to get you back to see your children.

       4      We need to open these things up.

       5             And I feel the safety part is there from you

       6      and the staff members, and I will be pushing for

       7      that from the Assembly side for sure.

       8             So thank you all for your testimony.

       9             PAT TURSI:  Thank you.

      10             RACHEL AMAR:  Thank you.

      11             SENATOR RIVERA:  Thank you, Assemblymember.

      12             You've got one last questioner, I believe?

      13             ASSEMBLYMEMBER BRONSON:  I do.

      14             Assemblymember Tom Abinanti, 3 minutes.

      15             ASSEMBLYMEMBER ABINANTI:  There we go.

      16             Thank you.

      17             I guess, again, maybe I'll be the last --

      18      except for the Chair, I'll be the last one.

      19             But, Eddie and Pat, I want to thank you for

      20      coming in, and possibly risking the wrath of the

      21      health department.

      22             And, Rachel, thank you for having the courage

      23      to come forward and talk.

      24             Like Missy Miller, I have a child with a

      25      disability.  My child, fortunately, is running









































                                                                   530
       1      around.  He's got autism.

       2             And I can see, if I'm just away at Albany for

       3      a few days, he very much misses me, because we've

       4      changed the style.

       5             I can't imagine what your son is going

       6      through.

       7             I agree with your comments, Eddie and Pat,

       8      that you should be able to have the same rules as

       9      Blythedale, which is in my district.

      10             You know, I've been hearing from a lot of

      11      people about all types of congregate care, where

      12      parents have been the deprived of being able to see

      13      their children; their children have been deprived of

      14      being able to see their parents.

      15             We're struggling with, what is this concept?

      16             Is it a visiting, whatever?

      17             From my point of view, it's parenting.

      18             As you said, you're part of the care team.

      19             I think this is a discrimination against

      20      people with disabilities, because people with

      21      disabilities are being deprived of the right to have

      22      part of their care team there because they're

      23      related to the care team.

      24             And I find it ironic.

      25             I tried to get, for one of the parents,









































                                                                   531
       1      additional Medicaid payment, because she was a

       2      nurse, and she was taking care of her son, when she

       3      couldn't get other nurses who were -- and she had

       4      approval under Medicaid for this service.

       5             But the response was:  Well, she's a parent.

       6      Why should she get paid to take care of her son?

       7      This is just parenting.

       8             And now, on the other side, you're trying to

       9      go parent your child, and you're being told you

      10      can't because you're a parent, because -- because

      11      he's in this institution and you can't go there.

      12             So -- it's just -- it makes no sense.

      13             And, I'm very, very disappointed that the

      14      health department doesn't understand people with

      15      disabilities.

      16             And the governor today, oh, the governor was

      17      really paying attention to what we were doing.

      18             I was checking the news.

      19             What did the governor do today?

      20             Well, he announced that he was signing the

      21      New York Child Victims Act.  Very, very important.

      22             But, this hearing is as important also.

      23             He could have waited till tomorrow to sign

      24      that.

      25             And he spoke about openings.









































                                                                   532
       1             He wasn't opening your institutions.  He was

       2      opening schools that's going to happen in September.

       3             And then he legalized frozen desserts which

       4      are infused with liquor.

       5             He did everything possible to divert

       6      attention from this hearing today, because he knows

       7      that his administration is not doing the right

       8      thing.

       9             So I appreciate all of you coming forward.

      10             We're all together on this.

      11             I join my colleagues, we're going to push

      12      real hard, because this is insane, this is inhuman.

      13             This is a mistake by this administration, and

      14      it's got to change.

      15             Thank you for coming forward.

      16             RACHEL AMAR:  Thank you.

      17             SENATOR RIVERA:  Thank you, Assemblymember.

      18             And on behalf of all of us, we again thank

      19      you for your testimony here today.

      20             And I assure you that this is not falling on

      21      deaf ears.

      22             It's -- there are things that are already

      23      moving.  I've already gotten a couple of messages

      24      about plans that are moving around, and what have

      25      you.









































                                                                   533
       1             So thank you so much for being here, and,

       2      have a great, wonderful evening.

       3             EDWIN SIMPSER, M.D.:  Thank you very much.

       4             PAT TURSI:  Thank you so much.

       5             RACHEL AMAR:  Thank you.

       6             SENATOR RIVERA:  Moving on to

       7      Panel Number 8 --

       8             I see the glimmer at the end of the tunnel.

       9      Let's keep powering through.

      10             -- we have:

      11             Beth Finkel, the New York State Director of

      12      AARP;

      13             And, Judith Grimaldi, a member of the

      14      New York State Bar Association's Elder Law Section

      15      Task Force.

      16             ASSEMBLYMEMBER GOTTFRIED:  And do you both

      17      swear or affirm that the testimony that you're about

      18      to give is true?

      19             OFF-SCREEN TECHNICIAN:  One second,

      20      Assemblymember.  I'm going to transfer them over

      21      with their cameras.

      22             SENATOR RIVERA:  Yes.

      23             Make sure you turn on your cameras, both of

      24      you folks.

      25             BETH FINKEL:  Hi.









































                                                                   534
       1             SENATOR RIVERA:  Yep, there's both people.

       2             ASSEMBLYMEMBER GOTTFRIED:  Okay.

       3             Do you both swear or affirm that the

       4      testimony that you're about to give is true?

       5             BETH FINKEL:  Yes.

       6             JUDITH GRIMALDI:  I swear, yes, I do.

       7             ASSEMBLYMEMBER GOTTFRIED:  Okay.

       8             SENATOR RIVERA:  Ms. Finkel.

       9             BETH FINKEL:  Okay.

      10             Thank you very much.

      11             I want to thank you all for all the work that

      12      you have all done during this pandemic to help

      13      New Yorkers push forward in these unprecedented

      14      times.

      15             I know that we're all concerned about a

      16      possible second wave on the horizon.

      17             We can never let this tragedy happen again.

      18             6300 deaths occurring in adult long-term-care

      19      facilities, clearly, the State's focus on the onset

      20      of the pandemic was really focused on hospitals, not

      21      on the adult residential, facilities, communities.

      22             And even though the virus's first strike was

      23      a nursing home in Washington State, so it's not like

      24      we didn't know that this was going to be coming.

      25             Building hospital-bed capacity and securing









































                                                                   535
       1      ventilators was critical, but our focus and planning

       2      should have included nursing homes and

       3      long-term-care facilities, which has some of

       4      society's most vulnerable, many of whom have

       5      preexisting conditions.

       6             And I know that all of you know this so well,

       7      and I know that you've all been working in the

       8      Assembly and in the Senate so hard to try to help

       9      people in long-term care.

      10             AARP joined with the Urban League,

      11      Asian-American Federation, NAACP, and the Hispanic

      12      Federation, and 1199 SEIU, to ask Governor Cuomo to

      13      create a long-term-care COVID task force, working

      14      with consumers, long-term-care providers, home-care

      15      agencies, and unions.

      16             It would be modeled on the successful

      17      approach the governor took to coordinate New York's

      18      public and private hospital systems.

      19             We need real planning and real coordination.

      20             We also asked the governor to ensure that the

      21      long-term-care system received adequate supplies of

      22      PPE.

      23             The governor did not establish such a task

      24      force or release a coordinated plan for the

      25      long-term-care system, to thwart future pandemics,









































                                                                   536
       1      or, a second wave of the COVID pandemic.

       2             That's why we're supporting Senator May's and

       3      Assemblywoman Cruz's bill to establish a

       4      long-term-care task force to examine the state of

       5      long-term care, both home-based and facility-based,

       6      and to consider potential models for improvement.

       7             We believe this task force should certainly

       8      look at current staffing levels, as we heard so much

       9      today in all the testimony that came before me, and

      10      any possible supply-chain issues for PPE in the

      11      future.

      12             This bill passed the Senate two weeks ago,

      13      and awaits action in the Assembly.

      14             AARP strongly believes that family caregivers

      15      should be a part of this task force since they play

      16      such an integral role in our long-term-care system.

      17             While AARP fully recognizes the necessity of

      18      shutting down nursing homes to visitation by

      19      families, we also understand the devastating impact

      20      that this has had, both on the families and their

      21      loved ones in nursing homes, since family members

      22      often carefully monitor their loved one's health

      23      status, and are often the first line of defense in

      24      identifying key areas of concern to the facility

      25      staff.









































                                                                   537
       1             Not being able to visit a loved one in

       2      person, and then, not being able to communicate with

       3      them during this time, has been one of the most

       4      frequent complaints that we have heard from our AARP

       5      membership.

       6             And I know you all know this, but, we have

       7      over 2-1/2 million members in New York State, so

       8      we've been hearing from a lot of them, and they're

       9      really upset.

      10             Many facilities failed to provide regular and

      11      effective opportunities for virtual visitation.

      12             We even heard stories that the only

      13      communication that a family received was that their

      14      loved one had died of COVID.

      15             We are grateful that the legislature passed

      16      and Governor signed into law legislation requiring

      17      communication protocols for nursing homes, including

      18      virtual visitation in the future.

      19             But while the governor dedicated $1 million

      20      for technology necessary to implement the

      21      virtual-visitation program, media reports indicate

      22      that very few nursing homes are actually opening up

      23      for visits.

      24             And this issue certainly needs more attention

      25      by the legislature, and the State, to make sure









































                                                                   538
       1      families can see their loved ones as soon as

       2      possible.

       3             AARP strongly recommends that the

       4      long-term-care ombudsman program be improved, by

       5      hiring more professional staff to be trained and

       6      sent to more nursing homes throughout the state.

       7             We certainly heard a lot about the ombudsman

       8      program.  Currently the program relies on

       9      volunteers.

      10             I want to thank you all for the steps forward

      11      by repealing certain legal immunity for nursing

      12      homes, but repealing nursing home and long-term-care

      13      facility immunity must be full and retroactive.

      14             AARP is very concerned that the 6300 families

      15      who lost loved ones do not have access to courts;

      16      and, therefore, do not hold nursing homes

      17      accountable.

      18             SENATOR RIVERA:  Thank you, Ms. Finkel.

      19             Now Ms. Judith Grimaldi.

      20             JUDITH GRIMALDI:  I'm looking at my notes,

      21      and I noticed I started it off with, Good morning.

      22             So I have to change it to, Good evening, or

      23      maybe even Good night.

      24             I was optimistic.

      25             SENATOR RIVERA:  You were such a positive









































                                                                   539
       1      beam of light.

       2             JUDITH GRIMALDI:  I'm not going to go --

       3      I could just say "ditto" to everything that Beth

       4      just said.  And I -- so I'm going to skip quite a

       5      bit, but I want to tell you one graphic story.

       6             I'm an elder-law attorney, and I work in

       7      Brooklyn.  I'm actually on my local community's

       8      age-friendly, but I wear many hats, having been a

       9      past chair of the elder-law section of the state

      10      bar, and the past chair of the city bar, and the

      11      past chair -- past chairs of many things.

      12             But I'm going to get right down to the story

      13      of the Ling family.

      14             You would enjoy meeting the Ling family.

      15      They're warm, they're kind, and they're capable, and

      16      they lost their mother.

      17             There are three professional children whose

      18      mother, Linda Ling, who lived independently,

      19      completely fine, on her own, in her Lower Manhattan

      20      apartment.  And she fell, broke her pelvis --

      21      wow! -- and ended up in -- right in your district,

      22      Chairman Gottfried -- she ended up in Gouverneur

      23      Hospital, Health And Hospital Corporation's 295-bed

      24      facility.  And -- right down in -- on 227 Madison

      25      Street.  She lived in Lower Manhattan as well.









































                                                                   540
       1             Right at the start of the outbreak, she

       2      entered the facility on March 16th.  She died on

       3      April 23rd.

       4             She was admitted to the home with a broken

       5      pelvis.  She was fine, she was optimistic:  I'm

       6      going to get through rehab and I'm going home.

       7             Unfortunately, it was downhill from day one.

       8             Mrs. Ling used to speak to her daughter every

       9      day.  It was their touchstone, it was how they kept

      10      in touch, and how she stayed alert and happy and

      11      connected.

      12             During this period, she talked to her

      13      daughter 12 times.

      14             During these weeks, the family had attempted

      15      to contact her, with the social workers, with the

      16      nursing staff, with the administration.  It all fell

      17      for nothing.

      18             They kept saying, I need to speak to her,

      19      I need to see her.  What's going on?

      20             They said, Oh, she's fine, she's fine.

      21             Yet, when she did speak to her mother, all

      22      her mother would say is, They don't care here.  They

      23      don't care.  They are don't care if I have pain.

      24      They don't care, anything.

      25             This proved to be true.









































                                                                   541
       1             The daughter asked for psychological

       2      evaluation for her mother, an assessment of why her

       3      mother was failing to thrive, failing to eat, and

       4      the treatment of her mother's overall depression.

       5             They said, We'll do that.

       6             But on April 3rd, three weeks after her

       7      mother's admission to the home, the family learned

       8      that her mother wasn't participating in any physical

       9      therapy.  That she had lost her ability to walk and

      10      transfer.

      11             This is a shock to the family.

      12             In addition, she was losing weight, and she

      13      needed two persons to assist her with all forms of

      14      transfer.

      15             This is a woman that was fine, until she

      16      fell.

      17             Their mother was wasting away and they could

      18      do nothing to stop it.

      19             They would have been willing, as we heard

      20      from other people, to move heaven and earth to help

      21      their mother; but the system blocked.

      22             They asked, Could we hire someone, to bring

      23      someone in, to make sure that she is connected,

      24      because she can't use the FaceTime, she couldn't get

      25      to us?









































                                                                   542
       1             The family said -- were refused.

       2             And then on April 7th, they learned that she

       3      was going to go home.  They had got a discharge

       4      notice.  They were thrilled.

       5             And when the -- when she -- when the daughter

       6      called on April 8th to say, "Well, what's going on?

       7      I'm ready, I'll take my mother home," they learned,

       8      no.

       9             There was no social worker on staff.  She was

      10      out sick.

      11             There was a substitute social worker who

      12      didn't know her mother.

      13             There was a substitute nurse that didn't know

      14      her mother.

      15             The psychological evaluation never happened

      16      because there was no longer a psychologist on staff.

      17             The physical therapy was discontinued.

      18             And, all they were going to concentrate now

      19      on was her mother's failure to eat and worsening

      20      bedsores.

      21             There was no rehabilitation.  There was just

      22      maintenance.

      23             And she was -- they were just completely

      24      frustrated.

      25             And then they got a call, finally, on









































                                                                   543
       1      April 21st, that their mother was being rushed to

       2      the hospital.  Her condition was worsening.

       3             She was admitted to New York Presbyterian in

       4      Lower Manhattan for blood work, testing, and

       5      suspected COVID.

       6             And on April 24th, she died, not of COVID,

       7      but an untreated urinary tract infection.

       8             The reason for Mrs. Ling's death gives

       9      evidence to something we've known all along.

      10             As an elder-law attorney, people would ask

      11      me, What nursing home would you recommend, Judy?

      12             And, sadly, my answer was always:  None.

      13             None.

      14             Because I couldn't feel confident that anyone

      15      was really going to give the kind of care that

      16      I would have wanted for my mother.

      17             So this story tells you the story of the

      18      home's failure to give, not COVID treatment, but,

      19      primary care, the core reason that they were there.

      20             It was the isolation, poor care, lack of

      21      health monitoring, overstressed and inadequate

      22      systems, and a staff at a nursing home that was

      23      overworked, that's what killed Mrs. Ling.

      24             And there's just one --

      25             SENATOR RIVERA:  If you could wrap up, since









































                                                                   544
       1      your time has expired.

       2             JUDITH GRIMALDI:  Yes.

       3             -- the one thing that hurt the family more

       4      than anything, when they collected her belongings,

       5      they found, they were shaken and angered to find,

       6      that the small album they had left her, and all the

       7      mail they had sent her, had never been delivered to

       8      Mrs. Ling.  She never saw any of those things, the

       9      things that would have given her the ability to

      10      hope.

      11             So we as an elder-law community are ready to

      12      roll up our sleeves and work with you.

      13             SENATOR RIVERA:  Thank you so much --

      14             JUDITH GRIMALDI:  We want --

      15             SENATOR RIVERA:  Thank you so much,

      16      Ms. Grimaldi.

      17             JUDITH GRIMALDI:  Thank you.

      18             SENATOR RIVERA:  Assembly leads off

      19      questioning this time.

      20             ASSEMBLYMEMBER BRONSON:  Yes, I recognize

      21      Chair Gottfried for 5 minutes.

      22             ASSEMBLYMEMBER GOTTFRIED:  Yeah, at the risk

      23      of jumping the gun on what I assume would be

      24      Assemblymember Ron Kim's question, if Mrs. Ling's

      25      family felt that she was given substandard care, and









































                                                                   545
       1      that somebody ought to be liable for giving her

       2      substandard care, below the standard of care of the

       3      community, thanks to Article 30-d of the Public

       4      Health Law that was enacted as part of this year's

       5      budget, unless they could prove gross negligence or

       6      intentional misconduct, they'd be locked out of

       7      court.

       8             JUDITH GRIMALDI:  Right.

       9             ASSEMBLYMEMBER GOTTFRIED:  And even if they

      10      wanted to allege that the nursing home had violated

      11      departmental regulations, the nursing home would be

      12      off the hook unless the department could prove

      13      intent misconduct or gross negligence.

      14             Do I have that right?

      15             And is there something that should be done

      16      about that?

      17             JUDITH GRIMALDI:  I -- if it's being directed

      18      to me, yes, you have that right.

      19             And, that's one of the efforts that our -- of

      20      the New York State Bar's Funded Task Force.

      21             And we're going to be working on -- and maybe

      22      with you, Assemblymember -- legislation to undo some

      23      of that budgetary, I think, mis-oversight of what

      24      was done -- I don't know why it was done.

      25             The nursing home representatives who spoke









































                                                                   546
       1      this morning said, they didn't ask for, they didn't

       2      lobby for it.

       3             So who is lobbying for it; who made that

       4      happen?  And can it be undone?

       5             So, we're -- as the state bar we're looking

       6      to work with you and see if we can undo that

       7      legislation -- or, that budgetary regulation.

       8             ASSEMBLYMEMBER GOTTFRIED:  Yeah.

       9             Thank you.

      10             That's it for me.

      11             SENATOR RIVERA:  Thank you so much,

      12      Assemblymember.

      13             Questions leading off in Senate by

      14      Senator May, recognized for 5 minutes.

      15             SENATOR MAY:  Thank you.

      16             And it's great to see you both, hi.

      17             Thank you for the shout-out for my bill about

      18      the long-term task force.  I hope that Harry Bronson

      19      was listening, and can bring that up in his

      20      committee in the Assembly.

      21             I also wanted to mention, I have a nursing

      22      home virtual visitation bill that you might take a

      23      look at.

      24             But I wanted to use that to jump off as a

      25      question about, family caregivers.









































                                                                   547
       1             You who probably heard the discussion earlier

       2      about the issues about family members, and,

       3      visiting, and some potential designation of a family

       4      caregiver.

       5             Do you have thoughts about that, what -- what

       6      we could and should do?

       7             BETH FINKEL:  I think the whole visitation

       8      thing is very troubling.

       9             We now have -- have -- what a health risk

      10      isolation is, and we're already talking about the

      11      most vulnerable.  And so isolation for them is

      12      absolutely even more staggering.

      13             I think, you know, one of the things, and

      14      you've asked for the long-term-care task force, and,

      15      we're very anxious to get that.  But we need a real

      16      in-depth analysis of the whole visitation-isolation

      17      piece.

      18             And at the same time, you know, I think we

      19      need an overarching examination of what happened

      20      with the nursing homes this time out.  We need

      21      experts from a broad base of disciplines to come

      22      forward and really do some good digging here to

      23      figure out what happened and have a full formal

      24      report on it.

      25             SENATOR MAY:  Okay.









































                                                                   548
       1             And, for Judith, I actually have a different

       2      question for you.

       3             So on the department of health website there

       4      is a list of rights of nursing home residents,

       5      you're probably familiar with.

       6             And the ombudsman handbook says, "State and

       7      federal regulations require nursing homes to have

       8      written policies covering the rights of residents."

       9             I feel that we've been hearing a lot of cases

      10      where, at least the family members feel the rights

      11      haven't been observed.

      12             What more do we need?

      13             JUDITH GRIMALDI:  I think community

      14      education.  And that's one to the efforts that we'll

      15      be working on.

      16             If you -- if you go into most nursing homes,

      17      posted, probably by an elevator, in a frame,

      18      indiscreet, is a listing of patient rights.

      19             I've seen it, because I look for it every

      20      time I go into a nursing home, and it's there.  But

      21      it's not well-publicized or well-demonstrated, and

      22      you have to kind of know about it.

      23             The Nursing Home Reform Act goes back to

      24      1987.  And it was revised again in the 2000s.  But,

      25      it's not talked about.









































                                                                   549
       1             It's not -- and I think you heard from

       2      Richard Mollot this morning.  If you just -- he's

       3      got it all worked out.  We don't have to reinvent

       4      the wheel.  That the long-term-care task force is

       5      really -- that organization has laid things out

       6      very, very well.  I mean, we can take a page from

       7      that and maybe build on it.

       8             But, there's a lot of groundwork that's been

       9      done, both there and nationally.

      10             I'm a member of the National Academy of the

      11      Elder Law Attorneys, and across the nation it's

      12      happening.  The groups, Elder Justice and

      13      Empire Justice in New York State has worked on it.

      14             There's a lot of resources that are there,

      15      and we can pull on it, and we're prepared to work on

      16      that.

      17             We're working on a white paper for review as

      18      well.

      19             SENATOR MAY:  Thank you so much.

      20             SENATOR RIVERA:  Great, thank you, Senator.

      21             Now to the Assembly.

      22             ASSEMBLYMEMBER BRONSON:  Thank you.

      23             And I'll go next, and I'll be brief.

      24             And, yes, Senator May, I heard you loud and

      25      clear.  I will help Assemblymember Cruz with her









































                                                                   550
       1      bill, and, hopefully, we can move that forward.

       2             But in line with that, Beth, you --

       3             Nice seeing you, by the way.

       4             BETH FINKEL:  You, too.

       5             ASSEMBLYMEMBER BRONSON:  -- you talked about

       6      reaching out to the governor, and requesting the

       7      task force, one that would be made up of all the

       8      stakeholders -- consumers, long-term-care providers,

       9      home-care agencies, and unions -- and really

      10      coordinate a statewide effort.

      11             Did you get a response from the governor's

      12      office at all on that request?

      13             BETH FINKEL:  We've had conversations, but we

      14      haven't heard anything moving forward.

      15             ASSEMBLYMEMBER BRONSON:  Okay.  Are those

      16      conversations still ongoing?

      17             BETH FINKEL:  Uhm...

      18             Not as of very recent; but, yes.

      19             ASSEMBLYMEMBER BRONSON:  Okay.

      20             So -- I mean, it certainly sounds like,

      21      I mean, that's the whole idea of these hearings, is

      22      to hear from all stakeholders.

      23             And that's all you were asking from an

      24      administrative process: let's get the stakeholders

      25      together and develop a good plan.









































                                                                   551
       1             And, yeah, I'll just end with this, Judith,

       2      you ended your last response to Senator May.

       3             I know you're all ready, willing, and you're

       4      able, and you have the expertise, you have the

       5      knowledge.

       6             We really need to try to encourage the

       7      governor to involve all of the stakeholders in this,

       8      so that, you know, the difficult things that we were

       9      just talking about with the family on the panel

      10      right before you, with caregivers --

      11             BETH FINKEL:  Yes.

      12             ASSEMBLYMEMBER BRONSON:  -- of young

      13      children.

      14             I mean, how do we work this out?  Because

      15      it's not working right now.

      16             So I just -- I just wanted to thank each of

      17      you for coming in, and look forward to working with

      18      you as we move forward.

      19             BETH FINKEL:  Thanks, Assemblymember.

      20             JUDITH GRIMALDI:  Thank you.

      21             SENATOR RIVERA:  Thank you.

      22             I'll take the next round.  It will be quick,

      23      I just have one question.

      24             So if a family member -- because we heard a

      25      lot of stories today about family members who were









































                                                                   552
       1      concerned, because they had lack of information,

       2      they didn't know state of health of their family

       3      member.

       4             So if they want to actually have somebody

       5      discharged, it is my understanding the home could

       6      actually prevent that from happening -- correct? --

       7      if they want to have their family member discharged?

       8             JUDITH GRIMALDI:  Even working on discharges,

       9      it has to be a safe discharge.

      10             And the difficulty has been that, with the

      11      lockdown, the agent -- so you have to have a

      12      home-care setting that's safe, and assessments of.

      13             So the discharge has been slow because

      14      assessments have to be done by Zoom or phone, have

      15      doctors prepare medical treatment plans, and then

      16      the hiring of home-care workers to -- the families

      17      often can't do the care at home.

      18             So it's been slow because the pieces, the

      19      coordination pieces, have been slow.  Everybody is

      20      in the same lockdown.

      21             So I have not seen homes say, no, you can't

      22      take them home.

      23             What they say is:  Do you have a safe

      24      discharge?

      25             And if the family is not as coordinated or









































                                                                   553
       1      savvy enough to pull a discharge together, then it

       2      doesn't happen, and they're frustrated because they

       3      don't have the tools to do so.

       4             SENATOR RIVERA:  All right.

       5             Thank you both.

       6             I think that that is the extent of our

       7      questions for this panel?

       8             And, yes, it is.

       9             Thank you so much, both of you, for coming.

      10             BETH FINKEL:  Thank you.

      11             JUDITH GRIMALDI:  Thank you.

      12             SENATOR RIVERA:  We've got just a couple more

      13      folks who are hanging around.

      14             Panel Number 9 will be:

      15             Susan Dooha -- I hope that I'm pronouncing

      16      that name correctly -- executive director,

      17      Center for Independence of the Disabled;

      18             Bryan O'Malley, executive director of

      19      CDPAANYS.  Whoa, a lot of acronym there;

      20             Faigie Horowitz -- again, I hope that

      21      I pronounced that correctly -- director of

      22      marketing and communication for the Caring

      23      Professionals, Inc.;

      24             And, Claire Altman, president of

      25      Altman Strategies, LLC.









































                                                                   554
       1             And, Monsieur Gottfried.

       2             I can't hear you.

       3             ASSEMBLYMEMBER GOTTFRIED:  Hello?

       4             SENATOR RIVERA:  There you go, now you're

       5      good.

       6             ASSEMBLYMEMBER GOTTFRIED:  Do all of you

       7      swear or affirm that the testimony you're about to

       8      give is true?

       9             SUSAN DOOHA:  I affirm.

      10             BRYAN O'MALLEY:  I affirm.

      11             FAIGIE HOROWITZ:  I affirm.

      12             CLAIRE ALTMAN:  I affirm.

      13             ASSEMBLYMEMBER GOTTFRIED:  Okay.

      14             SENATOR RIVERA:  All right.  Let's start with

      15      Susan Dooha, please.

      16             SUSAN DOOHA:  First, thank you so much for

      17      allowing us to appear before you.

      18             I want to thank the nursing facility staff

      19      who appeared before.

      20             I want to thank the family members of

      21      residents of nursing facilities.

      22             And, of course, Richard Mollot and

      23      Beth Finkel, what can I say?

      24             Terrific work.

      25             I want to speak to you about our work.









































                                                                   555
       1             About half of our 70-plus center staff assist

       2      individuals who want to secure care at home and in

       3      the community, or, another more integrated setting,

       4      so that they can avoid nursing-facility placement.

       5             I would agree with Judith, the only safe

       6      nursing facility, actually, is the one that you can

       7      be at all the time.

       8             These staff also help people leave nursing

       9      facilities for their homes in the community, and our

      10      staff protect the rights of nursing-facility

      11      residents and their families.

      12             Our help lines have been open throughout the

      13      pandemic, and have fielded many desperate calls from

      14      nursing home residents and their families, from

      15      staff of nursing facilities.  And we've been

      16      managing complaints, appeals, desperate cries, to

      17      exit facilities.

      18             Residents have called CIDNY, desperate to get

      19      out.

      20             Often our staff calls to facilities about

      21      them are not returned for days at a time.

      22             Our open-doors program helps individuals who

      23      want to leave facilities.

      24             And we've been able to get 27 individuals out

      25      of nursing facilities in New York City, the









































                                                                   556
       1      epicenter of the pandemic in New York State, and one

       2      of the epicenters across the nation.

       3             However, 136 people that my staff were

       4      working with, died before they could exit the

       5      facility, and they were in the process of

       6      transition.  And we mourn them, and our staff are

       7      grieving for them, and their families.

       8             I could speak with you about any number of

       9      issues that have been covered today, and I think add

      10      important issues to what you've already heard.

      11             I would be remiss if I didn't mention and

      12      speak briefly to the issue of racial and ethnic

      13      disparities because nursing facilities are

      14      especially dangerous for people who are Black or

      15      Brown.

      16             "The New York Times" observed that facilities

      17      primarily serving Blacks and -- Black and Latinx

      18      residents had cases of COVID at twice the rate of

      19      facilities serving White incidents.

      20             We've also observed this.

      21             And we want to know:

      22             Where is the focus on resources -- of

      23      resources on eradicating disparities and treatment

      24      and care in nursing facilities?

      25             Where is the public awareness of what's









































                                                                   557
       1      happening in these facilities?

       2             Where's the racial ethnic demographic data?

       3             Where is the disability -- where's the

       4      disparities prevention and eradication task force

       5      for people in congregate facilities?

       6             And, does emergency planning being done by

       7      nursing facilities include a focus on how they will

       8      address populations at much higher risk?

       9             I could address all kinds of other issues.

      10             I want to touch briefly on involuntary

      11      discharges, because no one has mentioned that.

      12             It is important that you know that

      13      individuals are being discharged from nursing

      14      facilities to very unsafe places; to homeless

      15      shelters in New York City, which are not even

      16      equipped as nursing facilities, to do infection

      17      control, to provide PPE, and to have other

      18      prerequisites of safety.

      19             We believe there should be a moratorium on

      20      such discharges at this time.

      21             You've already heard enough about many of the

      22      other issues, but it's imperative that I speak with

      23      you about the egregious and chronic underfunding of

      24      the long-term-care ombudsman program.

      25             The governor called the long-term-care









































                                                                   558
       1      ombudsman program "a watchdog."  And I want you to

       2      hear about the condition of "the watchdog."

       3             We've worked daily to provide assistance, and

       4      to be the eyes and ears of family members, and the

       5      eyes and ears of the state of the department of

       6      health, and provide a resource for families.

       7             During the recent period, we have

       8      participated in hearings, and appeals.  We've

       9      addressed 350 complaints and requests for

      10      information.  And, much more.

      11             We have a staff of five certified ombudsmen

      12      who are able to go into facilities, and they are

      13      serving more than 50,000 residents of nursing

      14      facilities, as well as residents of other

      15      facilities.

      16             And --

      17             SENATOR RIVERA:  Ms. Dooha, if you could

      18      actually -- if you could wrap up, since your time

      19      has expired.

      20             SUSAN DOOHA:  They are in no way adequately

      21      able -- there's one ombuds for every 8,650 nursing

      22      home residents.

      23             The standard is one for 2,000.

      24             We'd ask for --

      25             SENATOR RIVERA:  Thank you so much, Ms. --









































                                                                   559
       1             SUSAN DOOHA:  -- $3 million for the LICUP

       2      program, and we hope you hear our plea.

       3             SENATOR RIVERA:  -- thank you so much,

       4      Ms. Dooha.

       5             SUSAN DOOHA:  Thank you.

       6             SENATOR RIVERA:  Mr. Bryan O'Malley.

       7             BRYAN O'MALLEY:  Good evening.

       8             Thank you for having me.

       9             These hearings are critical to victims of

      10      this crisis, and their families deserve justice.

      11             But I want to be clear:

      12             The problems that we're talking about aren't

      13      new, and they can't be fixed.

      14             To make sure this never happens again, we

      15      have to use this tragedy as an opportunity to

      16      reimagine our long-term-care system, and focus on

      17      improving services like home care and

      18      consumer-directed personal-assistance that exists in

      19      our communities.

      20             These services not only prevent the rapid

      21      spread of pandemics, they provide better care and

      22      address health disparities that plague our

      23      health-care system.

      24             What I'm going say isn't without precedent.

      25             In 1972, when the country learned of the









































                                                                   560
       1      horrors at Willowbrook, it led to New York becoming

       2      synonymous with the word "deinstitutionalization."

       3             And as an epileptic, even I have benefited

       4      from this movement.

       5             Much of the last century would have seen me

       6      at a county for epileptics in Sonyea, New York,

       7      instead of before you here today.

       8             This is important because, if we're lucky

       9      enough to reach old age, we will need assistance.

      10             And while the ability to age in place is a

      11      civil right, it's contingent on being able to

      12      receive the services you need.  But nobody wants to

      13      go to a nursing home.

      14             And I guarantee you, folks like

      15      Michael Bloomberg never will.

      16             The research is clear:  Nursing homes are for

      17      those without resources, and primarily those on

      18      Medicaid, even though a nursing home costs over

      19      four times as much as the average person in

      20      consumer-directed.

      21             Thus, it should also not be a surprise that

      22      nursing homes with the higher numbers of Black and

      23      Brown residents were disproportionately impacted by

      24      this virus.

      25             The wealth and resource gap, that means Black









































                                                                   561
       1      and Brown folks disproportionately live in poverty,

       2      also makes them more likely to go to a nursing home.

       3      It means they're more likely to be in worse health,

       4      have less resources when they get to one, meaning,

       5      they're more likely to die.

       6             Meanwhile, CDPA addresses many of the health

       7      disparities that much of the health-care system

       8      struggles with.

       9             When the person receiving services is hiring,

      10      they can guarantee their staff will speak their

      11      language.  They don't have to worry about whether or

      12      not the staff will understand or respect their

      13      cultural needs.  And concerns about institutional

      14      racism in the health-care systems, such as that

      15      which stems from Tuskegee, Henrietta Lacks,

      16      eugenics, and countless others, are mitigated when

      17      people actually control their own services.

      18             As I've said, the problems are -- of COVID

      19      aren't new.

      20             Nursing homes, like all congregate settings,

      21      inherently pose a safety issue for residents.  And

      22      this isn't the first instance of a contagious

      23      disease disproportionately impacting these

      24      institutions.

      25             The flu, Legionnaires' disease, and even the









































                                                                   562
       1      common cold, ravage nursing homes every year.

       2             Natural disasters, like "Superstorm Sandy,"

       3      also always come with stories of horror about their

       4      impact on these populations.

       5             But an examination of policies shows a bias

       6      towards institutional care despite community-based

       7      care's multiple advantages.

       8             This year, the State enacted a look-back

       9      period for home care and CDPA before they can even

      10      receive services, a process that often takes

      11      six months or more, and which in a nursing home is

      12      provided while the look-back is taking place.

      13             And I'll acknowledge Senator Rivera and

      14      Assemblymember Gottfried's legislation that would

      15      fix this bill.

      16             We do not know the impact of COVID on those

      17      in CDPA or home care because the State didn't

      18      collect the data.  But we know several realities,

      19      not the least of which is that, while one nursing

      20      homeworker can infect hundreds in an institution, in

      21      CDPA, that person typically only works with one,

      22      maybe two consumers, and immediately limiting any

      23      potential spread.

      24             In a survey CDPA conducted, every region of

      25      the state saw between 70 and 90 percent of









































                                                                   563
       1      respondents acknowledge they were more likely to die

       2      if they caught COVID, and between 50 and 90 percent

       3      worry that they would become infected.

       4             But what most feared, even more than the

       5      virus itself, was institutionalization.

       6             On top of this, consumers who have

       7      historically received gloves, rubbing alcohol, and

       8      other critical PPE and medical supplies from

       9      Medicaid, were suddenly unable to do so.

      10             When they could, they were forced to buy them

      11      themselves at dramatically marked-up prices.

      12             Despite these problems, it's clear that home

      13      care, and in particular, CDPA, was substantially

      14      less dangerous than an institution.

      15             But that didn't stop the governor from saying

      16      to Chuck Todd on June 29th's "Meet the Press," in

      17      the face of all evidence to the contrary, that:  You

      18      can argue that a senior citizen in a nursing home

      19      are safer than a senior citizen in a home.

      20             COVID-19 provides us with a unique moment to

      21      analyze our policies, the impact they have, and what

      22      we can do to improve them into the future.

      23             I'm reminded of an altruism about smoking.

      24             Public health experts noted, that while the

      25      health-care costs for smokers are substantially









































                                                                   564
       1      higher for a brief period of time, they actually

       2      saved the system money because they died decades

       3      before their non-smoking counterparts.

       4             If we don't use COVID-19 as an opportunity to

       5      change our policies around nursing homes and

       6      long-term care, we're, in essence, saying that,

       7      unlike smoking, we're going to continue to promote

       8      institutionalization [indiscernible

       9      cross-talking] --

      10             SENATOR RIVERA:  Thank you so much

      11      Mr. O'Malley.  If you could wrap up, please.

      12             BRYAN O'MALLEY:  -- people die sooner.

      13             SENATOR RIVERA:  Okay.  Thank you so much,

      14      Mr. O'Malley.

      15             Next -- next, Faigie Horowitz.

      16             I hope that I pronounced your name correctly.

      17      I'm sorry if I did not.

      18             FAIGIE HOROWITZ:  You did fine, Chairman.

      19             My name is Faigie Horowitz.  I work for

      20      Caring Professionals, a licensed home-care agency

      21      and fiscal intermediary for CDPA, based in New York

      22      City, which serves over 5,000 individuals.

      23             I come out of a management career in social

      24      services.

      25             I'm an executive board member of an OPWDD









































                                                                   565
       1      agency for over 20 years, and I'm a founder of a

       2      shelter for runaway and homeless youth in Brooklyn.

       3             I serve on the parks committee in the

       4      Long Island village where I reside.

       5             Today I am testifying out of a sense of moral

       6      obligation.

       7             My 89-year-old father died of COVID-19 on

       8      April 7th.  He succumbed peacefully in his own bed,

       9      without requiring outside caregiving, and was active

      10      until his last day.  It was a dignified passing.

      11             In my work, we provide caregivers to those

      12      much less healthy, less active, and much more

      13      vulnerable than my late-father.

      14             During the early months of the pandemic, our

      15      coordinators heard from frightened, frail patients

      16      and consumers who realized they were at high risk,

      17      and must stay quarantined to avoid life-threatening

      18      exposure.

      19             It is a job of our coordinators to reassure

      20      patients and family members that our home-health

      21      aides would use PPE to protect them, and would

      22      continue their caregiving jobs.

      23             And continue they did, leaving family members

      24      at home, and traveling on public transportation, to

      25      care for their charges, despite the fact that their









































                                                                   566
       1      jobs paid just above minimum wage, and could be

       2      life-threatening.  They worked, nonetheless, often

       3      doing overtime without pay.

       4             In Spanish, Russian, Cantonese, Creolian,

       5      Mandarin, our staff heard fear of removal to a

       6      nursing home if there would be no available

       7      caregivers.

       8             "I will die there," a woman in Sheepshead Bay

       9      told Marina Kay.  "And if I am destined to die now,

      10      I would rather die in my own apartment."

      11             The fear is also true of people using CDPA,

      12      as documented by Bryan's organization, the Consumer

      13      Directed Personal Assistance Association of New York

      14      State, in a survey conducted during COVID.

      15             It is abundantly clear, from numerous

      16      studies, that aging in place is safer and healthier

      17      than institutionalization, and is the preferred

      18      choice of seniors.

      19             However, the history of long-term care for

      20      people with disabilities and seniors in this state

      21      has gone from pioneering choice and expansion of

      22      access, to restriction of choice and barriers to

      23      enrollment in Medicaid during the past few months.

      24             Additionally, a 25 percent cut to wages and

      25      benefits for home-care workers was put in place, as









































                                                                   567
       1      recommended by the Medicaid Redesign Team II earlier

       2      this year.

       3             This was done despite a study showing that

       4      low wages were one of the cheap obstacles to both

       5      recruitment and retention of New York home-care

       6      workers.

       7             Currently, I am seeing advertisements warning

       8      people to be aware of the looming changes in

       9      Medicaid rules beginning October 1st.

      10             I'm hearing from families in the communities

      11      who are afraid their seniors might become seriously

      12      debilitated very quickly from COVID, and will need

      13      assistance that their current moderate income cannot

      14      cover.

      15             I can urge them to hurry up and put their

      16      affairs in order, and apply to Medicaid at any time.

      17      And I do.

      18             However, I must warn them, that when they

      19      will need long-term care, the current contradictory

      20      and vague regulations will seek to keep them from

      21      accessing it.

      22             Furthermore, I will tell them that the MLTCs

      23      are instructed to promote congregate care, and take

      24      away home care, under the new regulations if the

      25      hours become too numerous.









































                                                                   568
       1             Frankly, I'm in the position of

       2      substantiating their fears of institutionalization.

       3             The rest of the country and the federal

       4      government have learned the importance of home care

       5      during corona, and are implementing policies to

       6      support this healthy, safe choice more broadly.

       7             In New York State, however, the situation is

       8      the reverse.  The ethically-responsible approach is

       9      continuing to be undermined, despite the current

      10      lessons of corona deaths in congregate care.

      11             Beyond the moral obligations to the

      12      vulnerable will be good for New York State's

      13      economic recovery to invest now in home care and its

      14      thousands of jobs.

      15             It's up to our lawmakers to push back against

      16      current policies, wage cutbacks, and restrictions,

      17      and do the right thing to reform home care here.

      18             We already have the solution to the problem

      19      of unsafe congregate care facilities:  CDPA, which

      20      has family members take care of family members at

      21      home at a lower cost than traditional home care.

      22             It's the safer and socially-responsible

      23      option already in place.

      24             So, let's expand it.

      25             SENATOR RIVERA:  Ms. Horowitz, did you -- was









































                                                                   569
       1      that the end?

       2             FAIGIE HOROWITZ:  The end.

       3             That was my call to action.

       4             SENATOR RIVERA:  Thank you so much,

       5      Ms. Horowitz.  Perfect timing.

       6             Next, Claire Altman, please.

       7             CLAIRE ALTMAN:  Thank you, Mr. Chairman,

       8      Chairlady, and Chairmen, and members of the Senate

       9      and the Assembly.

      10             Thank you for this opportunity to share some

      11      ideas myself and my colleagues have with regard to

      12      improving policies and practices in long-term care.

      13             As the president of Altman Strategies, I do a

      14      lot of consulting around health care, low-income

      15      housing, and community development.

      16             The ideas here today have been developed by

      17      myself; Dr. David Katz, who is a well-known

      18      physician and public-health advocate, president

      19      of True Health Initiative, and the founding

      20      director of prevention research center at

      21      Yale University-Griffin Hospital; and, Jack Gold, a

      22      real estate colleague who has done a lot of work in

      23      developing long-term-care facilities.

      24             As a lawyer by training, I've spent the last

      25      35 years developing housing for low-income









































                                                                   570
       1      individuals and families, and for persons with

       2      special needs, primarily in New York City.

       3             In my portfolio of over 3500 units are

       4      two skilled nursing facilities for individuals and

       5      families with HIV and AIDS, which I developed in the

       6      1990s, and for one of which I served as the

       7      chairman of the board for 17 years.

       8             We learned a great deal about infection

       9      control back then, with some of the lessons learned

      10      applicable to the current pandemic, particularly,

      11      the high risk of spreading infectious diseases

      12      through central air-handling systems.

      13             We believed from the very beginning that the

      14      only way to really protect residents in nursing

      15      homes from this pandemic is what we have termed a

      16      "closed-loop isolation system."

      17             Now, six months into this epidemic, our

      18      experience has borne out this belief.

      19             For example, one 40-bed skilled nursing

      20      facility in Upper Manhattan has had no COVID-19

      21      deaths.

      22             What differentiates this facility from many

      23      others are several key factors.

      24             Almost all of the rooms are individual rooms;

      25             There is no central air-conditioning system.









































                                                                   571
       1      They use room air conditioners;

       2             Many staff only work at this facility;

       3             Food is prepared on-site;

       4             And given the size, there are a limited

       5      number of outside vendors and therapists coming into

       6      the facility.

       7             In a closed-loop isolation system, as we are

       8      proposing, residential health-care facility

       9      management would set up an isolation arrangement,

      10      creating what we call a "clean facility."

      11             This would begin with what is done now, at

      12      least weekly testing of staff and residents,

      13      hopefully, with immediate results.

      14             That would be the first step in ensuring that

      15      COVID-19-free residents are protected by closing off

      16      all sources of virus to them.

      17             Other features to this approach would

      18      include:

      19             Residents only going to clean medical

      20      facilities for services such as dialysis and cancer

      21      care;

      22             Only traveling in vehicles that are clean

      23      vehicles;

      24             Receiving hospital care only in clean

      25      hospitals;









































                                                                   572
       1             Having fewer/no visitors, at least for a

       2      time.

       3             In addition, jurisdictions could create one

       4      or more temporary nursing or assisted-living

       5      facilities so that people who are about to enter a

       6      nursing home would be entering there, and be there

       7      for 14 to 30 days, to ensure that they are

       8      COVID-free.

       9             We recognize that there are advocates for an

      10      approach referred to, and it's been talked about,

      11      called "cohorting."

      12             That is the approach supported in the Senate

      13      and House bills in Congress, with -- that includes a

      14      $20 billion appropriation for nursing home relief

      15      measures.

      16             The danger is, that COVID-19 would still be

      17      present in the building when you just set aside one

      18      wing for COVID people and one not.

      19             Simply put, COVID-19 has proven from the

      20      beginning that it is extremely cunning, and has

      21      outsmarted every attempt to eliminate it once it's

      22      in the building.

      23             We believe the only way to prevent COVID-19

      24      from spreading is to keep it out of the facility

      25      altogether.









































                                                                   573
       1             Now that scientific results are emerging,

       2      suggesting that COVID-19 can be spread through

       3      airborne transmission, there is another compelling

       4      reason to create closed-loop isolation systems, with

       5      separate facilities for non-COVID-positive residents

       6      and for COVID-positive residents.

       7             As long as COVID-negative and COVID-positive

       8      residents share the same air-handling system, the

       9      virus is likely to spread.

      10             We recognize that this closed-loop isolation

      11      system would create additional costs in the short

      12      run, but we believe the longer-term benefits more

      13      than outweigh these short-term costs.

      14             Lives would be saved.

      15             You all know the desperate statistics on

      16      saving lives.

      17             Major reduction in hospital costs would be

      18      achieved as health-care providers would spend less

      19      time treating COVID patients.

      20             This would permit safer opening of the

      21      rest of our health-care system, and, we would,

      22      importantly, protect health-care workers.

      23             I realize that my time is up.

      24             SENATOR RIVERA:  Actually, just wrap up,

      25      please.









































                                                                   574
       1             CLAIRE ALTMAN:  Sure.

       2             I just want to close with saying:

       3             That we should also pay attention to home

       4      care, as the speaker before me talked about, because

       5      the next wave is going to be dealing with that.

       6             And a similar situation could be dealt with

       7      home-care residents.

       8             Thank you for your time and the opportunity

       9      to testify.

      10             SENATOR RIVERA:  Thank you so much.

      11             Leading off the questions will be the Senate,

      12      Senator May, recognized for 5 minutes.

      13             SENATOR MAY:  Thank you.

      14             And thank you all for your testimony.

      15             I wanted to give Susan a chance, although

      16      Faigie also talked about this, about the -- I know

      17      you wrote a letter about the managed long-term-care

      18      changes, and how that was stranding people in

      19      nursing homes who no longer had access to home care.

      20             Can you talk a little bit about that problem,

      21      and what you see as the solutions, what we should be

      22      doing about it?

      23             SUSAN DOOHA:  There are a number of things

      24      that have resulted in people being stranded in

      25      nursing facilities.









































                                                                   575
       1             One, some of them I've already described to

       2      you.

       3             But it's some of the limitations on care in

       4      the community, and the barriers to care in the

       5      community, that also have us very worried.

       6             We would want to see resources restored for

       7      the consumer-directed personal-assistance program.

       8             Managed long-term-care changes have resulted

       9      in a lot of cuts of hours of home care for

      10      individuals.

      11             And this month, over 20,000 individual

      12      residents of nursing facilities are being

      13      dis-enrolled from their managed long-term-care plans

      14      due to a determination that they are now permanently

      15      placed.

      16             Their -- this has reduced their ability to

      17      get out.  It has resulted in problems that will make

      18      it much more difficult to change their coding, to

      19      get their income re-established.

      20             All kinds of things are about to be much more

      21      difficult for many.

      22             And we would call for a moratorium on the

      23      rollout of this, at least until the pandemic is

      24      over.

      25             We think that it's imperative that additional









































                                                                   576
       1      changes that can lock people into nursing facilities

       2      not be made at this time.

       3             SENATOR MAY:  Okay.

       4             Thank you.

       5             And my other question is for anyone who wants

       6      to field it, but it's about just the home-care

       7      field.

       8             So I have spent a huge amount of time

       9      advocating for better pay and various ways to

      10      attract people into doing home care as the workforce

      11      shortage is growing more and more acute.

      12             But it seems like now there is additional

      13      demands for PPE and other protections and, no doubt,

      14      difficulties with people who were maybe going into

      15      two different homes, and they can't do that anymore.

      16             What are the biggest barriers to the actual

      17      logistics of home care right now?

      18             SUSAN DOOHA:  Lack of PPE is a tremendous

      19      problem.

      20             We are seeing individuals living in the

      21      community who are terrified to let in their

      22      home-care workers because they are at higher risk.

      23             Like our staff, like residents of facilities,

      24      they're at much higher risk.  And they can't control

      25      the environment that home-care workers are working









































                                                                   577
       1      in; or how many people that they're seeing; or how

       2      much PPE do they have, and whether they have enough

       3      PPE to use unique sets of PPE for every setting.

       4             I have yet to see that home-care workers or

       5      long-term-care ombudsmen workers have been

       6      designated as "essential workers" in the health

       7      system, and have had testing allocated, the adequacy

       8      of PPE assessed, all of the things that we believe

       9      need to happen.

      10             So these are really terrible problems that

      11      have yet to be tackled.

      12             Nonetheless, people would prefer to take

      13      their chances with care at home in the community

      14      than they would be to be locked into nursing

      15      facilities right now.

      16             SENATOR MAY:  Okay.

      17             I'm going to break in and let somebody else

      18      take a shot at this while we have --

      19             BRYAN O'MALLEY:  I would just agree with

      20      everything Susan said, and our survey bore out a lot

      21      of that, particularly with access to PPE.

      22             But I would also highlight that the staffing

      23      shortages you talked about, Senator, have just been

      24      exacerbated, in many instances, by COVID.

      25             Many people have gotten infected with the









































                                                                   578
       1      disease.

       2             Many workers have had to quit, to take care

       3      of children who are out of school.

       4             Many workers just are themselves compromised,

       5      and scared to go out in public, and are quarantining

       6      themselves.

       7             So, realistically, staffing has gotten

       8      shorter.  And plans, in many instances, are using,

       9      you know, the higher unemployment rates to say, oh,

      10      we'll cut your hours because, while your brother is

      11      now home, and he can just provide the services

      12      uncompensated.

      13             So, you know, we're seeing a range of issues

      14      around staffing and informal supports -- or,

      15      informal [indiscernible].

      16             SENATOR MAY:  Thank you.

      17             FAIGIE HOROWITZ:  I'd like to jump in with --

      18

      19             SENATOR RIVERA:  Actually, we have to move on

      20      to the next person.

      21             Assembly, please.

      22             ASSEMBLYMEMBER BRONSON:  Next up we have

      23      Chair McDonald for 5 minutes.

      24             ASSEMBLYMAN McDONALD:  Thank you, Harry.

      25             And thanks to all those who provided









































                                                                   579
       1      testimony this evening.

       2             I'm going to be brief.

       3             Claire, you know, when I read your report, it

       4      reminded us that it's the environment that we need

       5      to be focused.

       6             And the closed-loop system does sound like a

       7      stretch in some aspects.  But, on the other hand,

       8      you know what?  With everything else that's been

       9      failing, we've got to look for solutions.

      10             I have to ask this naive question, you know,

      11      because I think almost every nursing home I know of

      12      relies on the central-air system.

      13             The cost would have to be kind of expensive

      14      to retrofit, I would think.

      15             And then the other question is:  What are the

      16      ongoing costs compared to the central-air system,

      17      with just having room air conditioners?

      18             CLAIRE ALTMAN:  Well, I think we helped build

      19      that nursing home 25 years ago.

      20             But, today, there's more sophisticated

      21      technology.

      22             And I'm not a builder, but I oversee a lot of

      23      buildings and developments, PTAC systems, which is a

      24      unit you see often in motels, which is a combined

      25      heating and air-conditioning system controlled









































                                                                   580
       1      individually.  And it doesn't circulate the air

       2      throughout the building.  The air circulates in that

       3      room, and with an outside source.

       4             So those systems are not actually that

       5      expensive, and -- to buy.  And they're, frankly, not

       6      that expensive to operate either.  We've made a lot

       7      of strides.

       8             Now, it would mean not using a central system

       9      if it's there.

      10             And, you know, it depends on -- I'm not

      11      saying it could be done overnight, but I'm saying we

      12      need to look forward to something.

      13             I think we ought to have in place a plan, as

      14      many people have said today, so that if we do have a

      15      second wave, or there's another pandemic, that we

      16      have a more serious system, if you would, that we

      17      could put in place, like they're trying to do with

      18      floods.

      19             So it's on the shelf; it's a policy, we could

      20      implement it right away.

      21             So, it's expensive.  But, on the other hand,

      22      we've lost at least 6400 lives, maybe more, as you

      23      all have talked about today, and untold grief for

      24      families and loved ones.

      25             So that I think, you know, it's -- and in









































                                                                   581
       1      most buildings, after 20 years, they do a lot of

       2      updating anyway.

       3             So --

       4             ASSEMBLYMAN McDONALD:  What about energy

       5      consumption, or utilization?

       6             CLAIRE ALTMAN:  It's not that -- I actually

       7      know, in the residential setting, that people were

       8      worried, when they moved into a building with PTAC

       9      systems, that their energy costs would go up, their

      10      Con Ed bill would go through the roof.

      11             And that hasn't been the case.

      12             But you would need engineers to do an

      13      assessment.

      14             I'm not an engineer, so I can't give you a

      15      full answer.

      16             But I think it's something that is worth

      17      looking at.  We need to do some planning.

      18             ASSEMBLYMAN McDONALD:  Okay.  Thank you.

      19             That's it.

      20             Thank you, Harry.

      21             SENATOR RIVERA:  Thank you so much.

      22             We are now -- will move to Senator Skoufis,

      23      recognized for 5 minutes.

      24             SENATOR SKOUFIS:  Thank you, Mr. Chairman.

      25             My question is actually for Bryan O'Malley,









































                                                                   582
       1      if I can direct one to you.

       2             You mentioned that the State is not tracking

       3      infection rates among the consumer-directed program.

       4             But can you give a sense of, even if it's

       5      anecdotally, what -- you know, have infections been

       6      pervasive?

       7             Obviously, you know, you noted, and it stands

       8      to reason, you know, these are primarily one-on-one

       9      interactions versus, you know, hundreds of people

      10      potentially being in a facility, in a nursing home,

      11      and so the environment is very different.

      12             But can you speak to what has been happening

      13      these past 5 months vis-a-vis COVID in the

      14      consumer-directed program?

      15             And, similarly, have you all had sufficient

      16      PPE?

      17             Speak to some of these, you know, major

      18      themes and issues that we've heard a lot about today

      19      in the hearing, please.

      20             BRYAN O'MALLEY:  Definitely.

      21             Thank you.

      22             You know, from what we can gather, certainly,

      23      you know, people have been impacted by COVID.

      24             The workers oftentimes, you know, in the

      25      city, riding the subway, taking taxies, using public









































                                                                   583
       1      transportation, to get to and from their cases.

       2             We hear stories of workers changing, two,

       3      three, four times a day, to, you know, the same

       4      stories that you hear from nurses in hospitals, and

       5      the like.

       6             But, by and large, you know, a lot of the

       7      worst cases seemed to come at the beginning.

       8             Many consumers actually moved in with -- or,

       9      many PAs actually moved in with the consumers.

      10             And, you know, overall, anecdotally, we have

      11      begun to hear some information from some plans that,

      12      in fact, their members with CDPA have faired, by

      13      far, the best throughout this COVID pandemic, as a

      14      group.

      15             You know, that said, we are experiencing

      16      problems with PPE, just as everyone is.

      17             But, consumers, FIs, the agencies, don't

      18      get reimbursement.  They have never had to provide

      19      any of the PPE.  They don't have channels to

      20      actually [indiscernible] the supplies, in many

      21      instances.

      22             And consumers relied on Medicaid, and

      23      Medicaid stopped sending it; they stopped making it

      24      available.

      25             So, you know, that was really something that









































                                                                   584
       1      became very problematic for people, was just access

       2      to things like gloves, rubbing alcohol, and other

       3      materials; PPE and materials that just protect

       4      general safety in the home.

       5             You know, we're dealing with people that are

       6      getting shots, getting catheters, and the like, and

       7      these supplies are critical.

       8             SENATOR SKOUFIS:  What about cleaning homes?

       9             Did folks have the proper supplies to make

      10      sure that, you know, whether it's spray, or whatever

      11      it is, that's available in nursing home facilities,

      12      hospitals, to cleanse, you know, where they're

      13      working?

      14             Did they have that sort of equipment?

      15             BRYAN O'MALLEY:  Right, and we asked that as

      16      well in our survey, and, you know, access to any

      17      kind of cleaning materials: disinfectants, bleach,

      18      hand sanitizer.

      19             People were buying it at grocery stores, just

      20      like you and me.  And there was none to be had, and

      21      there was no way for them to get it.

      22             So, you know, realistically, people were

      23      doing the best they could.

      24             SENATOR SKOUFIS:  Got it.

      25             So we have to do a lot better, is the long









































                                                                   585
       1      story short.

       2             Got it.

       3             Thank you.

       4             BRYAN O'MALLEY:  Thank you.

       5             SENATOR RIVERA:  All right.

       6             Thank you, Senator, and thank you, Bryan.

       7             Back to the Assembly.

       8             ASSEMBLYMEMBER BRONSON:  Next we have

       9      Chair Gottfried for 5 minutes.

      10             ASSEMBLYMEMBER GOTTFRIED:  Yes, thank you.

      11             For Bryan O'Malley:

      12             You just said -- I think you just said that

      13      Medicaid stopped making it available, and I think

      14      you were referring to things like gloves?

      15             Could you clarify that?

      16             BRYAN O'MALLEY:  What we heard was that,

      17      people who had traditionally purchased gloves, and

      18      Medicaid would allot one box of gloves per month,

      19      could no longer get gloves.

      20             And, you know, I think part of the problem

      21      was, there was dramatically increased use.

      22             But part of the problem was, there was a

      23      shortage of gloves, and people could not find gloves

      24      to purchase.

      25             So while Medicaid used to allot that, there









































                                                                   586
       1      were no gloves to be had.

       2             You know, gloves were -- all PPE was being

       3      diverted to hospitals.

       4             At one point I tried to go on and just do a

       5      bulk order for our member [indiscernible], so they

       6      could send things out to consumers.

       7             And, if you weren't a hospital, you could not

       8      buy PPE.  You could not buy gloves, masks, any type

       9      of protective equipment.

      10             ASSEMBLYMEMBER GOTTFRIED:  But apart from

      11      that, and -- or, before that, if you were a Medicaid

      12      recipient and needed to buy gloves, et cetera,

      13      Medicaid would pay for that?

      14             BRYAN O'MALLEY:  Medicaid would provide one

      15      box of gloves per month was always my understanding.

      16             ASSEMBLYMEMBER GOTTFRIED:  Uh-huh.

      17             Okay.

      18             Just, in general, I want to thank those of

      19      you who talked about the CDPA program.

      20             I think you've helped all of us have a better

      21      understanding of that program, and of a lot of its

      22      value, perhaps, beyond some of what we've thought

      23      about it.

      24             I mean, frankly, I think the whole CDPA

      25      program has, and I'm happy to say this, really









































                                                                   587
       1      blossomed into a lot more than we thought it might

       2      be back in the late '90s when it was created.

       3             BRYAN O'MALLEY:  Well, thank you for creating

       4      it.

       5             ASSEMBLYMEMBER GOTTFRIED:  Okay.

       6             Thanks.

       7             SENATOR RIVERA:  Thank you, Assemblymember.

       8             Now we're going to go back to the Senate.

       9             Recognize Senator O'Mara for 5 minutes.

      10             SENATOR O'MARA:  Thank you, Chairman.

      11             And thank you to all of our speakers this

      12      evening.

      13             Now, I can smell my dinner coming from the

      14      kitchen, so I think we're near the end here.

      15             I thank everybody for hanging in there.

      16             I have one question for Claire Altman.

      17             In your remarks, you mentioned the usefulness

      18      of -- when we have, I guess what we call, "rapid

      19      tests," or, tests with a quick response.

      20             Do you have a sense of where we are in that

      21      prog -- in progress on that now?

      22             CLAIRE ALTMAN:  I don't have any better

      23      information than our -- my fellow witnesses today.

      24             I'm in touch with some nursing homes.

      25             I think it is challenging to get the results









































                                                                   588
       1      back quickly.

       2             I think it's very -- it goes up and down.

       3             I also think that, the last I understood, and

       4      I hope that I'm wrong about this, is that nursing

       5      home staff are to bill their health insurance for

       6      the -- this -- the COVID test.

       7             And many nursing -- and many health insurers

       8      are saying these are not medically necessary.

       9             And so there's a conundrum there, that's the

      10      cost.

      11             So I think, in addition to the cost and

      12      budgetary problems that a lot of nursing home

      13      operators have testified about today, the cost of

      14      doing regular testing is mounting up, and I'm not

      15      sure they're going to be reimbursed.

      16             SENATOR O'MARA:  Yes, it is.  Yeah.

      17             Well, thank you.

      18             I want to thank you all again.

      19             Just a couple closing remarks since this is

      20      the last panel.

      21             SENATOR RIVERA:  No, sir, it is not.

      22             SENATOR O'MARA:  It's not the last panel?

      23             We have one more?

      24             SENATOR RIVERA:  We have one more panel, sir,

      25      so your dinner is going to have to wait.









































                                                                   589
       1             SENATOR O'MARA:  Then I'll have to -- then

       2      I'll have to wait.

       3             SENATOR RIVERA:  Bring it beside you, bro.

       4             Bring it beside you.

       5             SENATOR O'MARA:  Thank you, Chairman.

       6             Yeah.

       7             SENATOR RIVERA:  You done, though?

       8             SENATOR O'MARA:  Yes, I am.

       9             Thank you.

      10             SENATOR RIVERA:  All righty?

      11             Assembly.

      12             ASSEMBLYMEMBER BRONSON:  I do not see any

      13      other speakers from the Assembly.

      14             SENATOR RIVERA:  Okay.

      15             Then we've got Senator Serino to --

      16      recognized for 5 minutes.

      17             SENATOR SERINO:  Thank you again,

      18      Mr. Chairman.

      19             And thank you everybody for your testimony

      20      today.

      21             I've heard the same stories about the gloves

      22      and alcohol pads, shortages.

      23             And it's clear that this particular program

      24      was really an afterthought throughout this, and we

      25      have to do better, going forward.









































                                                                   590
       1             But have you -- Bryan, with regard to you,

       2      have you ever reached out to the governor or the

       3      department of health to ask why they weren't

       4      collecting data on how many individuals receiving

       5      CDPA became infected with COVID-19?

       6             Did you ever reach out to the governor's

       7      office or department of health?

       8             BRYAN O'MALLEY:  We did not reach out on

       9      that, largely because, you know, when factoring

      10      [indiscernible] you can capture, you can acquire

      11      COVID any number of ways; from family, from, you

      12      know, a worker, from any number of people.

      13             So I don't -- you know, the value, and the

      14      difficulty in just obtaining that would have been

      15      extremely hard.

      16             SENATOR SERINO:  I was just thinking that, if

      17      you had a number, it might have been a little easier

      18      to be able to have the PPE, the amount that you

      19      might need.  Right?

      20             And then I also want to say, thank you for

      21      bringing up the testing-reimbursement issue.

      22             So, thank you.

      23             I'm good.

      24             Thank you, Chairman.

      25             SENATOR RIVERA:  Thank you, Senator.









































                                                                   591
       1             I'm just going to ask a quick question.

       2             Ms. Dooha, at the beginning, you -- during

       3      your testimony you talked about some of the racial

       4      disparities in nursing homes that you're concerned

       5      about, as well as inappropriate discharges.

       6             And these were areas I would have liked to

       7      bring up with the commissioner, but I had a limited

       8      time.

       9             Could you tell us a little bit about the

      10      concern that you have about these two areas so they

      11      can be on the record, please?

      12             SUSAN DOOHA:  Absolutely.

      13             We are seeing, within our staff, our board

      14      members of our community, a much higher rate of

      15      infection among the people who are Black and Latino.

      16      We're -- we're -- we've got this replicated in

      17      facilities.

      18             And although it isn't -- we don't have the

      19      ability to look across all of the facilities, many

      20      of which don't have an ombudsman assigned to them.

      21             We do anecdotally think that there is really

      22      a lack of planning and thought about this issue, and

      23      it really needs to be a focus.

      24             It needs to be a focus of planning for any

      25      pandemic.









































                                                                   592
       1             It needs to be a focus of planning for

       2      nursing facilities.

       3             I don't know -- we haven't been able to see

       4      what kinds of emergency plans are in place at

       5      facilities, but I would wager that they don't

       6      include particular planning for their residents who

       7      are Black or Latino.

       8             And that, the department of health, I haven't

       9      heard anything about them inquiring about facilities

      10      where the death rates are highest among those who

      11      are Black and Latinx.

      12             And, yet, this is a story that's been in

      13      "The New York Times," it's been in other media, and

      14      it's one that really requires an investigation and

      15      further attention.

      16             And I really commend it to you, Mr. Chairman,

      17      if you could please encourage a focus on this issue.

      18             It's just unconscionable that this is going

      19      on in this day and age.

      20             And we -- there's no prevention plan for the

      21      eradication of disparities in nursing facilities,

      22      for example.

      23             So these are really serious issues.

      24             We've also been seeing a lot of people ending

      25      up in -- discharged to homeless shelters.  And we









































                                                                   593
       1      don't believe this is a safe discharge under any

       2      circumstance.

       3             SENATOR RIVERA:  Yep.

       4             SUSAN DOOHA:  However, during the pandemic,

       5      it's especially alarming.

       6             We work with people who are homeless.

       7             We have members of our board, of our staff,

       8      who have been homeless.

       9             We have a lot of clients, people we serve,

      10      who are homeless.

      11             And the reports that we get from them about

      12      homeless shelters suggests that there's nothing like

      13      safety.

      14             Beds are ganged up together in congregate

      15      facilities.

      16             Staff don't have PPE.

      17             There's nothing like infection control.

      18             Congregate bathrooms and shower areas.

      19             Nothing like cleanliness.

      20             This is a really serious issue.

      21             There are a lot of congregate environments

      22      that are not being looked at, and that really must

      23      be looked at, because these also are places where

      24      I would expect that there are a lot of deaths

      25      occurring, but they're under the radar screen.









































                                                                   594
       1             And I strongly encourage a focus on these

       2      discharges that are occurring, that are unsafe

       3      discharges, in my view.

       4             SENATOR RIVERA:  Okay.

       5             Thank you, Ms. Dooha.

       6             We have no further questions from the

       7      Assembly or Senate.

       8             So I thank you all for your patience and for

       9      being with us.

      10             And now, Senator O'Mara, we are moving to our

      11      last panel, which is the following:

      12             We are joined by Daniel Ross, staff attorney

      13      at Mobilization for Justice Legal;

      14             Dr. Tara Cortes, a clinical professor at NYU,

      15      and executive director of the Hartford Institute for

      16      Geriatric Nursing;

      17             And, Geoff Lieberman, executive director,

      18      Coalition of Institutionalized Aged and Disabled.

      19             I believe that these folks are here.

      20             Okay.  There is at least one of them.

      21             Okay, there's Dr. Cortes.

      22             Okay.  Monsieur Gottfried, for the last time

      23      today.

      24             ASSEMBLYMEMBER GOTTFRIED:  Who all do we

      25      have?









































                                                                   595
       1             SENATOR RIVERA:  We have Daniel Ross,

       2      Tara Cortes -- Dr. Tara Cortes, and -- Tara Cortes,

       3      and Geoff Lieberman.

       4             ASSEMBLYMEMBER GOTTFRIED:  Ah, everybody.

       5             Okay, last, but not least, by far:

       6             Do you all swear or affirm that the testimony

       7      you're about to give is true?

       8             DR. TARA CORTES:  I do.

       9             DANIEL ROSS:  I do.

      10             GEOFF LIEBERMAN:  I affirm.

      11             ASSEMBLYMEMBER GOTTFRIED:  Okay.

      12             SENATOR RIVERA:  Start off with Daniel Ross,

      13      please.

      14             ASSEMBLYMEMBER GOTTFRIED:  Let me note,

      15      I obviously pitched a perfect game.  Everybody said

      16      "yes."

      17             DANIEL ROSS:  Well, good evening.

      18             My name is Daniel A. Ross.

      19             I'm senior staff attorney at Mobilization for

      20      Justice.

      21             For more than 25 years, Mobilization for

      22      Justice has advised and represented adult-home

      23      residents in individual matters and impact

      24      litigation.

      25             And for almost 10 years, we've provided









































                                                                   596
       1      similar services to residents of nursing homes in

       2      New York City.

       3             Although the situation in the state's nursing

       4      homes is dire, as we've heard all day, I'm going to

       5      focus my testimony on the less-known situation in

       6      adult-care facilities, which have, roughly,

       7      50,000 seniors and people with disabilities across

       8      New York State.

       9             Adult-care facilities vary in the

      10      accommodations and services they provide.

      11             Most ACFs are either adult homes or an

      12      enriched-housing program, which generally provide

      13      room and board and case management in either more

      14      private apartment-style housing in EHPs, or

      15      dorm-like accommodations in adult homes.

      16             Some facilities house low-income residents

      17      who pay the facility with their income from SSI and

      18      the state supplement program, while other facilities

      19      charge over $100,000 a year for luxury

      20      accommodation.  Many also provide assisted-living

      21      services, such as personal care and nursing

      22      services.

      23             MFJ concentrates our work advocating for and

      24      advising residents of transitional adult homes.

      25      These are homes in which 25 percent, or sometimes









































                                                                   597
       1      almost all residents, have mental-health

       2      disabilities.

       3             For decades, these institution, which are

       4      mostly run for-profit, have warehoused people being

       5      de-institutionalized from state psychiatric

       6      hospitals.

       7             The poor conditions have been the subject of

       8      numerous government reports and media accounts,

       9      including "The New York Times'" Pulitzer-winning

      10      "Broken Home" series in 2001.

      11             The pandemic response has followed a familiar

      12      pattern in these homes.

      13             The DOH-issued COVID-related guidance to

      14      adult-care facilities beginning in the second week

      15      of March.  But then, consistent with its history of

      16      promulgating useful regulations, and failing to

      17      adequately enforce basic standards, the DOH

      18      suspended in-person oversight, including complaint

      19      investigations.

      20             Residents at some ACFs told us how their

      21      facilities quickly complied with DOH guidance.

      22             But we also heard from residents of other

      23      facilities, particularly transitional adult homes,

      24      about the lack of social distancing, staff

      25      cohorting, or resident quarantining that DOH









































                                                                   598
       1      guidance prescribed.

       2             We began reporting these concerns to the DOH

       3      in late March, as deaths were mounting.

       4             For several more weeks:

       5             Some facilities continued serving meals in

       6      large dining rooms with no social distancing

       7      precautions;

       8             Some facilities continued disbursing

       9      medications centrally, forcing residents to come

      10      down in crowded elevators and stand on line next to

      11      people from other parts of the building;

      12             And, sick residents were not quarantined, and

      13      masks and PPE were minimal or absent.

      14             Weeks after the April 4 guidance on

      15      communicating with residents and families about

      16      COVID, and even after that guidance became mandatory

      17      two weeks later, many residents told us that their

      18      facility hadn't told them about COVID cases or

      19      deaths, although they knew some residents had died,

      20      and others were sick.

      21             Eventually, in late April, the department

      22      started unannounced visits, forced facilities to end

      23      congregate meals and end centralized medication

      24      disbursement, and provided testing of residents in

      25      these facilities.









































                                                                   599
       1             But there's an indication -- but there's no

       2      indication that the department has planned

       3      adequately for the expected second wave.

       4             Even knowing the scope of the problem is

       5      purposely obscured, as we talked about earlier

       6      today, by DOH policy that excludes from public

       7      recording deaths in ACFs and nursing home -- of ACF

       8      and nursing home residents if they were first

       9      transferred to a hospital, DOH has not adopted for

      10      ACFs the same COVID transparency requirements that

      11      DMS demands of nursing homes.

      12             This leaves residents and their families in

      13      the dark about the risks to their health, and

      14      prevents policymakers from assessing appropriate

      15      resource allocation.

      16             Low-income residents are often cash-strapped,

      17      finding it difficult to buy adequate clothing, food,

      18      and toiletries, let alone recreational expenses.

      19             As they face unprecedented social isolation

      20      without group activities or visits from families and

      21      friends, economic-impact payments from the federal

      22      government could have helped them buy technology to

      23      help [indiscernible] -- sorry -- to keep them

      24      connected to loved ones, or simply find

      25      entertainment to pass the time, during the pandemic









































                                                                   600
       1      stay-at-home order.

       2             In April we warned the DOH that some

       3      facilities would try to keep residents' stimulus

       4      checks for themselves.

       5             And in May and June, that's exactly what

       6      happened.

       7             Operators at some facilities informed

       8      residents of new-found rent arrears, or told

       9      residents that they weren't eligible for payment.

      10             DOH has still failed to adequately combat

      11      facilities misappropriating of residents'

      12      economic-impact payments.

      13             Stronger enforcement and stronger enforcement

      14      tools are needed to finally fix the problems

      15      residents have endured for decades.

      16             The State has awarded many chronically

      17      underperforming facilities with lucrative Medicaid

      18      assisted-living program certification, but taken no

      19      steps to ensure transparency and accountability for

      20      the quality of services provided to vulnerable

      21      residents.

      22             We urge the legislature to enact A4416C and

      23      S3460A, which would empower the department of health

      24      to fine facilities for purposeful violations of

      25      residents' rights, financial abuse as described









































                                                                   601
       1      above, or repeated violations of the same regulatory

       2      provision within a 12-month period.

       3             SENATOR RIVERA:  Mr. Ross, if you could

       4      actually wrap it up, since your time has expired.

       5             DANIEL ROSS:  Sure.

       6             Yeah, it's commonsense legislation that

       7      I think many people would be surprised to learn is

       8      not actually existing law.

       9             Thank you.

      10             SENATOR RIVERA:  Thank you so much, Mr. Ross.

      11             How about Dr. Tara Cortes.

      12             DR. TARA CORTES:  Thank you very much.

      13             Good evening, committee chairs and all

      14      members of the legislature present, and thank you

      15      for your stamina for listening and being so

      16      attentive all day.

      17             My name is Dr. Tara Cortes, and I'm executive

      18      director of the Hartford Institute for Geriatric

      19      Nursing, the geriatric arm of NYU Rory Myers College

      20      of Nursing.

      21             Other residential long-term care is usually

      22      thought of as being simply custodial.  The care

      23      needed in these settings is actually some of the

      24      most complex care delivered across the health-care

      25      continuum.









































                                                                   602
       1             Most residents have multiple chronic diseases

       2      and, very often, have dementia as well.

       3             With the increase in the number of people

       4      living to 85 and beyond, and the increase in

       5      complexity of those living in residential long-term

       6      care, the need for quality nursing homes, nursing

       7      homes that provide the right care at the right time

       8      by the right staff, is more acute than ever.

       9             But there has been --

      10             I'm sorry.

      11             But there has been -- there is historical

      12      neglect of long-term care, and nursing homes have

      13      been marginalized, even siloed, and denied a seat at

      14      the health-care table for policy reimbursement

      15      issues.

      16             The increasing complexity of caring for

      17      people in long-term care has never been recognized,

      18      resulting in chronic understaffing, low pay, and

      19      inadequate resources.

      20             The current state of nursing homes, coupled

      21      with the virulence of COVID-19, has created the

      22      perfect storm that has led to so many deaths.

      23             While the vast majority of nursing staff have

      24      strived to provide the best possible care, we're now

      25      witness to the impact of the shocking lack of









































                                                                   603
       1      resources and reporting that severely hampered the

       2      ability to pivot from everyday care to effective

       3      infection prevention and crisis management.

       4             It is disheartening to see the virus ravage

       5      even the most excellent nursing homes, and see blame

       6      cast upon them, when they have exhausted all the

       7      efforts to procure personal protective equipment and

       8      adequately manage COVID patients transferred from

       9      the hospitals.

      10             The -- many of the issues contributing to the

      11      perfect storm are longstanding, and it will

      12      necessitate both immediate response and a long-term

      13      strategy.

      14             One of the first issues that needs to be

      15      addressed is to ensure that providers of

      16      long-term-care services are at the table as full

      17      partners with hospitals when setting policy and

      18      reimbursement rates.

      19             There should be a partnership formed between

      20      these two entities as equal partners, and not one

      21      bigger than the other, to ensure collaboration and

      22      coordination of care, as well as equitable

      23      distribution of dollars.

      24             Our society has long been hospital-centric

      25      with community-based care a second thought.









































                                                                   604
       1             Throughout the months of March, April, and

       2      even May, hospitals received the lion's share of

       3      personal protective equipment, while nursing home

       4      administrators went to parking lots in New Jersey,

       5      or anywhere, to find whatever medical supplies they

       6      could in order to protect their staff.

       7             In the meantime, staff often had to use

       8      garbage bags as gowns and handkerchiefs as masks.

       9             When the CARES Act was passed in July, it

      10      allocated $175 billion for hospitals, less than

      11      5 billion for nursing homes, affected by COVID-19.

      12             Nursing homes are now experiencing a

      13      dwindling census, as people are afraid to put their

      14      loved ones into nursing homes, and fewer elective

      15      surgeries are resulting in fewer admissions for

      16      rehabilitation at the Medicare rate.

      17             With nursing homes relying on mostly

      18      Medicaid-only payments because of the long-term care

      19      payments-structured system we have, nursing homes

      20      are in financial distress.

      21             Layoffs and decreased capacity could be in

      22      their immediate future unless health-care dollars

      23      are distributed in a way that recognizes the value

      24      and need for quality care with older people for whom

      25      home is no longer a viable option.









































                                                                   605
       1             The second issue that needs to be addressed

       2      immediately is the workforce in long-term care.

       3             Ensuring quality and cost-effective care at

       4      any time, but especially at a time of crisis,

       5      requires a professional staff that bases decisions

       6      and practice on evidence as a critical solution to

       7      increased quality, while decreasing cost to the

       8      overall system.

       9             A study done by CMS, done at nursing homes

      10      with greater RN staff numbers, has significantly

      11      fewer hospital admissions.

      12             Another study, mentioned earlier, done in

      13      Connecticut on the 215 nursing homes, found those

      14      with higher RN staffing and quality ratings had

      15      better control of the coronavirus.

      16             None of this evidence, however, has ever been

      17      considered in setting policy.

      18             In fact, CMS requires only one RN for 8 hours

      19      a day in the nursing home.

      20             In addition, a lower pay scale in long-term

      21      care as compared to hospitals means it's harder to

      22      recruit, not just RNs, but also direct caregivers.

      23             Direct caregivers are the eyes and ears of

      24      the residents, yet turnover is very high because the

      25      pay and the -- and the pay is low and the difficult









































                                                                   606
       1      workload they have.

       2             There must be a staff with an appropriate

       3      number of professionals and direct caregivers to

       4      navigate through crises.

       5             Many of us have had a loved one in long-term

       6      care.  And if you have not, you will.

       7             We need our nursing homes to have the

       8      resources and ability to not just be regulated and

       9      meet regulations, but also to provide the best care

      10      to keep people functioning at their own best level,

      11      address what matters to them, and allow each one a

      12      peaceful and dignified death.

      13             Thank you so much.

      14             SENATOR RIVERA:  Thank you so much,

      15      Dr. Cortes.

      16             Last, but certainly not least, Mr. Lieberman.

      17             GEOFF LIEBERMAN:  Well, thank you very much.

      18             Thank you all for waiting for me.  I really

      19      appreciate it.

      20             SENATOR RIVERA:  We were all holding

      21      [indiscernible] Lieberman.  [Indiscernible]

      22      Lieberman's got to be in it.

      23             Go ahead.

      24             GEOFF LIEBERMAN:  Well, good evening.

      25             I am Geoff Lieberman, executive director of









































                                                                   607
       1      the Coalition of Institutionalized Aged and

       2      Disabled, an advocacy organization serving

       3      [indiscernible] residents in New York City.

       4             New York State's response to the COVID-19

       5      pandemic in adult homes was to issue guidance that

       6      the State expected facilities to follow, in the

       7      [indiscernible] -- in the absence, for far too long,

       8      of testing, adequate PPE for residents and staff,

       9      and on-site monitoring and inspections by the

      10      New York State Department of Health.

      11             Since mid-March, CIAD has fielded and made

      12      phone calls to residents, and stayed in constant

      13      touch with resident counsel officers and other

      14      residents.

      15             They have provided us with a significant

      16      amount of information about conditions in the homes

      17      during the crisis.

      18             This is contrasted with the health

      19      department's reliance on communications with

      20      adult-home administrators to monitor what was

      21      happening.

      22             The information we collected includes the

      23      numbers of resident deaths in the homes, and how

      24      well facilities were carrying out the New York State

      25      Department of Health's guidance on social distancing









































                                                                   608
       1      and cohorting to prevent the spread of infection.

       2             Based upon information we have received from

       3      residents, we have tallied, approximately,

       4      250 resident deaths from 28 homes in New York City.

       5             To confirm those numbers as best we could, we

       6      were able to identify about 156 of those residents

       7      by name.

       8             There are 8 homes where reports indicate at

       9      least 20 resident deaths from COVID-19.

      10             These numbers contrast with the significantly

      11      lower numbers publicly reported on the health

      12      department's website.

      13             As of July 28, 2020, DOH reports 53 confirmed

      14      or presumed deaths from 18 homes in the 5 boroughs

      15      of New York City.

      16             Only five homes on our compiled list have

      17      reported fatalities to the health department.

      18             The misleading and inadequate data collected

      19      by the DOH is based upon self-reported numbers from

      20      the adult home, and the practice of only counting

      21      deaths if they occurred in the adult home, rather

      22      than counting residents who died in the hospital.

      23             To this day, we do not know the full extent

      24      of the terrible impact the pandemic has had on

      25      adult-home residents.









































                                                                   609
       1             We also found some adult homes slow to

       2      initiate appropriate social-distancing measures.

       3             It took weeks for homes to end congregate

       4      meal service in their dining rooms.

       5             It took even longer for most to deliver

       6      medications to residents' rooms.  Before this

       7      practice was instituted, residents were crowding on

       8      elevators and waiting on long lines to receive their

       9      medications.

      10             Residents were not supervised to keep 6 feet

      11      apart on these lines.

      12             Residents also told us of the inadequate

      13      measures facilities took to cohort and quarantine

      14      residents who were suspected or confirmed to have

      15      COVID-19.

      16             Residents who were showing symptoms, or were

      17      known to be infected, freely wandered the building

      18      and facility grounds in the absence of adult-home

      19      resident staff supervision.

      20             Working in close collaboration with

      21      Mobilization for Justice, we informed the governor

      22      and the health department of these increasingly

      23      alarming conditions, and numbers of deaths res --

      24      numbers of deaths residents were reporting to us as

      25      early as March 27th.









































                                                                   610
       1             In mid-April, we, along MFJ, [indiscernible],

       2      [indiscernible], SCAA, made four demands New York

       3      State had to meet to ensure the health and safety of

       4      residents.

       5             These demands are as important and relevant

       6      now as they were then.

       7             They are:

       8             Testing for all residents and staff, to

       9      identify hot spots, and inform staffing and

      10      cohorting measures to reduce the spread of

      11      infection.

      12             Ensure compliance by unannounced in-person

      13      inspections by the department of health.

      14             Number 3:  Relocating residents to hotels or

      15      motels to reduce density in the adult homes.

      16             And, Number 4:  Deploy additional staff and

      17      medical personnel, where needed, to ensure social

      18      distancing, cohorting, and services and care,

      19      especially for infected residents.

      20             We made several other additional

      21      recommendations.

      22             Along with MFJ and ADAN, we urged the state

      23      legislature to pass A4416 and Senate Bill 3460A,

      24      legislation that will protect residents by

      25      strengthening the enforcement of the state's









































                                                                   611
       1      adult-home regulations.

       2             As Dan has mentioned, we also would ask DOH

       3      to revise its guidance of adult homes regarding

       4      economic-impact payments to residents.

       5             Finally, we would recommend that the State

       6      consider funding the purchase of tablets and laptops

       7      for adult-home resident use.

       8             Not enough attention has been focused on the

       9      increased isolation adult-home residents have

      10      suffered because of COVID-19, contributed --

      11      contributing to increased loneliness, stress, and

      12      severe reduction in the access of residents -- that

      13      residents have to family, friends, and community.

      14             Thanks very much.

      15             SENATOR RIVERA:  Thank you so much,

      16      Mr. Lieberman.

      17             And, for this last round, we will be leading

      18      off with the Assembly.

      19             ASSEMBLYMEMBER BRONSON:  And I do not see any

      20      assemblymembers who have raised their hand.

      21             Mr. Gottfried?

      22             ASSEMBLYMEMBER GOTTFRIED:  And I guess it's

      23      not so much a question, but just to say that, this

      24      group of witnesses, and many that we have heard all

      25      day today, are just extraordinary assets and --









































                                                                   612
       1      and -- and heroes for New York.

       2             And as I've listened to a lot of their

       3      testimony, and I say to myself:  Why does all this

       4      still need to be said?  Why isn't it being done?

       5             And I keep thinking of what the author

       6      Upton Sinclair said a long time ago, which is, "That

       7      it is difficult to persuade a man of something when

       8      his salary depends on him not being persuaded of

       9      it."

      10             That's it.

      11             SENATOR RIVERA:  It is -- it's what happens

      12      when 9:00 -- see, I've been with this gentleman with

      13      enough hearings that went long, to know that, by

      14      9 p.m., he gets mad poetic.

      15             So expect a couple more couplets before we're

      16      done.

      17             But, for now, we have, on the Senate side,

      18      Senator May, recognized for 5 minutes.

      19             SENATOR MAY:  Thank you, thank you.

      20             And I also just want to compliment you, and

      21      everybody we heard from today, with so much

      22      expertise and so much passion.  It's been really

      23      inspiring.

      24             I have an actual question, though, for

      25      Dr. Cortes.









































                                                                   613
       1             I feel like in the course of the day, we've

       2      heard two really different stories about

       3      nursing-home finances.

       4             And I would appreciate it if you would help

       5      me make sense of that.

       6             Now, I used to teach Russian literature, so

       7      I can handle paradox.  But I still -- this one is --

       8      is bothering me.

       9             So, on the one hand, the nursing homes are in

      10      all this financial trouble, as you detailed.

      11             On the other hand, we're hearing that it's a

      12      boondoggle for hedge funds, and things like that, in

      13      the for-profit ones.

      14             And both arguments have been persuasive.

      15             So I'd like to hear from you, sort of, how do

      16      you balance those?

      17             DR. TARA CORTES:  I'm speaking more on behalf

      18      of the not-for-profit nursing homes.

      19             And we have -- where -- the dependence on

      20      Medicare funding for rehabilitation of patients has

      21      been very, very high.

      22             Now that elective surgeries have gone down,

      23      and continue to be down, people are not going to

      24      hospitals now to get elective surgeries, so they

      25      have continued to be down.









































                                                                   614
       1             And the fact that, yes, we have lost patients

       2      through death, but patients are not being admitted.

       3             People are afraid to put their loved ones

       4      into nursing homes because of all of the terrible

       5      media that's been going on.

       6             So the -- they're running at, 60, 70 percent

       7      capacity.  And medicaid payments coming for 60 to

       8      70 percent of the capacity just don't do it.

       9             And it's why they can't have adequate

      10      staffing.  They can't have -- they can't have an

      11      adequate number of professional nurses on board.

      12      You just don't have enough money, and salaries do

      13      run lower.  They run around $10,000 less for a

      14      starting nurse in a nursing home than in a hospital.

      15             So nurses won't go to nursing homes.  So I'll

      16      go to the hospital, and I get pay raise faster, and

      17      I get reimbursement on my tuition.

      18             Without making some adjustments in the

      19      structure of payment for long-term care, our

      20      long-term-care industry I think, in the long run, is

      21      in trouble.

      22             To really get quality staff, it's far more

      23      complex today in nursing homes than it was 5 years,

      24      10 years ago.  Even last year, it's becoming more

      25      complex.









































                                                                   615
       1             And when you take dementia and you

       2      superimpose it on top of patients with multiple

       3      chronic conditions, you've got complex patients.

       4             So we just need to find, I think, a payment

       5      structure that allows nursing homes to have the

       6      right kind of staff, so they can give the right kind

       7      of care, and our patients -- our residents can live

       8      in a dignified manner and die a dignified death.

       9             SENATOR MAY:  And should we be worried about

      10      the other side of the story?

      11             And money [indiscernible cross-talking] --

      12             DR. TARA CORTES:  For profit?

      13             SENATOR MAY:  Yeah.

      14             DR. TARA CORTES:  I think we should be.

      15             I think -- I think you're -- I think we

      16      should be.

      17             I think we should be looking very carefully

      18      at how they are allocating their resources, and what

      19      they're -- not what they're meeting -- whether or

      20      not they're meeting the regulations, but, what are

      21      the quality outcomes?

      22             What are the outcomes that their residents

      23      actually have that reflect person-centered care and

      24      good values?

      25             I think that we're not looking at the right









































                                                                   616
       1      things if we're just looking at, well, what are the

       2      regulations, and do they meet those?

       3             SENATOR MAY:  Okay.

       4             DR. TARA CORTES:  I think we need to be more

       5      specific on, what are resident outcomes that reflect

       6      quality care?

       7             SENATOR MAY:  Thank you.

       8             Yeah, I have been wondering about the way

       9      nursing homes are rated.  There's a rating system.

      10             And I read that, even in highly-rated nursing

      11      homes, the racial disparities are very stark, even

      12      worse in some of the more highly-rated nursing

      13      homes.

      14             And it made me start wondering, what are

      15      these ratings based on?

      16             And -- and it seems like it's inputs-based

      17      and not outcomes-based.

      18             DR. TARA CORTES:  I think --

      19             SENATOR MAY:  And so --

      20             DR. TARA CORTES:  I think you're right.

      21      Absolutely.

      22             SENATOR MAY:  That's, I gather, at a federal

      23      level.  But, if there's a way we can rethink that,

      24      that might be a great move.

      25             DR. TARA CORTES:  Yes.









































                                                                   617
       1             SENATOR MAY:  Okay.

       2             Thank you very much.

       3             DR. TARA CORTES:  Thank you.

       4             SENATOR RIVERA:  Do you have a poem for us,

       5      Dick?

       6             If you don't -- oh, you do?

       7             ASSEMBLYMEMBER GOTTFRIED:  Well, I'm muted.

       8             Oh, okay.

       9             SENATOR RIVERA:  No, you're not muted.

      10             ASSEMBLYMEMBER GOTTFRIED:  I can just correct

      11      the Upton Sinclair quote.

      12             "It is difficult to get a man to understand

      13      something when his salary depends upon his not

      14      understanding it."

      15             SENATOR RIVERA:  I told you; I told you he

      16      gets like that.

      17             ASSEMBLYMEMBER GOTTFRIED:  Great words to

      18      live by.

      19             SENATOR RIVERA:  Back to the Assembly.

      20             ASSEMBLYMEMBER BRONSON:  Yes, we have up

      21      next, Assemblymember Tom Abinanti for 3 minutes.

      22             ASSEMBLYMEMBER ABINANTI:  Yes, I would like

      23      to join everyone else, and thank all of you for

      24      staying with us so long.

      25             And adding a different perspective, we heard









































                                                                   618
       1      a lot about nursing homes.

       2             Somewhere during the day I mentioned that

       3      there were other long-term care, congregate-care

       4      facilities.  And I wanted to hear about them.

       5             So I appreciate your highlighting those.

       6             I'm not going to ask too much other than,

       7      what do we do differently in the future?

       8             Are there plans out there?

       9             Is there conversation going on with the

      10      health department?

      11             And, finally, is the health department

      12      overwhelmed, and should control of the facilities

      13      you're talking about be somewhere else?

      14             Is the health department trying to do too

      15      much at this time?

      16             DANIEL ROSS:  I think so.

      17             Adult-care facilities used to be under the

      18      auspices of the -- or, the oversight of the

      19      department of social services.  And when that

      20      department was dismantled, it got moved to health.

      21             And I think that probably makes sense as more

      22      and more adult-care facilities become

      23      assisted-living programs and receive Medicaid

      24      funding, or become assisted-living residences and

      25      have licensed home-care services agencies,









































                                                                   619
       1      personnel, or child personnel on-site.

       2             And so I think that's probably fine.

       3             You're probably right that they're

       4      overwhelmed to some degree.

       5             There have probably been slashed budgets, so

       6      there are fewer people to enforce the regulations,

       7      which leads to a problem.

       8             And I indicated one action item that the

       9      legislature can take up, and I know the bill passed

      10      recently out of the Assembly Health Committee.

      11             But something else that's concerning, to

      12      address, a question that came up earlier I think

      13      from Senator May, is:  Right now, the department of

      14      health doesn't collect demographic data, racial

      15      data, about residents of nursing homes or adult-care

      16      facilities.

      17             That information is available from the

      18      federal government through the MDS (the minimum

      19      dataset), which all nursing homes have to report to

      20      the federal government.

      21             But DOH doesn't have racial data, you know,

      22      demographic data, that would be really helpful to

      23      kind of analyzing what's going on.

      24             What are those disparities?  What are the

      25      causes of those disparities?









































                                                                   620
       1             And digging down, and trying to correct

       2      those.

       3             GEOFF LIEBERMAN:  I would quickly add, you

       4      asked if the health department, if we were engaged

       5      in any discussions with them regarding the future.

       6             And, unfortunately, we're not quite sure that

       7      there are any specific plans that the New York State

       8      Health Department has to ameliorate the impact of a

       9      second wave that would strike adult-home residents

      10      and assisted-living residents.

      11             And we're quite concerned about it.

      12             As I mentioned in my testimony, we think that

      13      the demands that we've made over the last couple of

      14      months are still incredibly important.

      15             And, although the terrible instances of

      16      death, and what happened to nursing home residents,

      17      you know, rightfully, took center stage.

      18             SENATOR RIVERA:  If you could actually wrap

      19      up, Mr. Lieberman, please.

      20             GEOFF LIEBERMAN:  I'm just afraid that

      21      adult-home residents are in the shadows in this

      22      regard.

      23             SENATOR RIVERA:  Thank you.

      24             Hey, Dick, I've got one for you.

      25             "Roses are red, violets are blue, oh, how









































                                                                   621
       1      I wish Cuomo would actually listen to you."

       2             Next, we've got Senator Tom O'Mara, recognize

       3      him for 5 minutes, please.

       4             SENATOR O'MARA:  Uh, yes, we all do get a

       5      little bit giddy at this time of night.

       6             Thank you for that one, Chairman Rivera.

       7             I wish that Commissioner Zucker would listen

       8      to you all as well.

       9             I want to echo Senator May's comments, that

      10      we've heard a lot of great expert testimony with

      11      some great ideas here today.

      12             And thank you for all of that.

      13             I think we came up short with the executive

      14      branch of government today on this hearing, with the

      15      testimony from the health commissioner,

      16      Howard Zucker, that consisted of little more than

      17      his own self-serving CYA PowerPoint presentation.

      18             Coming in with an implausible response that

      19      they don't have any figures on how many nursing home

      20      patients that were transferred to hospitals, died

      21      there, which has been probably the biggest topic of

      22      concern that has been in the media, in the public

      23      arena, surrounding the governor's March 24th

      24      order, that nursing homes accept COVID-positive

      25      patients.









































                                                                   622
       1             I find it further implausible that the

       2      commissioner of health was not aware of the opinion

       3      and statement from the American Medical Directors

       4      Association, Society for Long-Term Care Medicine,

       5      that was issued the day after the governor and

       6      Commissioner Zucker came out with their mandate,

       7      saying how flawed it was, and what a wrong-headed

       8      policy it was.

       9             In fact, two days, or three days, after that

      10      initial statement, the American Medical Directors

      11      Association and The Society for Long-Term Care

      12      Medicine was joined, in a follow-up statement, with

      13      the American Health Care Association and the

      14      National Center for Assisted Living, again, with

      15      concerns over the wrong-headed policy that had been

      16      directed.

      17             The fact that Commissioner Zucker claims he's

      18      unaware of those positions from the leading

      19      associations in the country, is totally implausible.

      20             I request of the chairs of this hearing,

      21      since we in the minority have no subpoena power; we

      22      have no ability to call witnesses ourselves, other

      23      than to make requests; and I would note that the

      24      witness list for today, we received about this time

      25      last night, not much fairness there, and we deserve









































                                                                   623
       1      better.

       2             I ask that you recall Zucker to be a witness

       3      at the next round of this hearing on August 10th.

       4             And, further, that you call the executive

       5      director of the American Medical Directors

       6      Association, Society for Long-Term Care Medicine,

       7      Chris Laxton, to come and testify about their

       8      opinion and concerns over this, and how that was

       9      directly transmitted to Commissioner Zucker and the

      10      governor's office.

      11             We deserve answers in the legislature from

      12      this administration.

      13             We clearly did not get them today.

      14             I hope we make some progress next Monday,

      15      August 10th, or continue these hearings

      16      thereafter.

      17             Thank you, Chairman.

      18             SENATOR RIVERA:  Thank you, Senator O'Mara.

      19             Back to the Assembly.

      20             ASSEMBLYMEMBER BRONSON:  And I believe it's

      21      coming right back to you, Mr. Chair.

      22             SENATOR RIVERA:  All right.

      23             Last, but not least, cleaning up,

      24      Senator Sue Serino, recognize the lady for

      25      5 minutes, please.









































                                                                   624
       1             SENATOR SERINO:  Thank you, Mr. Chairman.

       2             And, Dr. Cortes, I'd like to say I really

       3      appreciate your comments about the facilities need

       4      to be considered equal partners, the hospitals and

       5      the nursing homes.

       6             And that's something that I believe that we

       7      need to create more partnerships, and I really take

       8      to heart.

       9             So thank you very much for that.

      10             And I think it's very fitting that we're

      11      ending the day with this panel because you all

      12      really drove the main points home.

      13             The reporting is clearly flawed.

      14             These facilities are not getting the

      15      resources they need to really ensure real quality

      16      care.

      17             And we need to do better to ensure these

      18      vulnerable New Yorkers are protected, and those who

      19      care for them are absolutely supported.

      20             And I want to echo with Senator O'Mara's

      21      point, too:  I really wish DOH (the department of

      22      health) came prepared with more than the governor's

      23      establishment talking points.

      24             But I really hope that at next week's hearing

      25      we can dive even deeper, because New Yorkers deserve









































                                                                   625
       1      answers.

       2             And I think, today, we should be doing all we

       3      can to send a message to residents, and that there's

       4      a bipartisan commitment to get them.

       5             So thank you very much, everybody.

       6             This was a great panel today.

       7             Thank you.

       8             SENATOR RIVERA:  Thank you, Senator Serino.

       9             Assemblymember Gottfried, do you have any

      10      closing words that you'd like to share with us,

      11      maybe a poem or two?

      12             ASSEMBLYMEMBER GOTTFRIED:  No, I think I'm

      13      all poemed-out for tonight.

      14             I'll see if I can come up with a couple of

      15      choice lines for next week.

      16             SENATOR RIVERA:  Gotcha.

      17             Thank you all on the panel.

      18             What was that?

      19             ASSEMBLYMEMBER GOTTFRIED:  I think this has

      20      been a really terrific hearing, both in terms of the

      21      witnesses who have testified, and the real elements

      22      of social-justice understanding that a lot of them

      23      have injected into the discussion, and the questions

      24      from our colleagues as well.

      25             SENATOR RIVERA:  I agree.









































                                                                   626
       1             I think it was a very -- it was the beginning

       2      of the process.

       3             I think, in that, I certainly agree with you,

       4      Senator O'Mara, we have much more digging to do.

       5             But I thank each and every single one of the

       6      people who testified today.

       7             We have much more information to go on, but

       8      certainly deeper to dig.

       9             Thank you, everyone, for continuing to tuning

      10      in.

      11             Thank you for the staff that is in the

      12      background doing all the work to make sure this

      13      functions; I applaud all of you.

      14             I know Stanley, certainly.  But, everybody

      15      else who's back there, whose name I might not know

      16      or remember, thank you for it.

      17             And, we will see you again.

      18             Probably, they're working tomorrow.

      19             We might not be -- we're going to be here

      20      next week for the next hearing on this.

      21             But thank you, everybody, for tuning in.

      22             And, with that, I am signing off.

      23             Have a good night, folks.

      24                (Whereupon, the virtual joint committee

      25        public hearing concluded, and adjourned.)