1
1 BEFORE THE NEW YORK STATE SENATE FINANCE
AND ASSEMBLY WAYS AND MEANS COMMITTEES
2 -----------------------------------------------------
3 JOINT LEGISLATIVE HEARING
4 In the Matter of the
2021-2022 EXECUTIVE BUDGET
5 ON HEALTH
6 -----------------------------------------------------
7
Virtual Hearing
8 Conducted via Zoom
9 February 25, 2021
9:42 a.m.
10
11 PRESIDING:
12 Senator Liz Krueger
Chair, Senate Finance Committee
13
Assemblywoman Helene E. Weinstein
14 Chair, Assembly Ways & Means Committee
15 PRESENT:
16 Senator Thomas F. O'Mara
Senate Finance Committee (RM)
17
Assemblyman Edward P. Ra
18 Assembly Ways & Means Committee (RM)
19 Senator Gustavo Rivera
Chair, Senate Committee on Health
20
Assemblyman Richard N. Gottfried
21 Chair, Assembly Health Committee
22 Senator Neil Breslin
Chair, Senate Insurance Committee
23
Assemblyman Kevin A. Cahill
24 Chair, Assembly Committee on Insurance
2
1 2021-2022 Executive Budget
Health
2 2-25-21
3 PRESENT: (Continued)
4 Senator Patrick M. Gallivan
5 Assemblyman Kevin M. Byrne
6 Senator Pamela Helming
7 Assemblyman Ken Blankenbush
8 Senator Kevin Thomas
9 Assemblyman Khaleel M. Anderson
10 Senator James Skoufis
11 Assemblywoman Rodneyse Bichotte Hermelyn
12 Assemblyman Harry B. Bronson
13 Senator Brad Hoylman
14 Assemblyman Edward C. Braunstein
15 Assemblywoman Vivian E. Cook
16 Senator Todd Kaminsky
17 Assemblyman Nader J. Sayegh
18 Senator Rachel May
19 Assemblyman Phil Steck
20 Assemblywoman Marjorie Byrnes
21 Assemblyman Jonathan G. Jacobson
22 Assemblyman John McDonald
23 Senator Alessandra Biaggi
24 Assemblywoman Linda B. Rosenthal
3
1 2021-2022 Executive Budget
Health
2 2-25-21
3 PRESENT: (Continued)
4 Assemblyman Steven Cymbrowitz
5 Assemblywoman Pamela J. Hunter
6 Senator Pete Harckham
7 Assemblyman Jake Ashby
8 Assemblywoman Alicia Hyndman
9 Senator Samra G. Brouk
10 Assemblyman Erik M. Dilan
11 Assemblywoman Amy Paulin
12 Assemblyman Demond Meeks
13 Assemblywoman Yuh-Line Niou
14 Senator Patricia A. Ritchie
15 Assemblywoman Michaelle Solages
16 Assemblyman John Salka
17 Senator Susan Serino
18 Assemblyman Thomas J. Abinanti
19 Assemblywoman Aileen M. Gunther
20 Assemblywoman Melissa Miller
21 Assemblyman Charles Barron
22 Assemblywoman Rebecca A. Seawright
23 Senator Daniel G. Stec
24 Assemblyman Philip A. Palmesano
4
1 2021-2022 Executive Budget
Health
2 2-25-21
3 PRESENT: (Continued)
4 Senator Robert G. Ortt
5 Assemblyman Kenneth Zebrowski
6 Senator Edward A. Rath III
7 Assemblyman Jarett Gandolfo
8 Assemblywoman Deborah J. Glick
9 Senator James Tedisco
10 Assemblyman Josh Jensen
11 Senator Joseph A. Griffo
12 Assemblywoman Nily Rozic
13 Assemblyman Michael J. Norris
14 Senator Peter Oberacker
15 Assemblyman Daniel Rosenthal
16 Senator Julia Salazar
17 Assemblyman J. Gary Pretlow
18 Assemblywoman Karines Reyes
19 Senator Phil Boyle
20 Assemblywoman Phara Souffrant Forrest
21 Assemblyman Colin Schmitt
22 Senator George M. Borrello
23 Assemblyman Andrew Hevesi
24 Senator Mike Martucci
5
1 2021-2022 Executive Budget
Health
2 2-25-21
3 PRESENT: (Continued)
4 Senator Jeremy A. Cooney
5 Assemblyman N. Nick Perry
6
7
8
9 LIST OF SPEAKERS
10 STATEMENT QUESTIONS
11 Linda Lacewell
Superintendent
12 NYS Department of Financial
Services 19 27
13
Howard Zucker, M.D., J.D.
14 Commissioner
NYS Department of Health
15 -and-
Donna Frescatore
16 NYS Medicaid Director 137 147
17 Erin E. Ives
Acting Medicaid Inspector General
18 NYS Office of the Medicaid
Inspector General 459 466
19
20
21
22
23
24
6
1 2021-2022 Executive Budget
Health
2 2-25-21
3 LIST OF SPEAKERS, Continued
4 STATEMENT QUESTIONS
5 Bea Grause
President
6 Healthcare Association of NYS
(HANYS)
7 -and-
Dr. Camille Clare
8 FACOG Board Chair
American College of Obstetricians
9 and Gynecologists, District II
-and-
10 Maureen Regan
President
11 New York State Society of
Physician Assistants
12 -and-
David Rich
13 Executive Vice President,
Government Affairs, Communications
14 and Public Policy
Greater New York Hospital
15 Association
-and-
16 Dr. Hany Abdelaal
President
17 VNSNY CHOICE Health Plans
-on behalf of-
18 New York State Coalition of
MLTC and PACE Plans 483 503
19
20
21
22
23
24
7
1 2021-2022 Executive Budget
Health
2 2-25-21
3 LIST OF SPEAKERS, Continued
4 STATEMENT QUESTIONS
5 Milly Silva
Executive Vice President
6 1199SEIU United Healthcare
Workers East
7 -and-
Bryan O'Malley
8 Executive Director
Consumer Directed Personal
9 Assistance Association of NYS
-and-
10 Alyssa Lovelace
Director of Policy
11 and Advocacy
Home Care Association of
12 New York State
-and-
13 Lauri Cole
Executive Director
14 NYS Council for Community
Behavioral Healthcare 535 551
15
16
17
18
19
20
21
22
23
24
8
1 2021-2022 Executive Budget
Health
2 2-25-21
3 LIST OF SPEAKERS, Continued
4 STATEMENT QUESTIONS
5 Beth Finkel
State Director
6 AARP New York
-and-
7 Dr. Talya Schwartz
President and CEO
8 Metro Plus Health Plan
-on behalf of-
9 Coalition of New York State
Public Health Plans
10 -and-
James W. Clyne Jr.
11 President/CEO
LeadingAge New York
12 -and-
Heidi Siegfried
13 Director of Health Policy
Center for Independence of
14 the Disabled, NY
-and-
15 Douglas Hovey
President and CEO
16 Independent Living, Inc. and
Independent Home Care, Inc. 553 569
17
18
19
20
21
22
23
24
9
1 2021-2022 Executive Budget
Health
2 2-25-21
3 LIST OF SPEAKERS, Continued
4 STATEMENT QUESTIONS
5 Sarah Ravenhall
Executive Director
6 NYS Association of County
Health Officials
7 -and-
Eric Linzer
8 President and CEO
New York Health Plan Association
9 -and-
Dr. Bonnie Litvack
10 President
Medical Society of the
11 State of New York
-and-
12 Kathy Febraio
President and CEO
13 New York State Association
of Health Care Providers 592 606
14
Rose Duhan
15 President and CEO
Community Health Care
16 Association of NYS
-and-
17 Wendy Stark
Executive Director
18 Callen-Lorde Community
Health Center
19 -and-
Chris Norwood
20 Executive Director
Health People 618 628
21
22
23
24
10
1 2021-2022 Executive Budget
Health
2 2-25-21
3 LIST OF SPEAKERS, Continued
4 STATEMENT QUESTIONS
5 Bill Hammond
Director of Health Policy
6 Empire Center for Public Policy
-and-
7 Charles Bell
Program Director, Advocacy
8 Consumer Reports
-and-
9 Leishia B. Smallwood
Director
10 NYS Area Health Education
Center System (AHEC)
11 -and-
Linda H. Aiken
12 Professor and Director
Center for Health Outcomes
13 and Policy Research
University of Pennsylvania 633 647
14
Amanda Dunker
15 Policy Associate
Health Care for All New York
16 -and-
Elisabeth Benjamin
17 VP of Health Initiatives
Community Service Society of NY
18 -and-
Lara Kassel
19 Coalition Coordinator
Medicaid Matters New York
20 -and-
Louise Cohen
21 CEO
Primary Care Development Corp.
22 -and-
Anthony Feliciano
23 Director
Commission on the Public's
24 Health System 669 687
11
1 2021-2022 Executive Budget
Health
2 2-25-21
3 LIST OF SPEAKERS, Continued
4 STATEMENT QUESTIONS
5 Lauren Rowley
Senior VP of State Affairs
6 Pharmaceutical Care
Management Association (PCMA)
7 of New York
-and-
8 Mike Duteau
President
9 Chain Pharmacy Association of NYS
-on behalf of-
10 Community Pharmacy Association of
New York State
11 -and-
Thomas D'Angelo
12 President
Pharmacists Society of
13 the State of New York 692 705
14 Julie Hart
Sr. Director, NY Govt. Relations
15 American Cancer Society
Cancer Action Network
16 -and-
Charles King
17 CEO
Housing Works 720 726
18
Bobbie Sackman
19 Member Leader
New York Caring Majority
20 -and-
Lisa Newcomb
21 Executive Director
Empire State Association of
22 Assisted Living
-and-
23 Stephen Hanse
President and CEO
24 NYS Health Facilities Association
NYS Center for Assisted Living 730 741
12
1 2021-2022 Executive Budget
Health
2 2-25-21
3 LIST OF SPEAKERS, Continued
4 STATEMENT QUESTIONS
5 Emily Frankel
Government Affairs Manager
6 Nurse-Family Partnership
-and-
7 LuAnne Brown
CEO, Buffalo Prenatal Perinatal Network
8 Chair
Association of Perinatal Networks
9 -and-
Alice Bufkin
10 Director of Policy for Child
and Adolescent Health
11 Citizens' Committee for Children
-and-
12 Steven Sanders
Executive Director
13 Agencies for Children's
Therapy Services 746 761
14
Ralph Palladino
15 2nd Vice President
Clerical-Administrative
16 Employees Local 1549
-and-
17 Judith Cutchin
President, NYSNA NYCHH/Mayoral
18 Executive Council
NYS Nurses Association
19 -and-
Dan Egan
20 Executive Director
Feeding New York State 776 785
21
22
23
24
13
1 CHAIRWOMAN KRUEGER: Good morning.
2 I'm Senator Liz Krueger, chair of the
3 Senate Finance Committee. I'm joined in
4 partnership with my colleague from the
5 Assembly, Helene Weinstein, chair of the Ways
6 and Means Committee.
7 Today is our last budget hearing for
8 '21-'22, a hearing on the Governor's Health
9 Executive Budget.
10 It is February 25th. It's a little
11 past 9:42 in the morning; we're a little
12 late.
13 I want to welcome you all to our
14 virtual budget hearings, a new model for us
15 because of the pandemic. It's actually been
16 going quite well. More people have been
17 participating than ever before, both
18 legislators and public who wishes to testify.
19 Today is the final of the 13 hearings
20 conducted by the joint fiscal committees of
21 the Legislature regarding the Governor's
22 proposed budget for state fiscal year
23 '21-'22. These hearings are conducted
24 pursuant to the New York State Constitution
14
1 and our Legislative Law.
2 Today the Senate Finance Committee and
3 Assembly Ways and Means Committee will hear
4 testimony concerning the Governor's proposed
5 budget for the Department of Health, the
6 Office of Medicaid Inspector General, and the
7 Department of Financial Services -- which has
8 many functions, but today will be in
9 relationship to health insurance issues.
10 Representing each of the agencies, I
11 would like to reference that we will be
12 joined by Linda Lacewell, Superintendent of
13 the Department of Financial Services first,
14 then Erin Ives, acting Medicaid Inspector
15 General, and then Dr. Howard Zucker,
16 Commissioner of Health, along with Donna
17 Frescatore, the Medicaid Director, Department
18 of Health.
19 Because of a scheduling conflict,
20 Dr. Zucker and his people cannot be here
21 till, at earliest, 11:00 a.m. So if they
22 have gotten here and we are on a panel, they
23 will wait till we complete that panel and
24 then we will shift to the Health
15
1 Commissioner.
2 Following each testimony there will be
3 some time for questions from the chairs of
4 the fiscal committees and the legislators
5 from the other lead committees for today,
6 which would be the Health Committee --
7 Gustavo Rivera, from the Senate;
8 Dick Gottfried, from the Assembly -- and the
9 Insurance Committee -- Kevin Cahill, chair
10 from the Assembly, Neil Breslin, chair from
11 the Senate.
12 After other chairs and rankers ask
13 their questions, there will be an opportunity
14 for members from all three of these
15 committees to ask questions.
16 And then finally, after we complete
17 the government representatives, there will be
18 a time to members of the public who have
19 signed up to briefly give us an overview of
20 their testimony and take some questions.
21 Anyone is welcome to have submitted
22 testimony, and it will be put up online for
23 everyone to see, all legislators and everyone
24 from the public. But it is impossible to
16
1 allow everyone to read their full testimony,
2 so many people who are interested in
3 testifying have not been able to get a slot
4 to speak at today's hearing. Because if you
5 choose to stay with us all day and night,
6 you'll know why.
7 I will now introduce members from the
8 Senate, and Assemblymember Helene Weinstein,
9 chair of the Assembly Ways and Means
10 Committee, will introduce members from the
11 Assembly.
12 In addition, I want to mention that
13 Tom O'Mara is the ranker on Finance, and he
14 will be introducing the members of his
15 conference, as will Assemblyman Ra, the
16 ranking member of Ways and Means. And then
17 we will shift to Superintendent
18 Linda Lacewell from the Department of
19 Financial Services.
20 And so just going through, to make
21 sure I get everyone who's here so far -- and
22 over the course of the day more Senators and
23 Assemblymembers will show up, and they will
24 be announced when they're here. But so just
17
1 starting with our Insurance chair, Neil
2 Breslin; Brad Hoylman, Senator Brad Hoylman;
3 Senator Rachel May; Senator Gustavo Rivera,
4 the Health chair; Senator Kevin Thomas, the
5 Consumer Affairs chair. Just continuing down
6 my master list -- sorry -- Senator James
7 Skoufis; Senator Pete Harckham; Senator Samra
8 Brouk; Senator Julia Salazar; Senator
9 Alessandra Biaggi. I told you these were big
10 committees. Everyone is going to be here
11 today.
12 I think that's it for the Democratic
13 Senators.
14 I'm sorry, Tom O'Mara, ranker, do you
15 think you can take a stab at the Republican
16 Senators? I'm seeing many of them here as
17 well.
18 SENATOR O'MARA: There's a lot on our
19 list as well, Chairwoman. Thank you.
20 We are joined on the Republican side
21 of the aisle with our Health Committee
22 ranker, Senator Pat Gallivan; our Insurance
23 Committee ranking Republican member,
24 Pam Helming. We're also joined by Senators
18
1 Dan Stec, Ed Rath, Jim Tedisco, Joe Griffo,
2 Patty Ritchie, Peter Oberacker, Phil Boyle,
3 Sue Serino, and George Borrello, who has his
4 hand up for questions already.
5 (Laughter.)
6 CHAIRWOMAN KRUEGER: Very good. I'm
7 going to pass it over to Helene Weinstein.
8 CHAIRWOMAN WEINSTEIN: Thank you,
9 Senator.
10 We too have a lot of colleagues with
11 us. We have Assemblyman Gottfried, chair of
12 our Health Committee; Assemblyman Cahill,
13 chair of the Assembly's Insurance Committee;
14 and Assemblymembers Anderson, Barron,
15 Bichotte Hermelyn, Braunstein, Bronson, Cook,
16 Cymbrowitz, Dilan, Gunther, Hunter, Meeks,
17 Niou, Paulin, Sayegh, Seawright and
18 Zebrowski. I'm sure we will have some other
19 members joining us shortly.
20 Assemblyman Ra, would you like to
21 introduce members of your conference?
22 ASSEMBLYMAN RA: Yes, thank you,
23 Chairwoman.
24 Good morning, everybody. We are
19
1 joined by Assemblyman Kevin Byrne, who is the
2 ranking member on the Health Committee;
3 Assemblyman Ken Blankenbush, who is our
4 ranking member on the Insurance Committee;
5 and Assemblymembers Missy Miller, Jarett
6 Gandolfo, Salka, Byrnes, Ashby and Jensen.
7 CHAIRWOMAN WEINSTEIN: Okay. So back
8 to the Senate to begin our first witness.
9 CHAIRWOMAN KRUEGER: Thank you.
10 And good morning and welcome, and
11 thank you for coming earlier than usual.
12 Do you have a mute on that can be
13 taken off?
14 DFS SUPERINTENDENT LACEWELL: Thank
15 you, Chair. I have unmuted.
16 CHAIRWOMAN KRUEGER: Great. Welcome.
17 DFS SUPERINTENDENT LACEWELL: Shall I
18 proceed?
19 CHAIRWOMAN KRUEGER: Oh yes, please.
20 DFS SUPERINTENDENT LACEWELL: Thank
21 you so much.
22 Good morning to Chairs Weinstein,
23 Krueger, Breslin, Cahill, Rivera and
24 Gottfried, to the ranking members, and to all
20
1 distinguished members of the State Senate and
2 Assembly.
3 Thank you for inviting me to testify
4 here today. I'm Linda Lacewell. I'm the
5 Superintendent of Financial Services at the
6 New York State Department of Financial
7 Services.
8 We do have many responsibilities, as
9 the chair indicated. As pertinent here, we
10 regulate commercial health insurance for the
11 State of New York and New Yorkers. I am
12 privileged to work for Governor Cuomo and to
13 serve all New Yorkers in this important role
14 and to work with all of you in that regard.
15 Our mission is multiple. We protect
16 New York consumers, we strengthen the
17 financial service industries in our state, we
18 safeguard markets from fraud and other
19 illegality. Our operating expenses, as you
20 know, are assessed to industry under Section
21 206 of the Financial Services Law. We
22 regulate nearly 1800 insurers with assets of
23 more than $4.7 trillion, and approximately
24 1500 banking and other financial institutions
21
1 with assets of more than 2.6 trillion.
2 We have in New York and across the
3 nation, as you know, the people of our state
4 have been enduring at least three multiple
5 overlapping crises: The global pandemic,
6 which has tested all of us and remains a
7 significant challenge even as the numbers
8 come down after the holiday spike.
9 The health crisis, of course, which
10 led to the economic and jobs crisis which has
11 adversely and disproportionately affected
12 communities of color and women in the job
13 market. Because to fight the pandemic, work
14 and social life and education of course had
15 to become remote, and many people were unable
16 to work or simply lost their jobs, leaving
17 them unable to pay their rent, their
18 mortgage, other household bills -- or even to
19 feed their family, given the loss of income.
20 Added to these two crises, of course,
21 is the cry for racial justice across the
22 country, aggravated by the disparate impact
23 of both the pandemic and the jobs crisis.
24 That crisis, of course, long predates the
22
1 first two. The legacy of discrimination
2 unfortunately, even in the great State of New
3 York, continues to impact communities of
4 color struggling with the first two crises.
5 I am proud of the role of DFS during
6 these three crises. DFS did its job
7 proactively, affirmatively and with speed.
8 We issued five emergency regulations,
9 11 circular or guidance letters, numerous
10 FAQs, both for industry and for consumers, on
11 health insurance, COVID-19 as pertinent, and
12 answered many hundreds of inquiries from
13 consumers, insurers, providers and other
14 stakeholders.
15 We issued an emergency regulation
16 waiving cost-sharing for COVID-19 testing at
17 in-network providers and facilities and
18 issued guidance on coverage of COVID-19
19 testing at pharmacies. We expanded
20 telehealth to help New Yorkers, especially in
21 underserved and rural communities. We
22 prioritized the mental health of our hero
23 essential workers by prohibiting insurers
24 from imposing cost-sharing for in-network
23
1 outpatient mental health services.
2 We also worked with insurers and
3 directed them to extend the grace period for
4 payments of health premiums for those
5 affected by the pandemic. And we then opened
6 up the exchange with the Department of Health
7 multiple times to ensure coverage could be
8 obtained.
9 We also worked with health and dental
10 insurers to return over $200 million from
11 surplus premiums, given the fact that
12 services were really not being as extensively
13 used.
14 In anticipation of the vaccine phase,
15 we proactively reviewed all the laws and
16 regulations in this regard under our purview
17 and immediately issued an emergency
18 regulation requiring immediate coverage of
19 the vaccine, without cost-sharing, including
20 protections from balance billing and
21 excessive provider charges.
22 And our consumer assistance unit
23 performed admirably as well. Notably,
24 providers or doctors even within network
24
1 began to charge consumers for PPE equipment
2 that they needed to operate, and we took
3 action there as well with the health
4 insurance industry to return funds to
5 consumers for that as well.
6 Even during the pandemic our work
7 continued, ensuring mental health and
8 substance use disorder treatment parity
9 through regulations, in conjunction with DOH.
10 We appreciate the work that we did together
11 on this, especially partnering with the
12 chair, Senator Krueger, and Assemblymember
13 Rozic to make sure consumers are aware of
14 this initiative.
15 We also continued our work benefiting
16 New York families in the LGBTQ community,
17 including the lift of the ban of gestational
18 surrogacy and ensuring that surrogates have
19 access to comprehensive health insurance and
20 independent legal counsel of their choice.
21 We also closed the loophole allowing
22 out-of-network hospitals and doctors to bill
23 consumers in excess of their in-network
24 cost-sharing for emergency services and
25
1 inpatient admissions following emergency room
2 visits. And this protects New York consumers
3 from surprise medical bills, a matter we have
4 worked on together with the Legislature for
5 years.
6 We are fully engaging with our
7 shareholders, and the Administrative
8 Simplification Workgroup has been meeting and
9 their work is going on apace with all the
10 stakeholders in this matter. We also
11 established, following legislation last year,
12 the Drug Accountability Board, a panel of
13 experts that will guide us as we carry out
14 our new statutory power over drug price
15 spikes. And we have announced our first set
16 of investigations on drugs that are
17 COVID-related.
18 As you know, the two primary matters
19 in the budget that reflect -- with respect to
20 our purview are PBMs and telehealth.
21 Pharmaceutical drug costs, as you
22 know, are one of the biggest drivers of
23 health insurance premium increases. Pharmacy
24 benefit managers, or PBMs, have an outsize
26
1 role in the sale and pricing of these drugs,
2 as they're on both sides of the table, and
3 they keep a percentage of the spread in that
4 regard. They negotiate rebates from drug
5 manufacturers and decide how much if any to
6 pay on them. There are many potential
7 conflicts of interest, and we must address
8 this issue to help bring health prices under
9 control.
10 This would require PBMs to immediately
11 register with DFS and, by 2023, to be
12 licensed by us, with a code of conduct and
13 detailed prescriptive rules to govern the
14 behavior and cabin the conflicts and generate
15 transparency of what is essentially a black
16 box industry.
17 On telehealth, I identified for you
18 the work we've already done. We need to make
19 some of this permanent. The law needs to be
20 changed to allow telephonic devices for
21 telehealth services, not just computers with
22 WiFi. This will help expand the service to
23 otherwise underserved communities, including
24 remote rural areas and in urban areas as
27
1 well. And we will work together with the
2 Department of Health on their proposals as
3 well.
4 We will continue to put the consumer
5 at the center of all we do. And all the work
6 that we do, including with respect to these
7 crises, is difficult, complex, new and
8 emerging. It requires us all to work
9 together, government with industry, the
10 agency with the Legislature, our federal
11 counterparts, other states, experts and, most
12 importantly, consumers.
13 I look forward to continuing that work
14 with you. I will be happy to take your
15 questions and to follow up as needed to
16 provide additional information.
17 Thank you.
18 CHAIRWOMAN KRUEGER: Thank you very
19 much.
20 And our first questioner will be the
21 chair of Insurance, Neil Breslin.
22 SENATOR BRESLIN: There, unmuted.
23 Thank you, Madam Chairman. And I'll be
24 rather brief.
28
1 Good to see you, Madam Superintendent.
2 DFS SUPERINTENDENT LACEWELL: Thank
3 you.
4 SENATOR BRESLIN: I just have -- I
5 think most of the people who will be asking
6 you questions have certain opinions on PBMs.
7 As the sponsor of the PBM bill in the Senate
8 that was vetoed by the Governor, I have a
9 difficult time explaining that when you have
10 just said that the pharmacy benefit managers
11 face difficult problems and conflicts of
12 interest. And I don't think that getting
13 their name and address is sufficient to
14 counteract that kind of behavior.
15 And I would like, first of all, if you
16 could discuss your feelings about the bill
17 that we have introduced now for several
18 years, which has been vetoed by the Governor,
19 in comparison to the bill that you have
20 presented.
21 DFS SUPERINTENDENT LACEWELL: Thank
22 you. Thank you, Chair. And it's a pleasure
23 to see you and it's a pleasure to develop a
24 working relationship with you and your staff.
29
1 What we agree on, of course, is the
2 policy and the need to address the cost
3 driver of pharmaceutical drugs, and to bring
4 about oversight and regulation of this
5 important actor who is currently unregulated,
6 the pharmacy benefit managers. So we agree
7 that we've got to deal with the conflict of
8 interest issues and bring about transparency,
9 which can be its own force multiplier for
10 good.
11 The registration, as I believe you
12 know, is an initial step, of course. For one
13 thing, we need to identify the full field of
14 the PBMs. Many of them are unknown. Nobody
15 seems to have a complete list. We know who
16 the big ones are, but not the rest. And then
17 over that period of time, over the next year,
18 DFS would work with industry and consumers
19 and the legislature and the Department of
20 Health and others to craft a set of best
21 practices, a code of conduct, rules of the
22 road that then would go into effect as each
23 of these were licensed.
24 Importantly, that would also enable us
30
1 to go in and look behind -- look under the
2 hood, so to speak, of these PBMs and see
3 what's happening to help inform our
4 oversight.
5 So you are absolutely correct that
6 merely registering and getting a name and
7 address and how do I find you is not remotely
8 enough. And we plan to have the most robust
9 and balanced and fair set of best practices
10 and rules of the road for the PBMs in the
11 country. And I look forward to incorporating
12 both the received wisdom and what we learn
13 along the way.
14 As far as the prior bills, I fully
15 understand and we have discussed that this is
16 a point of concern. And I understand that.
17 To my understanding, there were issues with
18 respect to preemption and legal standards
19 being applied, and the concern of counsel's
20 office was that collectively working together
21 we achieve a law that can survive legal
22 challenge and that actually goes into effect
23 and is not subject to some court challenge
24 that will knock it out of the box and then we
31
1 have to come back again.
2 I realize there's a difference of
3 opinion, to put it mildly, between some
4 members and chairs in the Legislature and the
5 counsel. But I am hopeful that the Executive
6 and the Legislature will reach agreement on
7 this important matter during the negotiations
8 so that we can do the work for the people
9 that we are all here to do and help deal with
10 the economic crisis, now more than ever, to
11 help try to bring down these prices and to
12 get this unregulated black-box sector under
13 regulation.
14 SENATOR BRESLIN: All right. Madam
15 Superintendent, I -- again, taking the time
16 to move on pharmacy benefit managers, given
17 the fact that there are three major players
18 in the pharmacy industry who have a
19 relationship with pharmacy benefit managers,
20 leaving independents out. And while we
21 dilly-dally on legislation, pharmacies that
22 are independent in nature, including the one
23 where I live, have closed their doors.
24 They've closed their doors because of the
32
1 practices of pharmacy benefit managers who
2 have a different allegiance.
3 And unless and until we direct our
4 attention to those allegiances and find out
5 where they're getting their money, how
6 they're using it and who they're responsible
7 to, this market will continue to be an
8 embarrassment in the State of New York.
9 I know that's more of a statement, but
10 it's also in the nature of a question.
11 DFS SUPERINTENDENT LACEWELL: Yes.
12 And I am familiar with this problem, thanks
13 in part to you and certain other members
14 highlighting that for us.
15 We recognize the importance of the
16 independent pharmacy industry. It's
17 important for the economy, it's important for
18 small business, it's important to protect
19 smaller businesses against these giants. And
20 that is an area of singular focus with
21 respect to what we intend to learn and how we
22 intend to protect an open and fair and robust
23 and competitive industry for all.
24 SENATOR BRESLIN: Well, I'll move on
33
1 because my time is relatively limited, and I
2 know there will be other questions in this
3 area by my successive questioners.
4 And we've read a lot about business
5 interruption during this past summer. Can
6 you -- does the department have a position on
7 what happened vis-a-vis business
8 interruption? And do you have an opinion
9 upon any pending legislation on it?
10 DFS SUPERINTENDENT LACEWELL: So thank
11 you. Business interruption I know is a very
12 large issue. We haven't taken a position per
13 se, including with respect to any pending
14 legislation.
15 I will say, as you're aware, with
16 respect to the circumstances, many people are
17 upset that businesses closed down and they
18 did not have resort to insurance when they --
19 many of them believed that they were covered
20 against eventualities outside of their
21 control.
22 The difficulty is that business
23 interruption is a matter of contract. And
24 the way these contracts have been written
34
1 historically is many of them -- and I'm not
2 going to opine on legal issues, but many of
3 them overtly or explicitly exclude pandemics
4 or require physical damage, which are matters
5 for court interpretation.
6 DFS unfortunately cannot unilaterally
7 override that agreed-upon and executed
8 contract language because of the need to
9 protect contracting -- existing contracts,
10 which is a constitutional provision, as all
11 are aware. So we can't go back and change
12 all of that.
13 Second, we've been in these kind of
14 situations before where there is a
15 widespread, diffuse, high-dollar impact on
16 industry. And typically what happens then --
17 it's not a single-state issue, and typically
18 the federal government would get involved and
19 say, We have this problem, our existing
20 system doesn't work, the insurance industry
21 doesn't know how to manage pandemic risk
22 through policies, even if you force them to
23 cover it. How do they determine the dollar
24 impact? How do they operate? What are the
35
1 premiums going to look like? Typically there
2 you would have some type of backstop or pool.
3 And that is where, from time to time,
4 the federal government has gotten involved
5 and tried to come up with a solution for
6 everyone. I think terrorism is an issue
7 where this has been addressed after 9/11, and
8 there are other matters of the kind. So I'm
9 not aware of any current efforts in that
10 regard. Obviously we have a new
11 administration in Washington.
12 I will say, when I say the consumer is
13 at the center of what we do, it's the
14 consumer, the family, the small business,
15 which is frequently a couple of people at a
16 time. And we want to protect small business.
17 And we're open to any dialogue, working
18 through any idea. We're agnostic as to the
19 source of the idea to address this for the
20 future because we can't guarantee, right,
21 that this never happens again.
22 SENATOR BRESLIN: What -- my time --
23 one last question on that. Has the
24 department put forth any of its
36
1 recommendations relative to a prospective
2 TRIA arrangement on business interruption to
3 the federal government?
4 DFS SUPERINTENDENT LACEWELL: I think
5 that we would be happy to engage with the
6 federal government once they're sort of
7 firmly in place; the transition really is
8 still happening. And obviously there are
9 many priorities in Washington. But we ought
10 to be engaged on this issue, to your point.
11 SENATOR BRESLIN: No further
12 questions. I defer to my dear friend and
13 chairman of the Insurance Committee in the
14 Assembly.
15 CHAIRWOMAN KRUEGER: Thank you.
16 Assembly.
17 CHAIRWOMAN WEINSTEIN: Yeah, I just --
18 before we go to our Insurance chair, I just
19 want to acknowledge we've been joined by
20 Assemblymember Norris, Assemblymember Steck,
21 and Assemblymember Hyndman.
22 And we go to Kevin Cahill, chair of
23 the Assembly's Insurance Committee, for
24 10 minutes.
37
1 CHAIRWOMAN KRUEGER: While Kevin gets
2 ready, I'm sorry, we've been joined by
3 Senator Martucci, Senator -- I've already
4 lost them. We've been joined by other
5 Senators. I'll remember their names in a
6 little bit (laughing).
7 ASSEMBLYMAN CAHILL: Well, thank you,
8 Chair. And thank you, Neil, for teeing off
9 and getting some good questions in already.
10 Superintendent, thank you for your
11 testimony. It's -- I'll be reading through
12 it again, and I hope to have some follow-up
13 testimony from you in writing to questions
14 you don't get to answering today. I know we
15 had a problem with that at our last hearing
16 with the Commissioner of Health. It took us
17 six or seven months to get some answers and a
18 subpoena from the Attorney General. I hope
19 we don't have that same experience with you.
20 I'd like to start by talking about
21 something that you did not mention in your
22 prepared remarks, and that is the fact that
23 the Department of Financial Services is going
24 into the family planning business. The
38
1 Governor has proposed to move family planning
2 from the Department of Health to the
3 Department of Financial Services. I assume
4 that is a fiscal matter, that the intention
5 here is to take it off of the General Fund
6 and make it a suballocation for fees that are
7 assessed against insurance companies.
8 Is that a fair assessment of what's
9 going on here?
10 DFS SUPERINTENDENT LACEWELL: I think
11 that's likely correct, although frankly I
12 would defer to the Department of Health in
13 this area.
14 And I'm also happy, as you indicated,
15 to follow up in writing.
16 ASSEMBLYMAN CAHILL: Thank you very
17 much.
18 So it's just a fiscal move, in other
19 words. You're not going to be taking over
20 the administration of family planning
21 services in New York State, is that correct?
22 DFS SUPERINTENDENT LACEWELL: That
23 seems highly unlikely.
24 ASSEMBLYMAN CAHILL: Okay. because it
39
1 appears that way in the budget right now.
2 When you move a responsibility to an agency,
3 usually that agency gets the regulatory
4 responsibility.
5 Just out of curiosity, do you have any
6 doctors or nurses on your staff at DFS?
7 DFS SUPERINTENDENT LACEWELL: We may.
8 But obviously DOH has far more in that
9 regard.
10 ASSEMBLYMAN CAHILL: All right, fine.
11 Thank you very much.
12 Do you happen to know how much we
13 suballocate from the fees that are assessed
14 against insurance companies in the entire
15 budget?
16 DFS SUPERINTENDENT LACEWELL: I had
17 that number at one time. It is certainly
18 true that the insurance industry supports
19 industry-related matters that are executed by
20 other agencies. And we can get you that
21 number.
22 ASSEMBLYMAN CAHILL: And it's your
23 estimation that family planning services is
24 part of health insurance or part of
40
1 insurance?
2 DFS SUPERINTENDENT LACEWELL: I would
3 tend to think so.
4 ASSEMBLYMAN CAHILL: Oh, okay. That's
5 interesting. I think most people would think
6 it was a medical issue largely covered,
7 interestingly enough, by Medicaid, not the
8 agencies regulated by you. But okay, that's
9 fine.
10 I'd like to shift to something where
11 it might make some sense for DFS to have a
12 suballocation or a fee, and that's early
13 childhood intervention services. Right now
14 insurers, health insurers pay about
15 $12 million or about 2 percent, the same
16 number they've been paying for 10 years after
17 Governor Cuomo entered into a sweetheart
18 contract with a fiscal agent who has now
19 received in excess of $50 million to increase
20 that number -- but in fact the number has
21 been stagnant or even dropped a little bit.
22 Do you think it's time to change the
23 way we require insurers to participate in the
24 Early Childhood Intervention Program?
41
1 DFS SUPERINTENDENT LACEWELL: I really
2 have no information about your reference to
3 some sweetheart contract and --
4 ASSEMBLYMAN CAHILL: Well, I'll be
5 happy to share the information with you about
6 that contract, Superintendent, because I do
7 believe that you have some supervisory role
8 with it. I know it's resident in the
9 Department of Health, but it is intended to
10 go against insurance companies that you
11 specifically regulate, and they've had no
12 success whatsoever.
13 They came to New York promising
14 incredible great success in doing so and then
15 have basically opined that because our
16 regulatory structure and our legal structure
17 didn't change to accommodate their needs,
18 they couldn't do what they promised to do
19 $60 million ago.
20 That being said, insurance companies
21 continue to provide about 2 percent of the
22 cost of Early Childhood Intervention, and
23 those costs are extracted from insurance
24 companies only after protracted battles to
42
1 secure that money through a series of denials
2 and resubmissions by the providers
3 themselves.
4 If the providers are unsuccessful in
5 getting the money from the insurers, then
6 guess who pays? New York State. So it looks
7 like we are asking people who are getting $25
8 a visit to do the collection work for
9 New York State.
10 Do you now believe it's appropriate to
11 change the way insurers participate in the
12 Early Childhood Intervention Program?
13 DFS SUPERINTENDENT LACEWELL: I'm more
14 than happy to confer with the Department of
15 Health and discuss this issue, and also with
16 industry, to talk through what is currently
17 happening, if anything, and how to move
18 forward in a way that is effective.
19 ASSEMBLYMAN CAHILL: Okay. So I was
20 very surprised that the Superintendent of
21 Insurance is hearing about this issue for the
22 first time today. It has been a proposal by
23 Assemblywoman Paulin for about a dozen years,
24 something that has been discussed at every
43
1 budget hearing since you've been
2 superintendent and before that time. But
3 we'll move on.
4 Just on the subject of pharmacy
5 benefit managers, you indicated a difference
6 of opinion before you and certain members of
7 the Legislature. Would you have to
8 acknowledge that given the Rutledge vs. PCMA
9 case that your difference of opinion is also
10 with the unanimous Supreme Court in a
11 decision written by New York resident
12 Sotomayor?
13 DFS SUPERINTENDENT LACEWELL: That
14 decision is actually not on point.
15 ASSEMBLYMAN CAHILL: Oh, I get it,
16 it's not on point. So what is on point is
17 some Arizona Supreme Court case that has no
18 relevance in New York that says maybe there's
19 an ERISA issue -- but the United States
20 Supreme Court case doesn't matter? Thank
21 you, Superintendent. It's interesting to see
22 your assessment of the law. Let's move on to
23 excess medical malpractice.
24 Excess medical malpractice. The
44
1 Governor has proposed slashing in half,
2 ultimately, the government participation in
3 the Excess Medical Malpractice Program. This
4 is a program that provides insurance
5 benefits for doctors who are serving
6 underserved areas, at-risk areas.
7 And is there anything, in your
8 estimation, that has changed the fiscal
9 situation or the financial situation of
10 doctors that would now allow them to be in a
11 better position to pay for their malpractice
12 insurance than they were before COVID-19?
13 DFS SUPERINTENDENT LACEWELL: Well,
14 the medical malpractice sector, which was in
15 considerable distress, has improved markedly,
16 thanks in part to the work that we've done
17 together with industry, and of course --
18 ASSEMBLYMAN CAHILL: If I may
19 interrupt you on that point. It's all well
20 and good that there are doctors who are
21 securing medical malpractice. But when you
22 ask the remaining doctors to participate at
23 50 percent, you're not talking to the doctors
24 who are no longer in the pool. We are
45
1 talking about doctors that are in the pool.
2 And if there's enough doctors that have left
3 the pool, isn't that enough of a place to
4 find savings rather than having to penalize
5 those doctors who are serving the most
6 communities in need in New York State?
7 DFS SUPERINTENDENT LACEWELL: I'm
8 sorry, I'm just not following your question.
9 ASSEMBLYMAN CAHILL: Oh, okay. You
10 indicated that the reason we could do this is
11 that many people have migrated out of the
12 excess medical malpractice pool, correct?
13 DFS SUPERINTENDENT LACEWELL: That's
14 actually not what I said.
15 ASSEMBLYMAN CAHILL: Go ahead, then,
16 please.
17 DFS SUPERINTENDENT LACEWELL: I was
18 simply trying to say that the state in part
19 has been subsidizing because the industry was
20 in distress.
21 ASSEMBLYMAN CAHILL: And the
22 industry --
23 DFS SUPERINTENDENT LACEWELL: The
24 industry has recovered, there are additional
46
1 entrants, the surplus deficits have gone down
2 dramatically. The layer that the state
3 provides is in addition to ordinary
4 malpractice insurance. Doctors can elect
5 whether or not to participate in that, and
6 there are all kinds of doctors who may have
7 decided the level of coverage they have
8 without that is sufficient and therefore they
9 don't need to participate.
10 The question is whether the state
11 needs to be the hundred percent backstop
12 anymore. And the assessment based on the
13 numbers was that the support could be
14 reduced.
15 ASSEMBLYMAN CAHILL: Superintendent,
16 just again for your information -- because I
17 see a great disconnect between your testimony
18 and reality, so let's just have another
19 conversation about this later on.
20 But the people who participate in the
21 excess medical malpractice pool are the
22 people who would be paying that 50 percent,
23 not the people who have left the pool. There
24 is no new resources for people serving
47
1 underserved communities. If anything, those
2 resources have dried up.
3 But let's move on to one more item. I
4 was under the impression that the Governor
5 was going to remove his no-fault language in
6 his 30-day bill. Do you know if that
7 happened?
8 DFS SUPERINTENDENT LACEWELL: I don't
9 believe so. I think it's still in there.
10 ASSEMBLYMAN CAHILL: Okay, that's
11 terrific. Let's talk about it.
12 There's two parts to it. Part 1 is
13 where the Department of Financial Services
14 would exercise regulatory authority over
15 providers by extracting from them commitments
16 not to participate in the no-fault program.
17 Do you or anyone in your agency feel
18 qualified to determine who should and should
19 not practice medicine in any area?
20 DFS SUPERINTENDENT LACEWELL: No. To
21 my understanding, what the provision would do
22 is if the Workers' Comp Board made a
23 determination that a particular provider had
24 engaged in fraud or criminality or other
48
1 misconduct in connection with workers' comp,
2 that DFS would be empowered to take that
3 finding and, through a notice of hearing and
4 opportunity to be heard, remove for a period
5 of time those bad actors who are abusing the
6 Workers' Comp Program --
7 ASSEMBLYMAN CAHILL: The second half
8 of the Governor's proposal creates the
9 ultimate kicking-the-can-down-the-road, a
10 study panel, to look at no-fault insurance --
11 no-fault insurance that has utterly failed
12 New Yorkers with high premiums, low coverage,
13 complicated diagnostics that don't even
14 recognize anything that's been added to the
15 medical community since the early 1970s, and
16 a no-fault bar that is huge.
17 I see I'm running out of time; I want
18 to give you a chance to answer: Would you
19 consider ending no-fault in New York State?
20 DFS SUPERINTENDENT LACEWELL: I don't
21 believe in replacing something with nothing.
22 ASSEMBLYMAN CAHILL: Thank you,
23 Superintendent. I'll come back to you later
24 when I can get a second chance. Thanks so
49
1 much.
2 DFS SUPERINTENDENT LACEWELL: Thank
3 you.
4 CHAIRWOMAN KRUEGER: Thank you.
5 Next is Senator Helming, the ranker on
6 Insurance.
7 SENATOR HELMING: Thank you,
8 Senator Krueger.
9 Thank you, Superintendent, for your
10 testimony. As the new ranker on the Senate
11 Insurance Committee, I look forward to
12 working with you and Senator Breslin to
13 address the many, many issues that are
14 impacting consumers and the insurance
15 industry all across our state.
16 I wanted to shift the discussion for a
17 moment and talk about it's my understanding
18 in the TED budget bill that the Governor has
19 proposed a motor vehicle insurance task
20 force, of which you will be the chair, and
21 all eight committee members will be appointed
22 by the Governor.
23 Superintendent, are you open to adding
24 appointees appointed by the majority and
50
1 minority conferences of both houses?
2 DFS SUPERINTENDENT LACEWELL: Well,
3 certainly our approach at DFS is to consult
4 across the board to all those with an
5 interest, stakeholders and those connected to
6 communities, including the Legislature.
7 And so if through the negotiations it
8 should ensue that the parties agree to that,
9 then we would be pleased to proceed in that
10 regard.
11 If for some reason that doesn't
12 happen, I am happy to work with you and other
13 interested members on this and all other
14 issues.
15 SENATOR HELMING: To me there's a
16 dramatic difference between like reaching out
17 and consulting with someone, versus them
18 having an official position on a committee
19 that's established.
20 It's so important -- and we're seeing
21 this of late, especially -- that we have
22 coequal branches of government and coequal
23 representation, especially on these task
24 force committees, et cetera, that are going
51
1 to be making important recommendations off
2 which decisions are made, right, whether it's
3 financial, whether it's policy, whatever it
4 is. So I hope you would help us press for
5 representation on this task force by the
6 majority and minority conferences.
7 Also on this task force, do you know
8 how many appointments would be from the
9 insurance industry?
10 DFS SUPERINTENDENT LACEWELL: I do
11 not.
12 SENATOR HELMING: I think it's
13 critical that we have representation from the
14 insurance industry on this task force as
15 well.
16 Turning to another subject, I'm
17 curious how you see the legalization of
18 marijuana impacting the insurance industry,
19 specifically auto insurance. Do you believe
20 we'll see a rate increase? Or what are your
21 thoughts?
22 DFS SUPERINTENDENT LACEWELL: Well,
23 it's a very interesting question. We have
24 been looking across the board since last
52
1 year, actually -- you know, ever since the
2 bill has been proposed through the budget
3 process -- both on the banking side and the
4 insurance side: How can we help industry
5 feel comfortable with offering insurance
6 around the issue of cannabis, whether it's
7 property, casualty or whatever else it may
8 be.
9 Certainly we need to look at the
10 experience of other states, who we're
11 starting to confer with. I mean, I think
12 driving a car, whether it's alcohol or drugs,
13 including cannabis, is problematic. And I
14 would imagine that the auto insurance
15 industry is very focused on that. And one is
16 not permitted to be under the influence, even
17 though alcohol is legal, and the same ought
18 to pertain, presumably, for cannabis.
19 So it's something that we've got to
20 look at closely, and thank you for raising
21 that. And going into any new ventures,
22 right, there are many unknowns, so we have to
23 learn from those who have been there before
24 us and we've got to talk with industry and
53
1 experts and you and see what we can do to
2 cabin the risks around all of this.
3 SENATOR HELMING: So any thoughts on
4 how we ensure that employers are protected
5 from liability of employees that may show up
6 to work under the influence of marijuana?
7 DFS SUPERINTENDENT LACEWELL: I would
8 think, again, that would be the same as being
9 under the influence of alcohol. And the case
10 law that gets developed on the
11 employer/employee relationship and agency and
12 was in this course of employment and was it
13 employer vehicles and is testing permitted --
14 a whole complex area of law that should
15 certainly be looked at and understood as we
16 proceed.
17 SENATOR HELMING: Is DFS certainly
18 engaged in discussions and discovery?
19 DFS SUPERINTENDENT LACEWELL: We're
20 having conversations with industry in small
21 groups. Our insurance division is doing
22 that, and our banking division on the banking
23 side.
24 Because assuming that this becomes
54
1 law, we want to help to cabin the risks
2 around all of this, including by having some
3 mechanism for banks to be able to handle the
4 money in a way that they can do it
5 responsibly and ensuring -- obviously,
6 insurance is about protecting people and
7 businesses against risk, so how can we
8 facilitate that as well.
9 We've done this previously on hemp and
10 other matters, and we would continue that
11 work as well.
12 SENATOR HELMING: Thank you.
13 CHAIRWOMAN KRUEGER: Thank you.
14 Assembly.
15 CHAIRWOMAN WEINSTEIN: Assemblyman
16 Gottfried.
17 ASSEMBLYMAN GOTTFRIED: Hi. So --
18 CHAIRWOMAN WEINSTEIN: Yeah, okay.
19 Just wanted to get the clock right for you,
20 Dick. Okay.
21 ASSEMBLYMAN GOTTFRIED: Okay.
22 Superintendent, the Affordable Care
23 Act says that the Essential Plan Trust Fund
24 may, quote, only be used to reduce the
55
1 premiums and cost-sharing of or provide
2 additional benefits for eligible individuals,
3 unquote.
4 The budget would take 420 million from
5 the Essential Plan Trust Fund and use it for,
6 quote, rate enhancements under the Essential
7 Plan.
8 My question is, how is that an
9 allowable use under federal law?
10 DFS SUPERINTENDENT LACEWELL: I really
11 would defer to the Department of Health in
12 this area. I'm also happy to follow up to
13 you in writing or with your staff with
14 respect to that matter.
15 ASSEMBLYMAN GOTTFRIED: Okay. That's
16 something you're not familiar with?
17 DFS SUPERINTENDENT LACEWELL: I'm
18 really not permittable -- I'm really not
19 versed in the question that you raise, that's
20 right.
21 ASSEMBLYMAN GOTTFRIED: Okay. That's
22 not encouraging.
23 DFS SUPERINTENDENT LACEWELL: I do the
24 best I can, sir.
56
1 ASSEMBLYMAN GOTTFRIED: Okay.
2 On the question of PBMs, some of the
3 things that the Governor objected to in the
4 bill are the language imposing on PBMs a duty
5 to act in the best interests of their
6 insurance company clients and patients -- a
7 duty that we impose on lawyers, real estate
8 brokers, et cetera. The Governor objected to
9 that.
10 And the Governor objected to the fact
11 that these prohibitions on stealing from your
12 client, et cetera, would apply to
13 self-insured plans.
14 Now, under New York law if a
15 self-insured plan is trying to sell
16 real estate in their portfolio, the real
17 estate broker who handles that for them is
18 required by state law to act in their best
19 interests. Nobody thinks that violates
20 ERISA. The lawyer that represents them in
21 that transaction is not allowed to defraud
22 them. Lawyers are not allowed to defraud a
23 union welfare fund that they happen to
24 represent; nobody argues that that violates
57
1 ERISA.
2 The Penal Law, the section that says
3 that if you're filing a claim you can't steal
4 from an insurance company -- a good law --
5 explicitly mentions self-insured plans among
6 the people New York does not let you steal
7 from. I haven't heard anyone say that it
8 violates ERISA to say that we can't -- you
9 know, to say that we -- you know, because we
10 try to stop people from stealing from
11 self-insured plans.
12 So why can't we tell PBMs not to steal
13 from self-insured plans? And by the way, if
14 there is a real issue about that, the bill
15 has a severability clause that would just
16 carve that right out.
17 So I don't understand that theory.
18 And it seems to me the Rutledge decision
19 makes that even clearer. And I guess on the
20 matter of the Rutledge decision, I don't know
21 anyone outside the Cuomo administration who
22 shares your interpretation of that decision.
23 Well, I guess there are probably people who
24 work for self-insured funds who don't agree
58
1 with me.
2 But does the administration have a
3 legal analysis of why Rutledge does not apply
4 here, and could that be shared with us?
5 DFS SUPERINTENDENT LACEWELL: Well,
6 all right, let me begin where you started,
7 Mr. Chair.
8 Fiduciary duty, as you are aware, is a
9 very old concept. And you're correct, it
10 applies to lawyers and fiduciaries or agents.
11 But a fiduciary duty means an obligation to
12 act solely and exclusively in the best
13 interest of the other party.
14 Once you say you have a fiduciary duty
15 to multiple actors of different sorts, you're
16 now raising the specter of a conflict of
17 interest between those two. So how do you
18 select?
19 ASSEMBLYMAN GOTTFRIED: Well, the bill
20 -- the bill answers -- excuse me, the bill
21 answers that question in black and white.
22 The bill says if the duty to the patient
23 conflicts with the duty to the insurance --
24 to the client, the duty to the patient has
59
1 priority. Problem solved.
2 DFS SUPERINTENDENT LACEWELL: I think
3 one of the fundamental differences that we
4 have in this regard is that I believe that if
5 you provide oversight to an experienced
6 regulator, which DFS is, then you can,
7 through regulation, get at all of the ills
8 that are of concern -- and, by the way,
9 obviously with examination, investigation and
10 enforcement powers -- rather than try to
11 shoehorn it into the bill in the first
12 instance if it may invite legal attack.
13 And I realize, as I said at the
14 beginning when I was speaking with
15 Chair Cahill -- or actually, no, it was with
16 Senator Breslin -- that there are differences
17 of opinion. The Rutledge decision is not
18 directly on point. It's in the area, and it
19 provides some help but it's not -- it doesn't
20 say yes, you can do this.
21 The problem is, as you know far better
22 than I, the law of ERISA and of preemption is
23 highly specialized and complex, and it's not
24 always totally clear. So why invite the
60
1 legal attack when what you are trying to --
2 ASSEMBLYMAN GOTTFRIED: The answer to
3 that is the Rutledge decision is actually
4 quite clear as to what it says. And while
5 the Arkansas statute is not word for word,
6 the New York statute -- the holdings, the
7 principles in Rutledge, which is what we look
8 at, apply equally, number one.
9 Number two, I don't know any lawyer
10 who doesn't work for the Cuomo administration
11 or the PBM industry who agrees with you.
12 And number three, a severability
13 clause, which is in the bill, solves the
14 problem. If some court someday says, Tsk,
15 tsk, tsk, New York, you tried to stop people
16 from stealing from self-insured plans, not
17 allowed -- well, good, then the law won't
18 apply to stealing from self-insured plans.
19 Problem solved.
20 DFS SUPERINTENDENT LACEWELL: Rutledge
21 said just because there was an impact on
22 actors in the federal area did not invalidate
23 the bill.
24 ASSEMBLYMAN GOTTFRIED: Right.
61
1 DFS SUPERINTENDENT LACEWELL:
2 Obviously if somebody who works for a
3 self-insured plan commits homicide, they can
4 still be prosecuted. That's not really the
5 point.
6 The point of the bill is to register
7 and license and oversee the players in this
8 industry. That can be done through the
9 regulations, the examination, the
10 investigation, the oversight.
11 I would like to --
12 ASSEMBLYMAN GOTTFRIED: Excuse me. So
13 you think you can stop PBMs from stealing
14 from their clients but the -- but the law
15 can't?
16 DFS SUPERINTENDENT LACEWELL: What I'm
17 saying is --
18 ASSEMBLYMAN GOTTFRIED: How is it
19 different? How is it different if a
20 regulation says "don't steal" or if a statute
21 says "don't steal and, DFS, go make regs"?
22 DFS SUPERINTENDENT LACEWELL: What I'm
23 saying is the statute, by virtue of having
24 certain wording in it, could bring it under
62
1 legal attack and therefore we achieve
2 nothing. Whereas through regulations that
3 are carefully written and crafted with the
4 benefit of input from all can help reduce the
5 ills and the harms that we are all concerned
6 about, and let's get something done.
7 ASSEMBLYMAN GOTTFRIED: So you're
8 saying my bill language, passed unanimously
9 by both houses and that's been around for
10 several years and been looked at by a lot of
11 people, is not, quote, carefully written
12 because it says you have to act in somebody's
13 best interests? Even though it gives you
14 rule-making authority.
15 And you haven't addressed the question
16 of the severability clause. That solves your
17 problem. But you haven't talked about that.
18 And let me remind you, I've asked for
19 a copy of whatever legal analysis you have.
20 Will you send that to me?
21 DFS SUPERINTENDENT LACEWELL: Well,
22 that obviously would be attorney-client
23 privilege, so I don't know that we can
24 waive --
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1 ASSEMBLYMAN GOTTFRIED: It's only
2 attorney-client privilege if you assert it.
3 DFS SUPERINTENDENT LACEWELL: That's
4 right. That's right.
5 ASSEMBLYMAN GOTTFRIED: If you choose
6 to share it, then you can share it.
7 DFS SUPERINTENDENT LACEWELL: Yeah,
8 we're not --
9 ASSEMBLYMAN GOTTFRIED: It's a legal
10 analysis. You're sharing your legal analysis
11 with me right now.
12 DFS SUPERINTENDENT LACEWELL: No, I'm
13 not.
14 ASSEMBLYMAN GOTTFRIED: Except you're
15 doing it in very general terms.
16 DFS SUPERINTENDENT LACEWELL: No, I'm
17 not. I'm not. And we're not in the business
18 of waiving attorney-client privilege. It's
19 not smart for us to do.
20 ASSEMBLYMAN GOTTFRIED: You're not in
21 the business of explaining to the Legislature
22 why you think something is illegal?
23 DFS SUPERINTENDENT LACEWELL: I think
24 --
64
1 ASSEMBLYMAN GOTTFRIED: Shame -- how
2 can you say that?
3 DFS SUPERINTENDENT LACEWELL: We are
4 explaining it. You don't have to waive
5 privilege to do that.
6 I'd be happy to talk about you
7 further, Mr. Chair, and to engage on this
8 issue and to confer with counsel's office to
9 do the same.
10 ASSEMBLYMAN GOTTFRIED: Yeah, but
11 you're -- but that conversation is not going
12 to give me a detailed analysis.
13 DFS SUPERINTENDENT LACEWELL: I'm just
14 trying to be respectful of the time which --
15 ASSEMBLYMAN GOTTFRIED: Because if you
16 can give me a detailed analysis orally,
17 that's no more or less a waiver of your
18 privilege on that material as if you give it
19 to me in writing. You know that.
20 DFS SUPERINTENDENT LACEWELL:
21 Respectfully, I disagree. I'm an attorney
22 and I teach legal ethics at NYU Law School,
23 which I have done for years, including on the
24 issue of privilege and its waiver. So we
65
1 disagree. But I am happy to engage further
2 --
3 ASSEMBLYMAN GOTTFRIED: And you -- you
4 think --
5 DFS SUPERINTENDENT LACEWELL: And time
6 expired about a minute ago.
7 ASSEMBLYMAN GOTTFRIED: (Laughing.)
8 CHAIRWOMAN WEINSTEIN: Assemblyman
9 Gottfried will have five minutes for seconds
10 later, so you'll have an opportunity to be
11 able to respond to his question, or engage
12 further on this issue.
13 We'll go to the Senate now.
14 SENATOR RIVERA: And Liz is muted, but
15 I believe it is me, is that --
16 CHAIRWOMAN KRUEGER: I apologize, I'm
17 so sorry, I couldn't get off mute.
18 And it is Senator Rivera's turn.
19 Thank you.
20 SENATOR RIVERA: The one-two punch
21 continues.
22 Good morning, Superintendent.
23 Actually, let's pick up right where my
24 colleague in the Assembly left off. Now, I
66
1 am not an attorney nor do I play one on TV,
2 unlike both of you. But I will say that as
3 the Assemblymember said, you're asserting
4 your right to not waive privilege, but what
5 you're doing there -- now you're doing that,
6 you're choosing to do that, and then you can
7 obviously go down the road and talk about
8 ethics and everything. But you're choosing
9 not to tell us, not to explain to us how it
10 is that our bill -- which again, as the
11 Assemblymember mentioned, passed unanimously
12 -- actually fails to do the thing -- you just
13 say, Well, it's not written correctly, it
14 should have something -- it should have
15 something written differently.
16 Maybe you can explain to us what that
17 is more specifically, and maybe we would
18 change the bill. But we're not going to go
19 down that road.
20 Just for the record, I absolutely -- I
21 not only voted for that bill, support that
22 bill and believe that we should do it
23 legislatively, not through regulations --
24 because you could probably put those
67
1 regulations in effect -- if you could put the
2 regulations in effect, you would have done it
3 already. You're trying to put it into the
4 budget so that it can become legislation.
5 How about we just pass the bill that we all,
6 as a legislature, agree on?
7 Also, earlier, was it a slip of the
8 tongue when you said that you were not
9 permitted to share some of this thing, as
10 opposed to not versed in it? I guess that
11 was a slip of the tongue?
12 DFS SUPERINTENDENT LACEWELL: On which
13 issue was that? I didn't say "permitted," I
14 don't think.
15 (Overtalk.)
16 SENATOR RIVERA: It was a Freudian
17 slip, of course. That's fine.
18 Okay. So as far as the -- when you're
19 talking about the trust fund in particular,
20 so the -- and on that issue, on the trust
21 fund, when you were asked specifically about
22 it and you said you were not permitted and
23 then you corrected yourself, you're not
24 versed in that, and you said ask the
68
1 Department of Health. Is that what you said?
2 Related to the issue of whether it was
3 permitted to use the trust fund for the
4 purposes that -- one of the purposes that is
5 in the budget proposal?
6 DFS SUPERINTENDENT LACEWELL: I think
7 I -- yes, I was saying that I would refer
8 that respectfully to the Department of
9 Health. I'm also happy to come back with a
10 written answer or to speak with your staff.
11 SENATOR RIVERA: Gotcha. Gotcha. All
12 right. And then I got two more things.
13 One of them, first, I think we can all
14 agree that this -- this pandemic has made
15 things strange for everybody. But one of the
16 things is that there have been massive
17 profits for insurance companies. It has --
18 the pandemic has decreased healthcare
19 utilization and there's been a huge uptick in
20 telehealth.
21 So I want to specifically ask, there
22 is -- like during the pandemic you have
23 directed the insurance companies to charge no
24 copays for telehealth. Why hasn't the
69
1 administration proposed to continue this
2 requirement in its telehealth agenda? A lot
3 of which I agree with, by the way, that's in
4 the -- that is in the proposal. But -- or at
5 least require the carriers to charge lower
6 copays for telehealth when -- utilization by
7 members?
8 DFS SUPERINTENDENT LACEWELL: Okay.
9 So on your first point about the profits. As
10 you know, DFS has oversight of premium
11 increases for health insurers. That's a very
12 careful process that looks at the experience
13 of the prior year. And we do that with great
14 detail and attention to what the experience
15 actually was.
16 Second, and perhaps more importantly,
17 once a year HHS looks to determine whether
18 the medical loss ratio of at least 80 percent
19 has occurred or, instead, are there outside
20 profits, in which case HHS will direct the
21 insurers to return that -- those excess
22 premiums.
23 So one of the difficulties is the
24 unknown, so that's why this is looked at
70
1 periodically. We can see -- well, once the
2 economy starts to reopen, within the same
3 time frame is there a rush to obtain these
4 services, which generates costs, which
5 balances in any way or reduces what the
6 profits may be. I should state generally --
7 SENATOR RIVERA: Okay, okay, let's not
8 keep going down the road of profits; you can
9 explain that to me for hours. Let's talk
10 about the telehealth part, because I only
11 have five and a half minutes left.
12 So tell me about that. Tell me about
13 -- I'm just wondering, since you are
14 proposing a whole agenda around telehealth --
15 which, again, much of which I think is good
16 and I would agree with -- why hasn't the
17 Cuomo administration proposed to continue
18 that requirement that relates to no copays
19 for telehealth? Or at least require carriers
20 to charge lower copays for telehealth when
21 utilized by members?
22 DFS SUPERINTENDENT LACEWELL: So the
23 requirement of waiving the copays was and is
24 meant to address the circumstances of the
71
1 pandemic. And what has not yet been done is
2 an assessment of the sort of cost, quality,
3 premium impact, et cetera, of all of these
4 items. And we will be looking closely at
5 that.
6 For telehealth, as you know, our
7 proposal is that we need to change the law to
8 include telephonic services, which is not
9 currently permitted in the statute.
10 SENATOR RIVERA: Right.
11 DFS SUPERINTENDENT LACEWELL: And we
12 will also be requiring insurers to make sure
13 that they have a robust network that includes
14 telehealth services. Otherwise, the right is
15 sort of illusory, because you've got to make
16 sure there's something there to actually take
17 advantage of.
18 As far as reimbursement rates and the
19 like for telehealth, as I indicated, we need
20 to examine the data flowing through the
21 current period and then also look at what the
22 incentives are and what the cost/quality
23 issues are for the particular services to
24 sort of see how we might adjust in that
72
1 regard. And I'm happy to work with you and
2 your staff on that matter.
3 SENATOR RIVERA: All right, I got one
4 last one. This one relates to external
5 appeals. So in particular, what seems to be
6 a very big parity problem between medical and
7 surgical cases and mental health cases.
8 According to some of the stuff that --
9 some information that is on your website,
10 that's the Financial Services External
11 Appeals website, it says that denials are
12 upheld about 64 percent of the time in
13 medical-surgical cases, and they are --
14 however, they're denied -- in the mental
15 health and substance use treatment, denials
16 are -- the carriers lose nearly 70 percent of
17 the time. So it's completely flipped around.
18 So it seems that there's a vast
19 practice of restricting access to mental
20 health and substance use services by the
21 insurance industry.
22 So particularly considering the moment
23 that we're in, where there are many deaths of
24 despair, when we are seeing lack of resources
73
1 to places that provide substance abuse
2 services, et cetera, what is the department
3 doing to actually regulate the carriers in
4 this area as it relates to mental health and
5 substance use disorder treatment?
6 DFS SUPERINTENDENT LACEWELL: So
7 excellent question. Obviously this is a big
8 priority for DFS as well as the Legislature
9 and for consumers.
10 The Mental Health and Substance Abuse
11 Disorder Parity Law was very important, and
12 we have issued our regulations and we have
13 told the industry our expectations,
14 particularly with respect to the robustness
15 of the network.
16 One of the reasons for the appeals is
17 if there's nobody in the network to provide
18 the service, then you end up going out of
19 network. And that can generate a denial and
20 an appeal. If we expand the networks and
21 make sure we have qualified available
22 providers to give these services, then
23 hopefully that will reduce the appeals.
24 But to your point, we ought to take a
74
1 look at the external appeals and see what the
2 various reasons are and draw from that data
3 what other improvements we can make, not
4 just, you know, informing the industry or
5 doing enforcement with the industry, but how
6 do we get more granular as to what the
7 expectations are.
8 But it's an area of immense focus for
9 us right now, and --
10 SENATOR RIVERA: I'd like to follow
11 up -- yeah, I'd like to follow up with your
12 office on this.
13 DFS SUPERINTENDENT LACEWELL: Yes.
14 SENATOR RIVERA: We -- this -- there's
15 going to be a long tail to this pandemic, and
16 particularly as it relates to either mental
17 health services or substance abuse, there
18 will be many issues to deal with. And the
19 fact that this is kind of baked in,
20 apparently that there's just -- there's just
21 -- the rate of denials is so flipped
22 sincerely concerns me. So I'd want to be
23 able to dig deeper into it.
24 And maybe some of my colleagues will
75
1 follow up with you about it while you're here
2 today, but we certainly will follow up with
3 you offline.
4 DFS SUPERINTENDENT LACEWELL:
5 (Inaudible.)
6 SENATOR RIVERA: Thank you, Madam
7 Superintendent.
8 I am good for the moment,
9 Madam Chairwoman. Thank you.
10 CHAIRWOMAN WEINSTEIN: So we will go,
11 then, to Assemblyman Ra, the ranker on Ways
12 and Means for five minutes.
13 CHAIRWOMAN KRUEGER: Thank you,
14 Helene.
15 ASSEMBLYMAN RA: Thank you, Chair.
16 Hopefully I don't have any issues. I know a
17 lot of my colleagues and myself keep getting
18 knocked off the internet feed here.
19 But good morning, Superintendent.
20 I just wanted to go back to something
21 that you discussed a little bit with our
22 chair of Insurance related to the Excess
23 Medical Malpractice Program. And really just
24 the concern that how are we making sure that
76
1 that, you know, money isn't just shifting
2 onto the physicians who are paying for the
3 costs? Are there any other proposals that
4 would reduce the actual cost of medical
5 malpractice insurance? And if there are,
6 could you highlight them and answer the
7 concerns that by pushing this cost onto the
8 employees that we'd be reducing
9 participation?
10 DFS SUPERINTENDENT LACEWELL: So thank
11 you for that question.
12 One of the things that we've been very
13 focused on is increasing the competitiveness
14 of the industry so that there can be more
15 competitive rates. And the difficulty
16 previously was at least one of the major
17 carriers, now in liquidation, had been
18 undercutting the other providers in a
19 distorted market.
20 But now that we are helping each of
21 the carriers who have been distressed to
22 improve their finances, the market has
23 stabilized somewhat. And as I mentioned,
24 we've helped admit a number of new players in
77
1 the industry, and that should help.
2 But as you know, medical malpractice
3 is a big problem across the country in terms
4 of its cost. And given our trial system, the
5 costs are very high. And this is doubtless
6 sort of a piece of the puzzle that smarter
7 and more comprehensive policy experts than
8 myself may have insight into.
9 But with respect to our piece, our
10 property division is very invested in this
11 and spends a great deal of time on it. And
12 I'm happy, again, to talk with you, your
13 staff, any other member who would like to
14 explore additional ideas, provider
15 associations who have ideas. Because it is
16 part of our job to ensure that we do what we
17 can to improve competitiveness for all
18 players in our health system.
19 ASSEMBLYMAN RA: And thank you for
20 that. You know, as you mentioned, it is a
21 concern nationwide. It certainly has been a
22 particular concern in New York State. And
23 it's an important issue for -- you know, when
24 we talk about things like access to doctors
78
1 and everything, having, you know, this not be
2 kind of a cost-prohibitive state for people
3 to practice in is obviously an important
4 issue.
5 So I just would again, you know, state
6 my concern about potentially shifting this
7 cost onto those physicians that are paying
8 for their insurance.
9 Just one other issue. You did mention
10 telehealth earlier. And I'm glad you talked
11 about the, you know, audio-only services,
12 because I think it is important that -- you
13 know, we're seeing this in so many ways right
14 now. I'm certainly hearing from
15 constituents, you know, when they're trying
16 to register for vaccines and everything, that
17 they're not always all that computer savvy.
18 So having access to things that they can just
19 use a telephone, for many individuals, both
20 in terms of people's familiarity with using
21 these, you know, web-based platforms and also
22 just, you know, the access to broadband and
23 things like that, make it an equity issue to
24 make sure that we're providing, you know,
79
1 support, when or if, for audio-only services
2 as well.
3 DFS SUPERINTENDENT LACEWELL:
4 Absolutely.
5 ASSEMBLYMAN RA: Thank you.
6 DFS SUPERINTENDENT LACEWELL: Thank
7 you, sir.
8 CHAIRWOMAN KRUEGER: Thank you.
9 Back to Senate, I believe, correct?
10 Senator Borrello for three minutes.
11 SENATOR BORRELLO: Thank you,
12 Madam Chair. Appreciate it.
13 Good morning, Superintendent. Can you
14 all hear me?
15 DFS SUPERINTENDENT LACEWELL: Yes.
16 SENATOR BORRELLO: Okay, thank you.
17 I want to speak to you a little bit
18 about the -- I think the rather disturbing
19 trend of New York State contracts being
20 awarded to out-of-state vendors, and
21 specifically as it deals with healthcare.
22 Right now I'm, you know, fighting a
23 battle with OPWDD on contracts for
24 pharmaceuticals. You know, Senator Breslin
80
1 brought up the -- how our local pharmacies
2 have been under pressure, and this is doing
3 the same thing.
4 The state recently awarded a contract
5 through OPWDD for pharmaceuticals to -- that
6 are serving, you know, homes that deal with
7 people with disabilities, and to a company,
8 Omnicare, out of Ohio -- and can't even show
9 that this is actually a savings, in fact.
10 And we have a history, unfortunately, in New
11 York State of trying to save money and
12 spending more money. And in fact it's
13 harming local pharmacies.
14 Previously other companies would
15 subcontract with local pharmacies, and
16 currently through companies like
17 HealthDirect. And now Omnicare, based out of
18 Ohio, has cut that off entirely and will not
19 be using any locally owned pharmacies. We
20 have one here in my district that's an MWBE
21 that has been serving the community for
22 years, serving the homes through the OPWDD
23 contract; it is now basically being cut off.
24 And my question to you is, you know,
81
1 why are we allowing this? Why are we -- why
2 is there not an investigation as to why
3 out-of-state companies that are not even the
4 low bidder are receiving contracts that are
5 ultimately taking business away from MWBE
6 small businesses and pharmacies? It's a very
7 big concern, not just for me but for people
8 across largely upstate, but it's -- I'm sure
9 it's throughout the entire state that this is
10 occurring.
11 DFS SUPERINTENDENT LACEWELL: So
12 obviously MWBE contracting is a major
13 priority of the Governor, and he's made
14 tremendous progress in that regard.
15 And small business is the backbone of
16 our economy and very important in our upstate
17 communities. And I agree, where possible,
18 and consistent with the rules and the law and
19 all the other restrictions, we ought to try
20 to use the businesses in the state to do the
21 work of the government for the people.
22 SENATOR BORRELLO: I agree.
23 DFS SUPERINTENDENT LACEWELL: Beyond
24 that, I'm not familiar with the circumstances
82
1 at OPWDD, but I'm more than happy to
2 facilitate somebody becoming familiar with
3 the facts and getting back to you.
4 SENATOR BORRELLO: I would appreciate
5 that very much. I'm not getting answers.
6 There's a lot of hidden costs because of
7 using an out-of-state company. Instead of
8 using local delivery, for example, you're
9 going to have to use, you know, FedEx, things
10 like that.
11 There's a -- and this is affecting a
12 lot of people, but this is an MWBE and other
13 MWBEs, small businesses that are being
14 impacted by the fact that we are awarding
15 contracts to people out of state.
16 I realize it's cheaper to do business
17 out of state, but the state government should
18 not be exploiting that fact. So I would
19 appreciate if you could make a connection so
20 we can get to the answer and get to the
21 bottom of this.
22 Thank you.
23 DFS SUPERINTENDENT LACEWELL: Okay.
24 Happy to do so.
83
1 SENATOR BORRELLO: Thank you.
2 CHAIRWOMAN KRUEGER: Okay. Thank you.
3 Assembly?
4 CHAIRWOMAN WEINSTEIN: Yes, we go to
5 Assemblyman Byrne, the ranker on the
6 Health Committee in the Assembly, five
7 minutes.
8 ASSEMBLYMAN BYRNE: Thank you, Chair.
9 And Superintendent, I apologize if I'm
10 a little redundant in my questions because,
11 like my colleagues, I've been knocked off at
12 least five times already from the Zoom and
13 relogging in.
14 For starters, I want to just talk a
15 little bit about telehealth. And I have been
16 a strong supporter of telehealth. The
17 Legislature expanded access to telehealth by
18 including audio-only as well. I know that
19 was mentioned in your testimony as part of
20 the administration's response to the
21 pandemic, which I think is a good thing.
22 I also just want to make sure that
23 when putting in telehealth that we do have
24 some guardrails in place. It's a good thing,
84
1 increases access, gives people options and
2 choices. But for example, home care is one
3 such provider that I -- you know, I think
4 there are some concerns that it would be
5 helpful to make sure that they're not pushed
6 out and that they benefit from telehealth
7 too.
8 I wanted to ask first if you had some
9 questions -- if you had any sort of response
10 to some of those concerns that have been
11 raised.
12 DFS SUPERINTENDENT LACEWELL: So yes,
13 it's important -- look, this is going to be
14 one of the difficult things, right? We need
15 to build back better, we've got to innovate
16 to deal with the new world that we're in.
17 But with anything new, you've got to have a
18 balance of concerns and identifying and
19 capping the risks that are being generated,
20 and that includes expanding what has
21 traditionally been an in-person service to
22 something that is remote.
23 We need to go forward because that's
24 what the pandemic showed us, is that we
85
1 frankly should have moved a lot faster,
2 collectively. But we've got to make sure, as
3 you say, that we have guardrails in place.
4 And I'm happy to confer with the Department
5 of Health and with you and your staff, the
6 Legislature, to make sure that all of us have
7 appropriately identified and cabined what
8 those risks are, how we reduce incentives for
9 either unnecessary or inappropriate behavior
10 that comes along with anything. You know,
11 putting the patient, the consumer at the
12 center of the exercise and making sure at the
13 same time that the healthcare system is not
14 being abused or we're not adversely affecting
15 other professionals in the system
16 unnecessarily.
17 I don't have specific ideas today, but
18 as indicated, I'm happy to work with others
19 and with you or your staff, sir.
20 (Pause.)
21 THE MODERATOR: I think the
22 Assemblyman has a connection issue.
23 CHAIRWOMAN KRUEGER: So shall we wait
24 a few seconds?
86
1 Assemblymember, are you still with us?
2 UNIDENTIFIED MEMBER: I'm sure Cahill
3 wouldn't mind taking his --
4 (Overtalk.)
5 ASSEMBLYMAN RA: He got knocked off.
6 He's coming back on now.
7 CHAIRWOMAN KRUEGER: Okay, thank you.
8 THE MODERATOR: Yeah, we just -- he's
9 back in now.
10 CHAIRWOMAN KRUEGER: Okay.
11 CHAIRWOMAN WEINSTEIN: Okay.
12 ASSEMBLYMAN BYRNE: I'm back. I'm
13 back. I apologize. This has been a -- such
14 a frustration, I can sense, with a lot of my
15 colleagues.
16 Superintendent, I heard part of your
17 answer. I'm starting my video now. Okay,
18 we're back.
19 About home care, I just want to make
20 sure that we think about all these providers
21 and ensure that there's some sort of space
22 for them too.
23 I wanted to also just expand --
24 there's a couple of other points I want to
87
1 raise. We talked about the excess medical
2 malpractice insurance. And while the state
3 is slashing the funding for this program --
4 and I know their -- it sounds like their
5 justification is reduced enrollment and
6 participation in the program -- I fear that
7 that could further reduce participation.
8 And I want to point out that according
9 to the Westchester & Fairfield County
10 Business Journal, they're citing WalletHub --
11 this is from earlier last year -- New York
12 was burdened with the highest medical
13 malpractice award payout --
14 (Zoom drop.)
15 CHAIRWOMAN KRUEGER: Oh, lost you
16 again. On behalf of the Senate, this is not
17 a plot against the Assembly, just --
18 CHAIRWOMAN WEINSTEIN: Apparently a
19 number of the Assemblymembers are having
20 issues with being kicked out. Our tech staff
21 is trying to work and figure out what's going
22 on and see if we can --
23 (Cross-talk about the timeclock.)
24 CHAIRWOMAN WEINSTEIN: We'll, you
88
1 know, reset it for him if we can get
2 Assemblyman Byrne back in, or we can --
3 CHAIRWOMAN KRUEGER: What would you
4 like, Helene? Should we go on and come back
5 to him? Oh, wait, looks like he's coming
6 back.
7 CHAIRWOMAN WEINSTEIN: Maybe we should
8 go to the Senate and we'll come back to
9 Assemblyman Byrne when he has better
10 connections so that -- yeah, I think you
11 ought to do that.
12 CHAIRWOMAN KRUEGER: All right.
13 I want to announce that we've been
14 joined by Senator Ortt, somewhere on this
15 Hollywood Squares. But I believe he's here
16 for the next guest.
17 Hello, Minority Leader.
18 And I'm going to jump to Senator May
19 for three minutes while the Assembly is
20 trying to fix their connections.
21 SENATOR MAY: Okay, great. I don't --
22 I can't start my video, but thank you anyway.
23 Oh, here we go.
24 So I had two questions. I wanted to
89
1 follow up some of the questions about
2 telehealth, the issue of modality authority.
3 So I understand that some of the
4 barriers to telehealth in general that were
5 facilitated, made -- sort of taken away by an
6 executive order in March, but it included
7 just having the state maybe contract with
8 business associate agreements so that all
9 providers could use the same one instead of
10 having to make their own agreements with
11 telehealth services. Is this something -- or
12 with the tech providers.
13 Is this something that the state is
14 considering doing?
15 DFS SUPERINTENDENT LACEWELL: Well,
16 certainly I know that the Department of
17 Health thinks it's important to help
18 providers either to be educated, trained or
19 get the support they need to participate.
20 And that is for the benefit of all.
21 I don't know about that precise
22 proposal, but I think that the Department of
23 Health would certainly be aware. I'm happy
24 to follow up with you in that regard.
90
1 SENATOR MAY: Okay.
2 DFS SUPERINTENDENT LACEWELL: But I
3 know our DFS narrower proposals, you know,
4 fit in as part of the greater whole that DOH
5 is pursuing.
6 SENATOR MAY: Okay. Yeah, my
7 understanding is it's a contracting issue
8 that is prohibitive for individual providers.
9 But if it could be done at a state level, it
10 would be great.
11 My other question was about the
12 administrative simplification workgroup that
13 you talked about. Does that include workers'
14 compensation?
15 Because I've been hearing about just
16 enormous barriers where providers aren't
17 offering, for example, mental health services
18 to people who have workplace trauma, which is
19 going to be a lot of people these days. And
20 apparently just the paperwork is so
21 prohibitive and the time lag of getting paid
22 is so long that workers' compensation just
23 isn't working there.
24 DFS SUPERINTENDENT LACEWELL: Well, I
91
1 can certainly check.
2 And if they're not in there, I don't
3 have any problem with adding them. It's
4 meant to be as expansive as possible to --
5 there's so much overlap between issues that
6 impact on other parties.
7 SENATOR MAY: Okay. And then,
8 finally, do you have a a position on pay
9 parity for providers with telehealth and
10 in-person health?
11 DFS SUPERINTENDENT LACEWELL: So I
12 think we talked about that a little bit
13 before. We're generally, obviously -- I
14 mean, right? -- in favor of parity, like for
15 like.
16 The question is, what is the like,
17 right? What is happening on telehealth
18 versus what is happening if that service is
19 in the office? We need to look at the
20 experience generated during the pandemic and
21 other information, including from other
22 states. It's -- it's complicated to achieve
23 an equivalence, is what I'm really trying to
24 say. This is sort of one of the new areas,
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1 based on the changes and innovations, that
2 all of us are trying to make.
3 I don't have the answer, but it's
4 something that we are exploring and others
5 are exploring, and we can do that together.
6 I don't know that anybody has the answer
7 right now, because we need to look at the
8 data.
9 SENATOR MAY: Okay. Thank you.
10 DFS SUPERINTENDENT LACEWELL:
11 Certainly.
12 CHAIRWOMAN KRUEGER: Let's get back to
13 the Assembly.
14 CHAIRWOMAN WEINSTEIN: So since we
15 began, we've been joined by quite a few
16 Assemblymembers. And then we're going to try
17 Mr. Byrne again.
18 We've been joined by Assemblyman Dan
19 Rosenthal, Assemblywoman Linda Rosenthal,
20 Assemblywoman Glick, Assemblymembers Pretlow,
21 Jacobson, Reyes, Rozic and Forrest.
22 And we are going to -- Mr. Byrne has
23 indicated that he may be live again, so we're
24 going to try to go to Mr. Byrne and see if
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1 Assemblymember Byrne -- if his video and
2 internet can work.
3 CHAIRWOMAN KRUEGER: And for anyone
4 who's having trouble, our tech people have
5 recommended turning off your video and then
6 supposedly the audio might work more clearly
7 for you. Just a suggestion.
8 Thank you, Helene.
9 CHAIRWOMAN WEINSTEIN: Okay, sure.
10 And you can use the chat function if you get
11 kicked off and -- but I have the -- as does
12 Senator Krueger, we both have the lists of
13 orders of members when you raised your hand
14 originally. So not to worry if you get
15 kicked off and come back; we still have you
16 on the list.
17 Assemblyman Byrne, let's try it again.
18 ASSEMBLYMAN BYRNE: Thank you, Chairs.
19 And thank you again, Superintendent.
20 I apologize if anyone heard the
21 expletives that I shouted when I was frozen.
22 I wasn't sure if that audio went through.
23 I asked about home care and
24 telehealth, asking about, again, the Excess
94
1 Medical Malpractice Insurance Program that
2 has been reduced. And I just wanted to
3 highlight the fact again, in the Westchester
4 & Fairfield County Business Journal, New York
5 was quoted as the highest malpractice award
6 payout per capita and the most expensive
7 annual malpractice liability insurance rate.
8 And I bring that up because we're
9 reducing this program; I'm concerned it's
10 going to reduce enrollment even further.
11 But -- and this may not necessarily be
12 in your wheelhouse, Superintendent, but we're
13 doing this and we're not doing anything to
14 actually reduce the cost of medical
15 malpractice insurance. So I do have a very
16 serious objection to further reducing the
17 funding for this program.
18 And I also wanted to ask you one other
19 question; hopefully I don't freeze. There's
20 been a lot of discussion about the PBM
21 proposed regulation and registration. And I
22 just wanted to just follow up, because there
23 does seem to be a lot of players in the drug
24 chain -- wholesalers, pharmacists. And is
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1 there any consideration or thought we would
2 be registering or requiring transparency for
3 all these other players as some other states
4 may be doing as well?
5 You know, I would just like to see if
6 that was something that's being considered
7 for not just the PBMs but for other players.
8 DFS SUPERINTENDENT LACEWELL: Well,
9 the budget proposal, as you know, is for
10 PBMs. Many other players in the system --
11 obviously, doctors, providers, insurers --
12 are already regulated. So I'm very much
13 hoping and looking forward to having the
14 ability to have government make a difference
15 with respect to prescription pricing by
16 bringing transparency and oversight to the
17 PBMs.
18 ASSEMBLYMAN BYRNE: Okay. Thank you.
19 And again, I would just voice my opposition
20 to the cut in the Excess Medical Malpractice
21 Insurance Program, with many of my
22 colleagues. And my colleague the Insurance
23 chairman mentioned that as well, so I'd like
24 to echo that support for the program.
96
1 Thank you.
2 CHAIRWOMAN WEINSTEIN: Thank you,
3 Mr. Byrne.
4 Now we go to the Senate.
5 CHAIRWOMAN KRUEGER: Thank you very
6 much. And oops, if I can find my list
7 again -- it's somewhere up here -- we're at
8 Sue Serino, Senator Sue Serino.
9 Are you there, Sue? There she is.
10 SENATOR SERINO: There we go. Thank
11 you, Madam Chair.
12 And good morning, Superintendent. And
13 actually this morning just before this
14 hearing I had a call from a constituent who's
15 been living with MS for 13 years. She takes
16 a daily injection to keep her condition under
17 control. And with the help of a copay
18 assistance card, she has never had to pay for
19 the injection. But without the card, the
20 monthly cost would be $2500.
21 This month when she went to get the
22 prescription she was charged $705 with the
23 copay assistance card. Despite active help
24 from her doctors and her pharmacist, there's
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1 been no explanation for the price spike. And
2 her pharmacist told her it might even be due
3 to a penalty she's being charged for being
4 unable to use a generic version of the drug,
5 a version that has been proven to be
6 effective for her. And I'm sure you agree
7 this is truly outrageous to see such a spike
8 with no justification, especially in the
9 midst of a pandemic.
10 In November of last year you
11 established a new office to investigate
12 skyrocketing prescription drug prices, and
13 you announced the appointment of a new
14 Drug Accountability Board. Awesome. So I'm
15 wondering if you could provide an update on
16 the work of that office, what you're finding
17 and actually what recourse is available
18 through the office for New Yorkers who
19 experience these kind of spikes.
20 And is there something that we can do
21 in the budget to actually bolster the work of
22 that office?
23 DFS SUPERINTENDENT LACEWELL: Well,
24 thank you, Senator.
98
1 First, with respect to your
2 constituent, that's very upsetting. And one
3 of the worst aspects of our healthcare system
4 is when individuals are kind of caught in
5 between all the other players that have so
6 much power.
7 We have a very vibrant Consumer
8 Assistance Unit, which our staff would be
9 delighted to work with your constituent to
10 find out what happened and what can be done
11 for her individually.
12 The Office of Pharmacy Benefits has
13 been stood up. We have a full board of
14 advisors, including Assemblyman John
15 McDonald, who has experience in the pharmacy
16 industry, and we're getting all kinds of good
17 advice there. We've launched a series of
18 investigations with respect to
19 COVID-19-related drug price spiking.
20 But anyone can report a drug to be
21 reviewed for inappropriate price spiking, and
22 that's available on our website. I'll also
23 have my staff follow up with your staff. My
24 legislative affairs person, Tanusha {ph}, can
99
1 follow up and make sure that this is fully
2 explained to you and that we can reach out,
3 with your help, to your constituent.
4 SENATOR SERINO: Oh, that's awesome.
5 And I just want to say also, too --
6 I'm glad to see the emphasis on increasing
7 the access to telehealth. But I just want
8 for the record that the telehealth is only as
9 good as your access to broadband, right, the
10 internet.
11 DFS SUPERINTENDENT LACEWELL:
12 Absolutely.
13 SENATOR SERINO: So we need to focus
14 on truly getting universal access to
15 affordable, fast broadband. And I hope that
16 you'll join us in that push.
17 Thank you, Superintendent.
18 DFS SUPERINTENDENT LACEWELL: Thank
19 you.
20 CHAIRWOMAN KRUEGER: Thank you. And
21 back to the Assembly.
22 CHAIRWOMAN WEINSTEIN: Now we go to
23 Assemblywoman Hunter for three minutes.
24 I know she's been getting kicked off a
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1 number of times also, so hopefully --
2 ASSEMBLYWOMAN HUNTER: I'm here. It's
3 been challenging, the internet.
4 CHAIRWOMAN WEINSTEIN: I have you in
5 the order -- I take members in the order they
6 raise their hand --
7 (Unintelligible cross-talk.)
8 ASSEMBLYWOMAN HUNTER: -- Chairwoman,
9 thank you. And thank you, Superintendent.
10 A couple of other members have made
11 mention, so I kind of wanted to continue the
12 conversation about the telehealth. And, you
13 know, this COVID pandemic has really shown us
14 glaring gaps and disparities relative to
15 access to healthcare and, specifically, the
16 unreliability of broadband.
17 And you mentioned several times that
18 consumers are the center of what your
19 department does. So can you explain, I guess
20 specifically, what is DFS's plan to expand
21 telehealth services without the coinciding
22 necessary broadband upgrade requirements?
23 DFS SUPERINTENDENT LACEWELL: Well,
24 certainly making telephonic services qualify
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1 under the statute, which is one of the
2 Governor's proposals, so that an individual
3 can use their phone even if they don't have
4 broadband access.
5 Second, we are going to work with the
6 industry to make sure they have enough
7 providers, doctors in their network that
8 provide telehealth services. Because if that
9 person is not available, then there's nothing
10 for you to utilize because you can't do it.
11 The Department of Health has a number
12 of proposals in that regard too.
13 ASSEMBLYWOMAN HUNTER: And I can
14 appreciate that. And obviously I'm using my
15 phone right now, and I have the data and the
16 capacity to be able to do that, because my
17 computer obviously was not working.
18 But we have several instances, and
19 especially in communities of color where, you
20 know, people may have a Medicaid phone or the
21 Obamaphones, people call them, where they
22 don't have data and they don't have the video
23 capacity to do these calls.
24 My office did a survey, you know,
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1 trying to figure out who has been utilizing
2 telehealth during this. It's all been
3 suburban areas and it's all been folks who
4 are 65-plus. So we are not capturing the
5 communities who in this pandemic have not had
6 the capacity to have equitable access to
7 healthcare.
8 And another question, quickly, before
9 my time runs out. If you could please
10 explain in the department's plan to assist
11 in-state local healthcare practitioners who
12 are concerned about losing their business to
13 out-of-state web doctors to ensure that,
14 again, the consumer-centered approach we
15 talked about, that in-person quality of care
16 continues.
17 That there has been a lot of concern
18 with local doctors that this push to certify
19 and license out-of-state doctors will impact
20 the ability for local healthcare
21 practitioners to keep their businesses.
22 DFS SUPERINTENDENT LACEWELL: So great
23 question. I know the Department of Health is
24 working to help educate all providers to make
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1 sure they have the tools they need.
2 But putting that aside, look, we've
3 already had, as you know, right, a disparate
4 impact on communities of color from the
5 pandemic and from the economic jobs crisis.
6 The solution, as we build forward, can't also
7 have disparate negative impacts on those
8 communities. We need all, in all of our
9 communities, to move forward together.
10 And so I would actually be very happy
11 to work with you and your staff and others on
12 sort of more, you know, local ground-up
13 initiatives where we can do this.
14 I'd also put in a plug for our new
15 soon-to-be-opened statewide Office of
16 Financial Inclusion, which is meant to
17 address exactly this problem: How do we make
18 sure all communities are participating in our
19 financial system -- and to your point, in the
20 innovations as well that are meant to address
21 the harms that these crises have caused?
22 So I'm excited to work with you on
23 this.
24 ASSEMBLYWOMAN HUNTER: Thank you,
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1 Superintendent.
2 DFS SUPERINTENDENT LACEWELL: Thank
3 you.
4 CHAIRWOMAN KRUEGER: Thank you.
5 Next up is Senator Kevin Thomas, if he
6 is --
7 SENATOR THOMAS: I'm here. I'm here.
8 Thank you so much. Good morning,
9 Chair Krueger.
10 Good morning to the superintendent.
11 Thanks for joining us today.
12 I've got a couple of questions here
13 about artificial intelligence. As you know,
14 technology is rapidly transforming every
15 industry, specifically in the healthcare
16 sphere.
17 Artificial intelligence and algorithms
18 are taking over healthcare decisions. I've
19 heard from many constituents and hospital
20 administrators who have had medical-procedure
21 preauthorizations denied or claims denied
22 based off of algorithms that insurance
23 companies are using.
24 The infuriating part here is that the
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1 consumer does not even know that a human
2 being is reviewing it. Do you think this is
3 fair?
4 DFS SUPERINTENDENT LACEWELL: Well,
5 you've raised a very important area --
6 innovation, artificial intelligence,
7 algorithms, all of that.
8 Again, this area, which is emerging
9 and mushrooming, really, can be beneficial
10 but, if not done correctly, can be harmful,
11 and both in fact and in appearance.
12 So I think it's very important that
13 there are disclosures to consumers about what
14 is actually happening so that they understand
15 what kind of technologies are being used.
16 That's point one.
17 Point two, yes, they have to operate
18 fairly. And we have already been telling our
19 licensed entities that they have to make sure
20 if they use an algorithm or artificial
21 intelligence, they have to make sure that
22 doesn't have a disparate impact, just as if
23 they did it themselves, for example.
24 And there's a lot of work to do here,
106
1 and thank you for raising the topic. And I'm
2 sure that we can work together on this.
3 SENATOR THOMAS: Would you support,
4 you know, having insurance companies, when
5 they send a denial letter or whatever it is,
6 that it clearly states in their letter that
7 an algorithm determined this health decision?
8 DFS SUPERINTENDENT LACEWELL: You
9 know, it's a great question. I remember back
10 in the old Ingenix days where that
11 happened -- everybody got denied on their
12 out-of-network reimbursement or they got like
13 a small amount of money back, and they didn't
14 know it was some database. And it was one of
15 the things that we complained about.
16 So I do think there should be more
17 transparency. If that's not already
18 occurring, I'm sure we can look at it within
19 DFS, under our regulatory authority, and it's
20 something we ought to explore.
21 SENATOR THOMAS: Thank you so much,
22 Superintendent.
23 DFS SUPERINTENDENT LACEWELL: Thank
24 you, sir.
107
1 CHAIRWOMAN KRUEGER: Thank you.
2 Assembly.
3 CHAIRWOMAN WEINSTEIN: Yes, we're
4 going to go to Assemblywoman Bichotte
5 Hermely.
6 But before, I just wanted to say that
7 the problem, I think, with the -- that
8 members are having with the internet has to
9 do with the -- at least on the Assembly side,
10 with their main firewall systems. So that if
11 there are members in the -- in Albany who
12 are -- or other places who are trying to log
13 in through the Assembly VPN, you should --
14 and have access to a private network, you
15 should do that, and I think that would clear
16 up any issues you're having.
17 But meanwhile, our folks are working
18 on resolving this systemwide problem.
19 So now we go to Assemblywoman Bichotte
20 Hermelyn for three minutes.
21 ASSEMBLYWOMAN BICHOTTE HERMELYN:
22 Hello. Thank you so much, Chair. Thank you,
23 Superintendent, for being here.
24 I was in and out as well, and I just
108
1 wanted to kind of get some feedback on the
2 Excess Medical Malpractice Insurance Program,
3 which I know you spoke a little bit about.
4 As you know, that I'm concerned and my
5 community is concerned that this burden will
6 be on these community-based physicians.
7 The Excess Medical Malpractice
8 Insurance Program provides an additional
9 layer of $1 million of coverage to physicians
10 with hospital privileges who maintain primary
11 coverage at $1.3 million out of a $3.9
12 million level. And New York is consistently
13 having the highest cumulative medical
14 liability payouts out of any state. With so
15 much pressure, our doctors right now have
16 been justified in opposing these new
17 excessive costs.
18 We know that the federal government is
19 giving over $50 billion of supplement. Can't
20 that kind of offset these costs? As you
21 know, we are in a crisis. Many of our
22 community-based doctors service the minority
23 communities which were hit the hardest, and
24 they've been the frontline workers. They are
109
1 healthcare workers, they are heroes, they
2 are -- they have been experiencing an
3 economic loss of 10 percent of their staff, a
4 32 percent drop in revenue -- and in other
5 cases, 50 percent.
6 So we're asking you not to do this.
7 Okay? We're asking you not to put that
8 50 percent burden. There's other ways of
9 looking at this, potentially decreasing the
10 total medical -- the program so that they
11 don't have the higher burden. But can you
12 please explain a little bit more why we're
13 doing this? And given the federal stimulus
14 package, can we -- just don't do it?
15 DFS SUPERINTENDENT LACEWELL: All
16 right, thank you for that question and your
17 comments.
18 I do hear what you're saying. And
19 we've already covered a number of these
20 points. But, you know, as you indicated, the
21 excess insurance is on top of existing
22 malpractice insurance that the provider would
23 already have obtained. Not all physicians --
24 you know, if you're a dermatologist, for
110
1 example, you may or may not need that if
2 you've got other insurance.
3 The state has been 100 percent
4 backstopping this, and the assessment of the
5 data and the numbers was that the market has
6 stabilized and we don't need 100 percent
7 backstopping by the state any longer and the
8 professional should be able to add that.
9 With that being said, I do understand
10 what you're saying and I'm sure that the
11 Budget Division and the Department of Health,
12 et cetera, are also watching. And I'm sure,
13 as a matter of negotiation between the
14 branches of government, that this will be a
15 matter of discussion. And what I will tell
16 you is that I will personally convey what you
17 said, both to the Department of Health and to
18 counsel's office and the Budget Division so
19 that, you know, at a bare minimum we can
20 explore how do we ensure that there is not a
21 disparate impact on providers who serve
22 disadvantaged communities who have
23 experienced and continue to experience
24 disparities in healthcare.
111
1 So I do -- I understand your point.
2 ASSEMBLYWOMAN BICHOTTE HERMELYN:
3 Thank you very much.
4 CHAIRWOMAN WEINSTEIN: Senate?
5 CHAIRWOMAN KRUEGER: I'm sorry, I was
6 muted again.
7 Senator Griffo.
8 SENATOR GRIFFO: Thank you,
9 Senator Krueger. Thank you, Commissioner.
10 I just have a real quick question.
11 Essentially when you talk about the vaccine
12 program right now and assurances that this is
13 really not costing anybody anywhere -- anyone
14 anything -- why then are we obtaining this
15 insurance information from everybody when
16 they go to various sites?
17 DFS SUPERINTENDENT LACEWELL: Well,
18 thank you for the question, Senator.
19 Insurers are required to provide
20 insurance coverage. If you're paying for
21 insurance coverage, they need to be covering
22 it. And we did send them guidance before the
23 vaccine was launched reminding them that
24 vaccines are covered and they need to do
112
1 their part. They are collecting premiums
2 from consumers, and they need to be using
3 those dollars as required under the Insurance
4 Law and the regulations and our oversight.
5 So that helps, by the way, the state
6 or the federal government. And as you know
7 far better than I, there are limited dollars
8 to cover everything that the state and the
9 federal and local governments are handling at
10 the moment, and insurance companies are doing
11 their part. I've heard no complaints from
12 industry in that regard.
13 It's actually to the benefit of the
14 insurance company for individuals to be
15 vaccinated to help reduce infection and the
16 extent of harm to the individual, which would
17 engender vast, vast costs if the person is
18 hospitalized in the ICU and on a ventilator.
19 So I actually think this is something that
20 insurers ought to be championing and making
21 easy.
22 SENATOR GRIFFO: So basically what
23 you're saying, then -- I understand that,
24 Commissioner.
113
1 But what I'm asking you is that based
2 on obtaining that information at the state
3 facilities that are conducting vaccines right
4 now, all that insurance information that's
5 being gathered and being sent to the
6 insurance company, the money is coming back
7 to the state, then. So that part of that
8 money is being -- the insurance companies are
9 covering this, but when there was copays,
10 things like that, are you billing, is the
11 State of New York then getting money from
12 these insurance companies or these other
13 distribution sites?
14 DFS SUPERINTENDENT LACEWELL: No. No.
15 The federal government is paying for the
16 vaccine, as I'm sure you're aware. This is
17 simply processing it through insurance
18 companies. The federal government is
19 committed, the state is committed that no
20 individual, with or without insurance, would
21 be paying for a vaccine.
22 So I understand your question. But
23 certainly the state is not profiting or
24 receiving funds from insurance companies in
114
1 connection with the vaccine. I'm happy to
2 follow up on that and get you a written
3 answer that's more detailed.
4 SENATOR GRIFFO: Thank you for your
5 time.
6 CHAIRWOMAN KRUEGER: Thank you.
7 Assembly.
8 CHAIRWOMAN WEINSTEIN: We go to
9 Assemblywoman Seawright.
10 (Pause.)
11 ASSEMBLYWOMAN SEAWRIGHT: Can you hear
12 me? Am I unmuted?
13 CHAIRWOMAN KRUEGER: Yup, you're good.
14 ASSEMBLYWOMAN SEAWRIGHT: Thank you.
15 Thank you, Superintendent Lacewell.
16 I have Roosevelt Island in my
17 district, and last year it lost its only
18 bank. My office, along with other elected
19 officials that represent the island, have
20 been working with DSS to get a replacement
21 chain to take over on the island. Many
22 residents or seniors --
23 CHAIRWOMAN WEINSTEIN: Assemblywoman,
24 I hate to interrupt, but this is the -- DFS
115
1 is here to address health issues, not other
2 issues under their jurisdiction. So if your
3 question is not health-related, I think we
4 have to take care of it offline.
5 DFS SUPERINTENDENT LACEWELL: And I'm
6 happy to do that, Assemblywoman. We have a
7 number of programs, as I'm sure you know.
8 ASSEMBLYWOMAN SEAWRIGHT: Sure.
9 CHAIRWOMAN KRUEGER: Do you have any
10 health-specific questions, Rebecca?
11 ASSEMBLYWOMAN SEAWRIGHT: Well, I
12 think not having a bank on Roosevelt Island
13 impacts --
14 (Laughter.)
15 ASSEMBLYWOMAN SEAWRIGHT: -- it being
16 an island of a large --
17 CHAIRWOMAN WEINSTEIN: That's a little
18 sneaky. Okay, we're going to --
19 (Laughter.)
20 CHAIRWOMAN KRUEGER: Oops. I'm not
21 really trying to help, I was just trying to
22 be polite.
23 CHAIRWOMAN WEINSTEIN: I know.
24 CHAIRWOMAN KRUEGER: Assemblywoman,
116
1 why don't we take another Assemblymember who
2 has more of a --
3 CHAIRWOMAN WEINSTEIN: Yes.
4 Assemblywoman Linda Rosenthal.
5 ASSEMBLYWOMAN ROSENTHAL: Hi. Hi,
6 good to see you. I have a couple of
7 questions.
8 My first question is about testing.
9 And as many in the city saw, the lines for
10 testing at certain times and days were
11 wrapped around the block and people had to
12 wait four or five hours just to get a test.
13 At some of those urgent cares, people
14 were actually not just tested but brought
15 into rooms, had a, quote, visit where their
16 vitals were taken and other information, and
17 that was billed, as far as I understand, as a
18 visit. As opposed to, let's say, an H+H
19 facility, where you went in, got a swab stuck
20 up your nose, and you left.
21 So can you explain the difference
22 in -- what kind of billing differences were
23 there for that, and were these urgent cares
24 authorized to actually conduct visits so they
117
1 could -- you know, the result of which is
2 they got probably extra money?
3 DFS SUPERINTENDENT LACEWELL: So thank
4 you for the question. Happy to look into the
5 specific facts.
6 The only thing that can occur to me is
7 that if somebody came and they were
8 experiencing symptoms and they needed a
9 medical consult, that might have occurred
10 alongside, before they're given the test.
11 But certainly if it's anything other
12 than that, it would be of concern, and I'm
13 happy to speak with your staff alongside and
14 get the facts and circumstances and figure
15 out what that was.
16 ASSEMBLYWOMAN ROSENTHAL: No, I think
17 it was everybody had to go into a room with a
18 healthcare professional and, you know, they
19 had different questions to answer and vitals
20 taken. Seemingly unnecessary for everyone
21 who simply wanted a COVID test to go through.
22 And I understand it was billed as a
23 visit. So if you could enlighten me, you
24 know, about how that comes about and if that
118
1 was the -- I don't know if that was the
2 intended purpose of these urgent cares, to
3 conduct visits.
4 DFS SUPERINTENDENT LACEWELL: Right.
5 I mean, obviously there's a temperature
6 screening and things of that like, but
7 nothing of the description that you provided.
8 Again, I'm happy either to speak with
9 you after the hearing or have our staffs
10 connect and if you can get us the specific
11 information where this was occurring, we can
12 certainly look into it and we will.
13 ASSEMBLYWOMAN ROSENTHAL: All right.
14 Thank you.
15 DFS SUPERINTENDENT LACEWELL: Sure.
16 CHAIRWOMAN KRUEGER: Thank you.
17 Senator Biaggi.
18 SENATOR BIAGGI: Thank you,
19 Madam Chair. I'm also having unstable
20 internet, so I apologize if I drop off. Just
21 please go on to the next person so I don't
22 stop anybody.
23 Okay, I'm ready to begin. Thank you
24 so much.
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1 Hi, Madam Superintendent. I only have
2 a few questions, and they're actually very
3 narrow in nature, so hopefully we can get
4 some answers here.
5 So I'm just wondering if DFS is aware
6 of the situation that's surrounding
7 UnitedHealthcare. Essentially what has
8 happened is that they have, in the middle of
9 this pandemic, decided to go out of network
10 to many, many, many different individuals who
11 have UnitedHealthcare as their, you know,
12 main insurance company. And predominantly
13 where this is actually impacting are
14 communities of color and low-income
15 communities.
16 So I'm just wondering, first and
17 foremost, if DFS is aware of this.
18 DFS SUPERINTENDENT LACEWELL: Thank
19 you. Yes, I read the news reports and the
20 comments from members, I believe including
21 yourself. And although we don't have
22 jurisdiction over these contracts, I
23 similarly was concerned that folks were not
24 at the table negotiating this.
120
1 And I personally called the head of
2 UnitedHealth Group -- not the New York
3 company, the national company -- and I called
4 the head of Montefiore, and I said this is
5 unacceptable, I'm not getting involved in the
6 substance, but you've got to get to the table
7 on behalf of the people that you are serving,
8 and without an excuse. And they did, they
9 returned.
10 We're monitoring those negotiations.
11 I would continue to ask both sides to do the
12 right thing and try to come to a
13 resolution -- especially, as you indicate,
14 during a pandemic. We've got to get this
15 done.
16 SENATOR BIAGGI: Okay, I appreciate
17 that. I am grateful that you are involved in
18 that.
19 I just want to note one thing to you.
20 This particular insurance company,
21 UnitedHealthcare, has made like, I mean,
22 significant, significant profits during this
23 pandemic. And it just -- it seems like it is
24 nefarious action being taken. And the reason
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1 why I can say that in good faith is because
2 they're not actually just doing this in
3 New York, they're also doing this in Georgia.
4 So I would really appreciate perhaps
5 if, you know -- I mean, I hear you that DFS
6 doesn't have official jurisdiction. But
7 since you have already reached out and had
8 those conversations, I would really
9 appreciate just a follow-up, an official
10 follow-up from your office to mine, mainly
11 because this affects a significant portion of
12 people who live in the Bronx who already are
13 on the verge of, frankly, just like mass
14 destitution, I mean in every single way.
15 And so to go to the doctor in a place
16 where, you know, usually you can go to the
17 doctor but also to be in a situation where
18 you might be unemployed or on the verge of
19 becoming homeless and then your health
20 insurance is not even taken and then people
21 are getting a lot of surprise bills -- it's
22 highly problematic.
23 So I really will look forward to us
24 connecting and following up and then also
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1 hopefully having some kind of resolution to
2 this. Because I'm deeply, deeply concerned
3 that a large portion of Bronxites would be
4 left with large surprise bills in this
5 moment.
6 DFS SUPERINTENDENT LACEWELL: Happy to
7 do so.
8 SENATOR BIAGGI: Okay, thank you.
9 CHAIRWOMAN KRUEGER: Okay. Thank you.
10 I actually think I'm the last one up for
11 first round, then our chairs may choose to
12 have second rounds.
13 So, Commissioner, midwives have come
14 to me with the fact that they don't have the
15 option to purchase malpractice insurance that
16 covers prenatal care but not delivery
17 services, even though the vast majority of
18 them are not providing delivery services --
19 maybe they should be, but they don't have
20 access to locations to do so.
21 So can you help me understand what
22 could be done to allow midwives to purchase
23 the coverage for the services they provide,
24 which would be far less expensive than
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1 including coverage for births. As you and I
2 both know, births end up in a very high risk
3 category for health insurance, and even in a
4 different program.
5 So is there a way to help those
6 midwives who are performing all kinds of
7 important services, but not actually
8 delivery, to have insurance?
9 And I think directly correlated, and
10 maybe explaining this, is do the midwives no
11 longer have access to malpractice insurance
12 like at all? Is there some rule that's gone
13 through that doesn't allow them to have
14 malpractice insurance? And why was it
15 discontinued if it disappeared?
16 DFS SUPERINTENDENT LACEWELL: Well, I
17 will look into that last question. I'm not
18 aware of any changes.
19 But with respect to the larger
20 question, I will confer with our property
21 division, which speaks regularly with all
22 kinds of providers of insurance in this
23 regard, and find out is this service -- is
24 this product not available, why is it not
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1 available, are there players in the market
2 who are interested in providing it, how do we
3 encourage that, what are the obstacles -- and
4 get that back with you, Chair, about what is
5 happening in regard for midwives who are
6 trying to obtain this kind of protection,
7 that they play a very important role. And
8 we'll get to the bottom of it.
9 CHAIRWOMAN KRUEGER: Great.
10 And actually so when I'm thanking you
11 for getting back to me with that, I'm also
12 saying, on behalf of Helene and I, many
13 members asked you questions today where you
14 said you would need to get back to them.
15 We're asking that you, yes, get back to them
16 but also send the answers to Helene and
17 myself, and we will make sure they go up on
18 the websites that share information from
19 these hearings so that everyone can take
20 advantage of the information you're offering.
21 DFS SUPERINTENDENT LACEWELL: Happy
22 to.
23 CHAIRWOMAN KRUEGER: Thank you.
24 So a follow-up question -- and there
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1 seemed to be a number of questions sort of
2 around it today, and I'm not sure if they're
3 exactly the same question.
4 There's a belief at least that
5 regulating risk retention groups who enter
6 New York State is something that we have not
7 gotten our arms around, so that several of
8 them have recently failed and they are
9 leaving doctors without coverage. And the
10 Governor in his budget wants to cut the
11 funding for the excess liability pool.
12 But if the actual insurance options
13 for the medical community are disappearing on
14 us, what are we doing? So we would lose
15 these companies who came in and promised to
16 offer us -- I guess they're called risk
17 retention groups -- these higher-cost
18 insurance policies for doctors, they're
19 leaving and we're reducing the excess
20 liability pool. Are both of those true?
21 DFS SUPERINTENDENT LACEWELL: Well, I
22 don't know if we're talking about exactly the
23 same thing.
24 But DFS has worked directly with the
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1 providers of medical malpractice insurance to
2 help make them more robust financially and to
3 expand competition in the market by bringing
4 in new entrants. Because the market has been
5 stabilizing in that regard, this additional
6 level of excess coverage that has been
7 backstopped by the state, the assessment has
8 been, based on the data and the dollars, that
9 the state could reduce that participation by
10 50 percent and doctors can elect as to
11 whether or not they want this additional
12 coverage, pay part of the cost themselves,
13 which gives them some skin in the game too --
14 otherwise you're just taking a free policy,
15 potentially. And so that is what the
16 proposal is in the Executive Budget.
17 That's sort of my understanding as to
18 what's happening in that area. I don't know
19 if that fully answers your question. I'm
20 happy, again, to come back with more details
21 to you.
22 CHAIRWOMAN KRUEGER: I think the
23 overall question is concerns that there are
24 specific healthcare providers who are having
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1 more and more trouble getting insurance
2 coverage through whatever ways, and in theory
3 the state makes it available. And so the
4 concern is are we looking at these questions
5 right.
6 So, you know, one was specific to
7 midwives, which is a healthcare provider
8 who's not an M.D., the other relates to I
9 think insurance through various sources that
10 primarily go to physicians, as opposed to
11 others in the healthcare field.
12 DFS SUPERINTENDENT LACEWELL: All
13 right. Well, let me go back and get into the
14 details further, and I'll follow up with a
15 written response for yourself.
16 CHAIRWOMAN KRUEGER: And then there
17 was earlier questions about the impact of
18 insurance that people thought were going to
19 cover them during the pandemic, business
20 interruption insurance for people in
21 healthcare.
22 Can you get us a list of who actually
23 ever paid out on this? I'm convinced -- I
24 mean, you were explaining why it's very
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1 difficult to change the rules of the road for
2 insurance coverage. But I'm just wondering,
3 is the whole world paying for a specific kind
4 of insurance that never pays out, period, so
5 we shouldn't even allow that kind of
6 insurance to be in New York State?
7 DFS SUPERINTENDENT LACEWELL: Well, I
8 think -- yes, we'll come back to you with
9 details on this.
10 But obviously business interruption
11 insurance, as it's known, covers a wide range
12 of things that may cause a business to close
13 down. The problem is they either exclude
14 pandemics or they require, typically,
15 property damage.
16 And that's probably a way for them to
17 help determine what the financial risk is for
18 them. We've got to make sure we don't drive
19 our insurance companies, property and
20 casualty insurers, out of business also.
21 But there have been a number of
22 questions on this, so I do think it would be
23 appropriate for me to work with the team to
24 put together something in writing that I can
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1 get to you and that can be shared with the
2 other members as well, as you suggest,
3 through the website or otherwise.
4 CHAIRWOMAN KRUEGER: Appreciate it.
5 Thank you.
6 I'm now going to move, for second
7 round, to the Insurance chair from the
8 Assembly, Kevin Cahill, for five minutes.
9 Oh, and Helene got back just as I said
10 that. Okay.
11 CHAIRWOMAN WEINSTEIN: Yes. Kevin?
12 ASSEMBLYMAN CAHILL: Thank you,
13 Chairs. I really do appreciate it.
14 Thank you, Superintendent, for
15 enduring our questions. And I apologize to
16 you if you think I was a little bit rough in
17 the first round, but there was a lot of
18 ground to cover and only 10 minutes to cover
19 those topics.
20 So I'd like to spend the next few
21 minutes just talking about a few of the
22 things we already mentioned and making sure I
23 understand what you promised us.
24 You are going to send complete details
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1 on the suballocations that are included in
2 the Department of Financial Services's budget
3 that are derived from insurance company and
4 bank assessments?
5 DFS SUPERINTENDENT LACEWELL: Yes.
6 ASSEMBLYMAN CAHILL: Okay. The next
7 thing, will you work with the Legislature --
8 and I'll be clear, not me, Amy Paulin and
9 Dick Gottfried in our house and a significant
10 group of people in the Senate -- to help
11 reach a conclusion on early childhood
12 intervention services between now and the
13 budget that will actually make it so that we
14 don't have our overburdened providers doing
15 the collection work for New York State?
16 DFS SUPERINTENDENT LACEWELL: Happy to
17 work with the group on that.
18 ASSEMBLYMAN CAHILL: Thank you very
19 much. We'll follow up with that as well.
20 Will you also revisit the excess
21 medical malpractice issue from the
22 perspective of those providers who are
23 providing care in at-risk and difficult
24 communities who cannot afford medical
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1 malpractice, as opposed to the perspective
2 that you indicated in your testimony of those
3 who have already left that realm?
4 We still have a problem for people who
5 can't afford it. Will you agree to send us
6 some information as to how you intend to make
7 excess medical malpractice insurance more
8 affordable for those who are working in
9 at-risk hospitals and other settings?
10 DFS SUPERINTENDENT LACEWELL: So I
11 don't want to promise that I'm going to have
12 the answers, right?
13 What I promise to do is to confer with
14 the right entities -- DOH, Department of
15 Budget, counsel's office, members of the
16 Legislature -- and to get back with you with
17 a response.
18 What I don't want is anybody to think
19 I'm going to solve all these complicated
20 issues between now and the budget. I wish I
21 could.
22 ASSEMBLYMAN CAHILL: Fortunately for
23 you, we've offered significant workable
24 legislative solutions to each one of the
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1 things that I've mentioned. And all you have
2 to do is say yes. It's that easy. Take a
3 look at our proposals. If you say yes, then
4 it gets done.
5 So I understand your position. All
6 I'm asking is a good-faith effort, as opposed
7 to what we've confronted in the past, which
8 is something I'll get to in my conclusion.
9 Just going back to the no-fault panel,
10 what was the thinking behind having only
11 members of the executive branch of government
12 serve as members of the panel that were going
13 to review no fault? And if that was a
14 conscious decision -- as opposed to bringing
15 people in from the industry, bringing agents
16 and brokers in, bringing consumer
17 representatives in, bringing members of the
18 Legislature into that mix -- why do you need
19 legislation to accomplish that?
20 DFS SUPERINTENDENT LACEWELL: I don't
21 think there's any deliberate intent to
22 exclude members. We know there are different
23 models for these kinds of enterprises, and
24 sometimes what you're doing is bringing
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1 together all the executive actors in that
2 regard, and then they engage with experts and
3 stakeholders across the board.
4 Sometimes you put them all on a panel
5 together and have them hash it out.
6 They're simply different models. I
7 don't think there was any particular intent.
8 ASSEMBLYMAN CAHILL: Understood. Is
9 there any reason that you need legislation to
10 do that? Can't the Governor pick up the
11 phone and say, Superintendent, have a
12 conversation with the commissioner and let's
13 work this out?
14 DFS SUPERINTENDENT LACEWELL:
15 Certainly you don't require legislation to
16 have a number of state agencies get together
17 on an ongoing basis.
18 ASSEMBLYMAN CAHILL: I'm going to --
19 DFS SUPERINTENDENT LACEWELL: And you
20 also don't need legislation to do studies,
21 and we do many of these things all the time
22 through legislation as an expressed
23 commitment toward the priority that is in --
24 ASSEMBLYMAN CAHILL: When the
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1 Legislature thinks that something should be
2 done by the Executive and it's not being done
3 by the Executive, we are forced to resort to
4 legislation to get it done. It's not
5 necessary for the Executive to force
6 themselves to do something that they have the
7 power to do. So we'll move on with that.
8 Can I also ask you to review the
9 amicus brief that was filed on behalf of you
10 and all the people of New York State by the
11 Attorney General and the attorneys general of
12 45 states of this country, and also the
13 opinions and the model legislation drafted by
14 your organization, the National Association
15 of Insurance Commissioners, and also to
16 review the decision written by Supreme Court
17 Justice Sotomayor to determine whether you
18 are prepared to conclude that regulation of
19 a -- state regulation of an intermediary is
20 the direct regulation of health benefits and
21 therefore conflicts with ERISA?
22 Which, by the way, is exactly the
23 opposite of Justice Sotomayor's holding. I
24 am here to tell you that it is my view that
135
1 the State of New York and in particular the
2 Executive, who has taken time to veto our
3 legislation, is specifically standing in the
4 way of comprehensive regulation of PBMs. And
5 for the life of me, from the view of a
6 consumer, I don't know why.
7 Thank you very much, Superintendent.
8 My time has run out.
9 CHAIRWOMAN KRUEGER: And I think
10 there's one more Assembly chair who wanted a
11 second round?
12 CHAIRWOMAN WEINSTEIN: No, I think we
13 are finished on the Assembly side. If you
14 don't have someone on the Senate, I know that
15 the technical staff I believe needs a minute
16 to repost the witness list, so that we need
17 to pause the live -- pause our next -- the
18 live feed till they reload that so we --
19 CHAIRWOMAN KRUEGER: Very good. We'll
20 thank the superintendent, because I don't
21 believe we have any more questions for you.
22 So thank you for being with us. We
23 look forward to quite a bit of data coming
24 out of your shop in response to the many
136
1 questions.
2 DFS SUPERINTENDENT LACEWELL:
3 Understood.
4 CHAIRWOMAN KRUEGER: And we will --
5 thank you. We will do whatever for a minute,
6 come back, and Commissioner Zucker is here
7 with us when we come back.
8 (Brief recess taken from 11:46 to
9 11:51 a.m.)
10 CHAIRWOMAN KRUEGER: Thank you. Good
11 afternoon. I'm Senator Liz Krueger, chair of
12 Senate Finance Committee, joined by
13 Assemblywoman Helene Weinstein, chair of the
14 Ways and Means Committee, having our
15 13th hearing on the Executive Budget proposed
16 by Governor Cuomo. It is the Health Hearing.
17 We started off this morning with the
18 superintendent of the Department of Financial
19 Services in relationship to health insurance,
20 and we are now moving on to Dr. Howard
21 Zucker, the commissioner of the New York
22 State Department of Health, who will have
23 10 minutes to testify and introduce whoever
24 he has with him, and then we will open it up
137
1 to questions.
2 And these hearings are being held
3 online, live, with the two largest committees
4 of the Senate and Assembly. And based on the
5 number of requests already, pretty much every
6 member has questions.
7 So Dr. Zucker, I hand it to you.
8 COMMISSIONER ZUCKER: Thank you very
9 much. And good morning, Chairpersons --
10 SENATOR O'MARA: Chairwoman,
11 Chairwoman Krueger, I have a request that
12 this witness be sworn in.
13 CHAIRWOMAN KRUEGER: You know,
14 Senator, I don't know that we have a format
15 for swearing in at budget hearings, and so it
16 would be a little unusual to try to come out
17 with one that we all respected at this
18 moment.
19 Commissioner Zucker, do you intend to
20 tell us the truth?
21 COMMISSIONER ZUCKER: Of course I'll
22 tell you the truth. Yes.
23 SENATOR O'MARA: Note my objection.
24 CHAIRWOMAN KRUEGER: Thank you.
138
1 Please continue, Senator -- excuse me,
2 Commissioner.
3 COMMISSIONER ZUCKER: Thank you.
4 And good morning, Chairpersons Krueger
5 and Rivera, Weinstein and Gottfried, and
6 members of the New York State Senate and
7 Assembly.
8 I thank you for the opportunity to
9 present Governor Cuomo's fiscal year 2022
10 Executive Budget as it relates to the health
11 of all New Yorkers.
12 I am joined by Donna Frescatore, the
13 State Medicaid Director and the Director of
14 the New York State of Health.
15 And I also will just mention, given
16 that there's a lot of technical aspects of
17 Zoom, I have my audiovisual person in the
18 room, in case you see some movement. In case
19 we drop out of the Zoom, I want to be sure we
20 get right back on.
21 One year ago I sat before you, in
22 person, for the same reason. In my testimony
23 I commented on a new virus identified in
24 Wuhan, China, that warranted close
139
1 monitoring. We sit here today, virtually,
2 because of the course that virus took during
3 these past 12 months.
4 In my medical and public health career
5 I have borne witness to and worked on
6 resolving many health challenges, but few
7 have had as far-reaching impact as this
8 pandemic. The virus we call SARS-CoV-2 has
9 put society on hold, but it has tapped into
10 the ingenuity of researchers, the intestinal
11 fortitude of health workers, and the
12 resilience of us all during the past year.
13 COVID-19 has caused unprecedented pain
14 and grief for many New Yorkers who are still
15 struggling to find meaning and closure in
16 these uncertain times.
17 The Department of Health, under
18 Governor Cuomo's leadership, has tackled this
19 pandemic with all of its heart and soul. The
20 staff has given -- and continues to give --
21 every ounce of energy to stopping this
22 pandemic, from Wadsworth Lab developing the
23 nation's first COVID-19 test outside of the
24 CDC in February of last year, to launching
140
1 more than a dozen state testing sites that we
2 still operate today, to building an army of
3 contact tracers and a comprehensive
4 vaccination program that has already put
5 nearly 4 million shots in the arms of
6 New Yorkers in the first two and a half
7 months.
8 Today marks my 414th straight day of
9 tackling this virus on behalf of New Yorkers.
10 I wish I could say that I had all the answers
11 back then. I didn't. We didn't. Not the
12 scientists, the public health experts, the
13 journalists, the policymakers, those on the
14 front lines -- none of us. Ironically, the
15 year was 2020, and with 20/20 foresight we
16 would have built stockpiles, implemented more
17 precautionary measures, and revved up
18 manufacturing. Instead, we have all learned
19 together.
20 New scientific findings shaped new
21 policy. Recommended behaviors designed to
22 save lives -- like social distancing, masks,
23 shutdowns, testing -- have become tiresome.
24 The urgency of the situation, the deadly
141
1 nature of COVID-19, meant decisions had to be
2 made more quickly than the science was
3 evolving.
4 I cannot speak of COVID-19 without
5 turning to the nursing homes. Yes, there
6 were deaths -- too many. Yes, nursing home
7 residents were and remain among the most
8 vulnerable. And yes, there have been
9 questions.
10 In July I presented a comprehensive
11 assessment of what likely happened in nursing
12 homes, here in New York and all over the
13 globe. What we said in July remains true
14 today. The virus, despite all of our
15 collective best efforts to prevent it, was
16 inadvertently brought into the nursing homes
17 by dedicated staff at a time when we did not
18 know enough about the science. It was
19 tragic, it was troubling, but it's true.
20 I was asked to provide the numbers of
21 deaths by facility, by location of death, by
22 whether confirmed or presumed. To the best
23 of the department's ability, I have done so.
24 If some wish to find fault with the process,
142
1 I ask them to remember that we continue to
2 battle this pandemic. As a resident of
3 New York, I believe in transparency. As a
4 doctor, I believe in accuracy. And we did
5 our best to achieve both.
6 There is much more we can achieve if
7 we apply the lessons of 2020 as we turn to
8 2021. As we now focus on the budget, the
9 reason we are here today, we need to keep
10 this in mind. So let's start with the
11 nursing homes.
12 Last week the Governor announced a
13 comprehensive plan to bring real reform to
14 the nursing home industry. Reform means
15 prioritizing patient care over profit,
16 focusing on services that directly impact
17 residents, and staffing programs accordingly.
18 Reform means disclosing payer rates and what
19 goods and services Medicare and Medicaid
20 funding is spent on. Reform means increasing
21 public health violation penalties to $25,000
22 and removing grace periods for fixing
23 violations. Reform means operators with
24 repeat infection control violations must work
143
1 with an independent quality improvement
2 monitor on their own dime. And finally, it
3 means if an operator cannot protect the
4 health and safety of their residents, we will
5 move quickly to appoint somebody who can.
6 We are living in a different world
7 than we were a year ago. We all learned to
8 live remotely this year -- remote work,
9 remote school, remote shopping, remote family
10 time, and remote healthcare. We can now
11 build on this positive transformation through
12 reforms that will lower costs, enhance care
13 for vulnerable populations, and increase
14 access to telehealth services from primary
15 care to early intervention.
16 These reforms will also expand access
17 to mental health and substance use services,
18 which is a critical need in the wake of a
19 pandemic that has exacerbated these
20 challenges.
21 As you have heard from my fellow
22 commissioners, this budget will propose
23 legislation to establish a single integrated
24 license for outpatient mental health,
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1 substance use, and physical health services,
2 meaning New Yorkers can receive all of the
3 services they need in one location.
4 And that care needs to be affordable,
5 which is why the department will continue to
6 work with its sister agencies to implement a
7 strong regulatory framework to enforce
8 insurers' compliance with parity for
9 reimbursement for all three service types.
10 Furthermore, the New York State of
11 Health has provided low-income families
12 quality health insurance through the
13 Essential Plan, but monthly premiums can be a
14 barrier. This budget will eliminate monthly
15 premiums for over 400,000 New Yorkers, saving
16 families nearly $100 million in annual
17 premiums and enrolling 100,000 currently
18 uninsured New Yorkers.
19 In addition, this budget will provide
20 $420 million to promote access to vital
21 healthcare services for Essential Plan
22 enrollees. It will also commit $200 million
23 to support an Essential Plan Quality Pool to
24 promote high-quality care.
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1 All of these efforts continue to move
2 us toward our goal of making New York the
3 healthiest state in the nation. The Nourish
4 NY initiative will continue to encourage the
5 purchase of goods from New York State farmers
6 and producers and help ensure access to local
7 nutritious foods. We'll continue our
8 commitment to make it easier for transgender,
9 gender nonconforming and nonbinary
10 New Yorkers to have identity documents that
11 reflect who they are. And we'll continue our
12 fight to reduce maternal mortality and racial
13 disparities.
14 And the budget will, of course, allow
15 us to continue our fight against COVID-19,
16 with increased testing capacity and expansion
17 of the statewide COVID-19 vaccination program
18 that will emphasize health equity and reduce
19 vaccine hesitancy. Our viral adversary is
20 continually mutating, and we need to stay
21 vigilant.
22 And finally, we'll need public health
23 emergency response capacity that lasts beyond
24 COVID-19 to the next pandemic or other threat
146
1 to the health and safety of New Yorkers. The
2 past year has shown us what public health
3 does. The state will create a New York
4 Public Health Corps, including public health
5 professionals, nurses, medical and
6 pharmaceutical students from undergrad to
7 doctoral levels, as well as retired medical
8 professionals and volunteer first responders.
9 They will come from every region and
10 background in the state, and they will be
11 given opportunities to work in their own
12 communities.
13 As Governor Cuomo has stated, New York
14 State is stronger because of the way we have
15 united to fight COVID-19. I am confident
16 that we will prevail against COVID-19 and the
17 future of public health will flourish in
18 New York State.
19 Thank you.
20 CHAIRWOMAN KRUEGER: Thank you very
21 much.
22 Our first questioner will be Senator
23 Gustavo Rivera, 10 minutes, please.
24 SENATOR RIVERA: Madam Chair, I will
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1 actually not ask questions at this time but
2 will reserve my 10 minutes for later on in
3 the program. Thank you.
4 CHAIRWOMAN KRUEGER: You're welcome.
5 Well, then I'm going to invite our
6 special guest, Minority Leader Robert Ortt,
7 to be the next questioner.
8 SENATOR ORTT: Thank you, Madam Chair.
9 Thank you, Chair Weinstein.
10 I also want to recognize
11 Senator O'Mara for his leadership during
12 these hearings as well.
13 Commissioner, thank you for joining
14 us. I do appreciate it, as I know all of my
15 colleagues, both Democrat and Republican,
16 both Assembly and Senate, appreciate you
17 being here today, not only to discuss the
18 budget but obviously to discuss the nursing
19 home issue and the department's response to
20 that over the last several weeks and over the
21 last several months, to be very honest with
22 you.
23 So, Commissioner, I have to ask you --
24 I know you said what you said back in July
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1 still is true today, but there have been a
2 lot of reports that could seem to contradict
3 that statement alone. And I was going to ask
4 you about your July report on factors
5 contributing, obviously, to COVID nursing
6 home deaths, which was updated in February to
7 include the real extent of nursing home
8 deaths. And it continues, though, in both
9 versions, and as you continue here today, to
10 assert that the March 25th directive did not
11 contribute to the spread or to fatalities.
12 Yet -- yet -- the Attorney General
13 issued a report several weeks ago and the
14 Empire Center, once they were actually --
15 once a judge gave them the information that
16 they FOILed, both the Empire Center and the
17 Attorney General of the State of New York
18 issued reports that concluded that the
19 March 25th directive did contribute to the
20 spread and, by extension, contributed to
21 fatalities in nursing homes.
22 We also know that you had the
23 information that the Legislature requested at
24 the hearing over the summer and requested
149
1 several times through media outlets and
2 others, but we now know -- not directly from
3 you, but from others in the administration --
4 that that data was deliberately withheld for
5 reasons that I would term are shameful.
6 So having said all that, I have three
7 questions for you -- because I don't have a
8 ton of time, so I'm going to ask you three
9 questions and I would like you to respond.
10 What changed in the updated report,
11 the July to February report?
12 And secondly and thirdly, you still --
13 is it your assertion -- you did not mention
14 the March 25th order in your testimony. Is
15 it still your assertion that the March 25th
16 order, which the Attorney General and the
17 Empire Center both concluded played a role in
18 the spread and in the fatalities, is it your
19 continued assertion that that directive did
20 not have any effect -- you mentioned -- you
21 blamed the staff, but there was no mention of
22 the March 25th order. Do you still contend
23 that that played no role?
24 And lastly, if that is true, then why
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1 was that order, the directive, rescinded
2 almost two months after the fact on May 10th?
3 It would seem to me -- the fact that that was
4 rescinded on May 10th would indicate that it
5 either wasn't working or that in fact it was
6 contributing to the spread in these nursing
7 home facilities.
8 So again, is it your contention that
9 the order did not play a role? And if so,
10 why was it rescinded and what changed in the
11 report from July to February?
12 COMMISSIONER ZUCKER: So let me --
13 thank you for your question. Let me answer
14 them as -- in the parts that you raised.
15 Well, first, there are some statements
16 which are not accurate, and we'll get to
17 those. But the first question you had was
18 what changed in the -- I'm looking at my
19 notes -- what changed in the updated report?
20 The fact is that I support the July
21 assessment, and I continue to support it to
22 this day.
23 From July to the present point, we had
24 more data, we put the data -- and it
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1 confirmed exactly what we found back on
2 March 25th. It is troubling to me that we
3 keep going back to an issue where all the
4 data has shown -- not just New York, but
5 across the country -- that this is not what
6 brought the infection into the nursing homes.
7 The -- and we can get more into the data
8 about -- or the guidances from both CMS and
9 CDC --
10 SENATOR ORTT: Commissioner, if I may.
11 COMMISSIONER ZUCKER: Can you not hear
12 me?
13 SENATOR ORTT: Is the Attorney
14 General's report wrong? Is the Empire
15 Center's analysis --
16 COMMISSIONER ZUCKER: The Attorney
17 General did not -- the Attorney General did
18 not say that the March 25th memo brought this
19 into the nursing homes.
20 And the Empire Center, Bill Hammond,
21 I -- I don't know Bill Hammond. I have not
22 had a chance to review his assessment. I
23 know he's a journalist now, he's working in a
24 think tank.
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1 But I know my team. And I know how my
2 team works. And I know the commitment that
3 my team made to evaluating this report and
4 looking at the data. And so I can speak to
5 my team. And what we found was -- and I will
6 reiterate it -- that there was 37,000 staff
7 who ended up having COVID, and they brought
8 it in, inadvertently, at a time when we did
9 not know about asymptomatic spread.
10 Remember, back then the -- we asked
11 the international -- or the national experts,
12 we asked Fauci himself, Dr. Fauci. He said,
13 you know, asymptomatic spread is not a driver
14 of the pandemic.
15 So, I mean, they brought it in, they
16 brought it in inadvertently. And that is how
17 it spread. Ninety-eight percent of all the
18 nursing homes had COVID in it even before
19 anyone's even sent back to a nursing home.
20 They went from the nursing home to the
21 hospital because they had COVID, the vast
22 majority, and so it was already in the
23 nursing homes. So that's the first part of
24 the issue.
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1 And let's just keep going down that
2 whole path a little bit on the reasoning
3 here. So they brought it into -- you have it
4 in the nursing home. There's a memo, there's
5 a guidance that's put out that says that
6 nobody should go back to the nursing homes
7 who are COVID-positive in May -- this is what
8 you were referring to -- and the order was
9 not rescinded, there was a -- so I think
10 that's the wrong word. That is not the
11 correct issue. That was a different guidance
12 that was put out.
13 But let's just use the issue of May
14 10th, which is what you're referring to. So
15 there was no one who was coming back into the
16 nursing homes with COVID-positive tests --
17 that doesn't mean they were contagious, but
18 we'll just stay with that for a second.
19 There was no one going into the
20 nursing homes who were visitors, because
21 there was no visitors allowed. And we were
22 now able to test people twice a week, staff
23 twice a week in the nursing homes. And yet
24 the disease was still going to the nursing
154
1 homes because it was in the community. When
2 it's in the community, it's in the nursing
3 homes. They tie together.
4 So this ties back to your first
5 question was July to February. So what was
6 the difference? What we found was when we
7 looked at the numbers and the data, once
8 again, when you put all the numbers in there,
9 increased spread in the community, increased
10 cases in the nursing homes.
11 And if you put New York aside for a
12 minute and you just say, Okay, let's just put
13 our state --
14 CHAIRWOMAN KRUEGER: Doctor,
15 Dr. Zucker --
16 COMMISSIONER ZUCKER: Yeah. Oh, did I
17 run out of time?
18 CHAIRWOMAN KRUEGER: Because
19 unfortunately you all have gone way beyond
20 time.
21 COMMISSIONER ZUCKER: Okay, sorry.
22 CHAIRWOMAN KRUEGER: And I suspect we
23 have 40 more people who have questions, I
24 think, so I suspect you will be asked
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1 variations on Mr. Ortt's question and you can
2 start with, you know, and after May 10th. So
3 we'll all remember up till May 10th and then
4 after May 10th.
5 COMMISSIONER ZUCKER: Okay.
6 CHAIRWOMAN KRUEGER: And so I'm now
7 going to hand it over to the Assembly.
8 CHAIRWOMAN WEINSTEIN: And I think
9 there will be continued questions on this
10 subject.
11 We go to our chair of the Health
12 Committee, Assemblyman Gottfried. Ten
13 minutes, please.
14 ASSEMBLYMAN GOTTFRIED: Yes.
15 Good morning, Commissioner.
16 COMMISSIONER ZUCKER: Good morning.
17 ASSEMBLYMAN GOTTFRIED: Good to see
18 you. A few questions -- not surprisingly,
19 starting on nursing homes.
20 We've all -- lots of people have been
21 discovering that there are enormous problems
22 in our nursing homes. COVID may have brought
23 them to light and made them worse, but a lot
24 of us know those problems have been there for
156
1 many, many, many years.
2 Considering all the attention on this
3 issue, considering all the problems in our
4 nursing homes that everyone is now aware of,
5 you know, the Governor's budget wipes out
6 funding for a small organization called the
7 Long Term Care Community Coalition, which I
8 always say is New York's leading watchdog and
9 advocate on behalf of nursing home residents
10 and their families, although unfortunately to
11 a large extent they are practically our only
12 advocate and watchdog.
13 Why in this environment would the
14 Governor propose to zero out the state's
15 funding for that program?
16 COMMISSIONER ZUCKER: As I
17 mentioned -- thank you for the question. As
18 I mentioned in my opening remarks, the
19 Governor has said that the issue of nursing
20 home reform is one of the critical factors
21 and he won't sign a budget unless three areas
22 are addressed, and one of those is the issue
23 of making sure we hold bad actors
24 accountable. Another one is the issue of
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1 making sure that patient care over profit --
2 (Overtalk.)
3 ASSEMBLYMAN GOTTFRIED: We've got very
4 limited time. Could you answer the question?
5 COMMISSIONER ZUCKER: Well, the issue
6 is that we will address these issues of
7 nursing home reform. And there are many
8 advocates who work on behalf of nursing
9 homes, and I have spoken with many of them
10 regarding the budget.
11 The answer is that if the needs of
12 making sure nursing homes are going to be
13 met -- that is a primary focus of the
14 Governor's on those three areas, the two I
15 mentioned plus increased transparency. So I
16 can't speak to one specific group, but I do
17 know --
18 ASSEMBLYMAN GOTTFRIED: I'll bet
19 that -- I'll bet that if all the advocates
20 that you've talked to -- I'll bet not a
21 single one of them likes the idea or
22 expressed any support to you for zeroing out
23 the Long Term Care Community Coalition.
24 But let's move on. I was interested
158
1 in what you said about wanting to prioritize
2 care over profit, and I certainly agree with
3 that. What would be your reaction -- and if
4 you can't say so right now, maybe think about
5 it and send me an email in a couple of
6 days -- to capping the number of for-profit
7 nursing homes in New York, granting no new
8 licenses for for-profit nursing homes, and no
9 increase in the number of beds for our
10 existing for-profit nursing homes? They've
11 gone from being about one-third of the number
12 of beds to now being about two-thirds.
13 COMMISSIONER ZUCKER: Well,
14 Assemblyman, I hear you and I think that we
15 need to address that. I'm happy to send you
16 an email about it.
17 But I do want to say that -- and I
18 have -- long before this pandemic, I have
19 worked extremely hard at the issue of dealing
20 with the geriatric population, and nursing
21 homes obviously usually are those who are
22 primarily -- the residents are of that age.
23 And this was one of the issues to address,
24 the for-profit versus the not-for-profit
159
1 nursing homes.
2 So I'd be happy to have that
3 conversation and discuss it further with you,
4 to make sure that the care is provided to all
5 those residents. Thank you.
6 ASSEMBLYMAN GOTTFRIED: Okay. I'd
7 like to talk about the recently issued
8 results of your -- of the department's
9 request for -- the RFP for fiscal
10 intermediaries in the consumer-directed
11 program. And I would just suggest to people,
12 if you're not familiar with Big Julie's Dice,
13 after I'm done speaking you can Google that.
14 Because a lot of long-experienced,
15 extraordinarily highly regarded fiscal
16 intermediaries have been just shut out of the
17 program as a result of this RFP process.
18 They've been given no explanation as to in
19 what way they were deficient, they've just
20 been told, Oh, you didn't score high enough,
21 and No, we can't tell you or we won't tell
22 you in what way you were deficient.
23 You know, the last time I think the
24 department did something like this, it was
160
1 with the medical marijuana program where you
2 gave out five licenses and Applicants 6
3 through 10 complained that no one would tell
4 them why they didn't get a license and they
5 sued. And rather than respond to the
6 lawsuit, the department said, Oh, okay, we'll
7 give licenses to Nos. 6 through 10.
8 What can we do about getting some
9 justice here, finding out was there a basis
10 for justifying denying fiscal intermediary
11 licenses to some of these really very
12 important, longstanding, high-quality
13 programs?
14 MEDICAID DIRECTOR FRESCATORE: So,
15 Dr. Zucker, this is Donna. I'm happy to
16 answer that question.
17 Hello, Assemblyman Gottfried. Thank
18 you for that question.
19 So as you know, in February the
20 department, as a result of a competitive
21 process, selected 68 contractors. And
22 following a very successful model that we
23 used, for example, with our navigators --
24 which I think, Assemblyman, you're very
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1 familiar with and supportive of -- we gave
2 organizations the option to have
3 collaborating partners.
4 And so many of these 68 organizations
5 came in with community organizations, local
6 organizations that had experience as well.
7 And they partnered with them. It's efficient
8 because you don't have every organization
9 contracting with someone to do payroll, but
10 at the same time you have a local presence of
11 organizations with experience.
12 We're committed to having an open
13 process. For those weren't awarded, we've
14 extended debriefing rights in the initial
15 letters. Our first step -- and perhaps we
16 need to make this more clear that there's a
17 number of steps here that we don't want to be
18 barriers, it's just, quite honestly, because
19 of the volume of applications.
20 So we first told nonsuccessful
21 offerers what their score was, how they
22 ranked. Many have come back to us, asked for
23 a more detailed debriefing where we will talk
24 to them, probably virtually or, if they
162
1 prefer, perhaps in writing with a detail of
2 where their offer was either particularly
3 strong or not as strong, and the weaknesses
4 in their proposal. And that's consistent
5 with what we do in competitive procurements
6 under the State Finance Law.
7 ASSEMBLYMAN GOTTFRIED: So you'll
8 disclose all that information?
9 MEDICAID DIRECTOR FRESCATORE: We will
10 disclose where an offerer's proposal scored
11 well and where it -- where we believed there
12 were weaknesses in the proposal. That is our
13 intent. Of course, this process has actually
14 just started and there's --
15 ASSEMBLYMAN GOTTFRIED: Yeah, okay.
16 Can you -- can you send that information to
17 me?
18 MEDICAID DIRECTOR FRESCATORE: Yes, we
19 will do that. We will send you a description
20 of the process that will be followed, as well
21 as any, you know, documents.
22 ASSEMBLYMAN GOTTFRIED: No. No, I
23 want the data.
24 MEDICAID DIRECTOR FRESCATORE: Well, I
163
1 will go back and talk to folks about the
2 detailed data. I can't make that commitment
3 right now; it is a competitive process. But
4 I will certainly ask those questions of our
5 experts.
6 ASSEMBLYMAN GOTTFRIED: Okay.
7 Another question, the 1 percent
8 across-the-board Medicaid cut. You know,
9 it's kind of like the -- I forget the French
10 author who said "The law in its infinite
11 majesty prohibits the rich and poor alike
12 from sleeping under the bridge." If you cut
13 1 percent of Mount Sinai's Medicaid allotment
14 and 1 percent of, say, Elmhurst's Medicaid
15 allotment, that might sound fair to somebody
16 who doesn't know anything about our
17 hospitals, but it obviously is not.
18 What is the justification for that
19 kind of basis of cut? And how will that cut
20 affect safety net providers?
21 MEDICAID DIRECTOR FRESCATORE: So
22 the -- as you know, in the past there have
23 been across-the-board cuts of providers --
24 with some exclusions, like the behavioral
164
1 health providers licensed under Article 31 or
2 providers licensed under Article 32, which we
3 would follow as well -- that are a standard
4 percentage. So that has been done in the
5 past.
6 You know, those are difficult choices
7 and decisions made in the context of the
8 state's revenue picture.
9 I would point out, though, at the same
10 time that there are 1 percent
11 across-the-board cuts, there's also a
12 substantial investment in the fiscal year '22
13 budget, over $900 million for financially
14 distressed hospitals through a series of
15 programs that I know you're familiar with
16 that we know as VAP and VAPAP and VBP QIP
17 that remain funded in the '22 budget.
18 ASSEMBLYMAN GOTTFRIED: And many that
19 are wiped out in the budget.
20 MEDICAID DIRECTOR FRESCATORE: Well, I
21 think the -- the only -- I think there's one
22 action in the closeout of the fiscal year '21
23 budget that is a reduction in the VAPAP
24 program as we know it for funding that is not
165
1 needed, based on the regular meetings and
2 discussions that my counterparts at the
3 department have with financially distressed
4 hospitals.
5 Other than that, I believe all the
6 funding is in place for those programs --
7 again, over $900 million in fiscal year '22.
8 CHAIRWOMAN WEINSTEIN: Thank --
9 ASSEMBLYMAN GOTTFRIED: And
10 eliminating the Indigent Care Pool for --
11 CHAIRWOMAN WEINSTEIN: Thank you.
12 ASSEMBLYMAN GOTTFRIED: -- publics.
13 MEDICAID DIRECTOR FRESCATORE: Yeah,
14 the Indigent Care Pool proposal in the
15 Executive Budget, as you know, doesn't --
16 still would permit the handful of hospitals
17 that receive the public distribution to fund
18 the nonfederal share with local money. So
19 those DSH dollars would still be available,
20 but it would be federal and local funding.
21 CHAIRWOMAN WEINSTEIN: Thank you.
22 We'll move on to the Senate.
23 I just remind the director and the
24 commissioner just that if there are
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1 follow-ups in writing sent to a particular
2 questioner, if they could also be sent to
3 Senator Krueger and myself so that we can
4 distribute to all of the members on the call.
5 MEDICAID DIRECTOR FRESCATORE:
6 Certainly.
7 CHAIRWOMAN WEINSTEIN: Now to the
8 Senate.
9 CHAIRWOMAN KRUEGER: I'm afraid we're
10 going to find ourselves going over on every
11 one. Although I have to say the questions
12 that are being asked are taking me off the
13 list because they're covering my questions.
14 But let's now go to our Health ranker,
15 Senator Gallivan, five minutes.
16 Are you there, Senator Gallivan?
17 SENATOR GALLIVAN: Thank you,
18 Madam Chair. And good -- am I unmuted now?
19 CHAIRWOMAN KRUEGER: You are. You're
20 having a little rush. If you take your
21 picture off, your voice might sound better.
22 SENATOR GALLIVAN: All right, I'll try
23 to do that.
24 CHAIRWOMAN KRUEGER: And let's start
167
1 his five again. Good.
2 SENATOR GALLIVAN: You're able to hear
3 me?
4 CHAIRWOMAN KRUEGER: Yes.
5 SENATOR GALLIVAN: Okay. Thank you,
6 Madam Chair, and I apologize for the
7 technical difficulties in the coverage on my
8 end. I know it's been said before, I can't
9 help but note the concern about ensuring that
10 we have broadband coverage everywhere,
11 including many of the rural areas
12 participating here today.
13 Because of time, I will try to be very
14 efficient with my questions. I'd be remiss
15 if I didn't say, Commissioner, I share the
16 concern of many of my colleagues and many of
17 the citizens of the state when it comes to
18 the public trust and the concern about the
19 proper or improper reporting of nursing home
20 deaths, however that came about. Again, as
21 noted before -- not by you, but troubling
22 nonetheless -- that we in the Legislature
23 multiple times had --
24 (Audio dropped.)
168
1 CHAIRWOMAN KRUEGER: We lost you.
2 COMMISSIONER ZUCKER: We lost you,
3 yeah.
4 CHAIRWOMAN KRUEGER: We've lost you,
5 Senator Gallivan. Hmm. I'm sorry, we're
6 going to let it go on to the Assembly.
7 But when you are back and think you
8 are back, we will put you right back on.
9 Assembly.
10 CHAIRWOMAN WEINSTEIN: Yes, so we go
11 to Assemblyman Cahill.
12 ASSEMBLYMAN CAHILL: Thank you,
13 Chairs. And thank you, Dr. Zucker.
14 CHAIRWOMAN WEINSTEIN: Excuse me.
15 He's a chair in terms of the clock, please.
16 Thank you.
17 ASSEMBLYMAN CAHILL: Thank you so
18 much. Believe it or not, I'll try not to use
19 that time, Madam Chair.
20 Dr. Zucker, I have a couple of
21 questions for you just generally about your
22 testimony. And just reflecting on our last
23 experience together last August and the
24 answers you gave and the follow-up to that
169
1 that, quite honestly -- we got a very
2 extensive response a few weeks ago, but we
3 were waiting for a long time.
4 So please forgive me for this, and
5 accept it in the spirit in which the question
6 is being asked. To what specific level is
7 your testimony today directed by, prepared
8 by, influenced by, limited or otherwise
9 reflecting direction from the Office of the
10 Governor, as opposed to that which you were
11 prepared to give us here today on your own?
12 COMMISSIONER ZUCKER: This is all my
13 testimony and prepared by me.
14 There's a little bit of an echo --
15 ASSEMBLYMAN CAHILL: I apologize for
16 that. We have a lot of technical issues
17 today.
18 So my next question is, there was a
19 lag of time between our last round of
20 questions to you in our August hearing and
21 your response. But were you directed by the
22 Office of the Governor not to prepare that
23 response, or was that a decision that you
24 also made in your own office?
170
1 COMMISSIONER ZUCKER: Well, as the
2 Governor said last week, right, he said that
3 there was a void that was created, right, and
4 that the information should have been --
5 should have been released sooner. And he
6 regrets that, and I share that feeling.
7 And so at this point, you know, I feel
8 that we should be able to move forward and
9 continue the conversation forward on that. I
10 mean, at that point in time when you asked me
11 in the autumn what was happening, I can tell
12 you that what was happening from our
13 perspective and my perspective was that there
14 was a pandemic which we continue to fight
15 today, and there were many issues that were
16 on my desk to move forward, including the
17 issues of the school openings and, you
18 know -- and we know the list. School
19 openings, the issues of getting a vaccine
20 plan in place, the increased testing on the
21 holidays. And also the other issue was the
22 fact that our numbers were starting to tick
23 back up in the autumn, and I was a little
24 concerned about that because of what they
171
1 always say, there's a second wave. And we
2 have seen increasing cases as well.
3 ASSEMBLYMAN CAHILL: Doctor, the
4 nature of my question is because of my
5 experience with you personally, my experience
6 with your office -- both with you and your
7 predecessors -- is that of state agencies,
8 the Department of Health has often been one
9 of the more responsive agencies to inquiries
10 by the State Legislature. And I found it
11 unusual that we had to wait as long as we did
12 to get answers to what were essentially basic
13 and oftentimes statistical questions. But I
14 thank you for your response.
15 I also -- I know you're going to be
16 facing a lot of grilling today. I want to
17 thank you for being the head doctor in
18 New York State. This is a monumental task.
19 I would not wish it on my worst enemy. And I
20 know you didn't sign up for this when you
21 agreed to be health commissioner, but in the
22 back of your mind you knew you might have to
23 deal with it. And whether we want to
24 second-guess you or not, I want to thank you
172
1 for your service in that regard.
2 If you don't mind -- go ahead.
3 COMMISSIONER ZUCKER: I appreciate
4 those words very much, I really do. Thank
5 you.
6 ASSEMBLYMAN CAHILL: I'd like to pivot
7 to a matter that is of equal concern to me.
8 I know it sounds difficult to have something
9 of equal concern to COVID, but this is a
10 crisis in New York State, and that is the
11 crisis of mental health. The crisis of
12 addiction, the crisis of overdose, the crisis
13 of the loss of the infrastructure of a mental
14 health service system in this state, and in
15 particular in the communities I represent
16 here in the Ulster County area.
17 I'm making that point because Dutchess
18 County isn't as bad as Ulster County. We got
19 a double hit in the last 10 years when the
20 State of New York and Rockland Psych pulled
21 out of our county, and then our previous
22 county executive, now a state administrator
23 in a different agency, made a decision to
24 dismantle our local mental health system and
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1 contract it out to an adjoining county.
2 Then we had another blow -- and you're
3 aware of this, Dr. Zucker -- when the
4 Behavioral Health Unit of Benedictine
5 Hospital, now Health Alliance of the
6 Hudson Valley, was shut down in part by your
7 direction and your request and the request to
8 the State of New York to address the
9 potential for a COVID overflow. That
10 overflow never occurred. Those services have
11 been removed from this county. People have
12 been placed in extremely difficult positions
13 with regard to their mental health and
14 stability. This pivotal, important part of
15 our community -- and I'm sure it reflects
16 communities across the State of New York --
17 is gone.
18 The Health Alliance of the
19 Hudson Valley and Westchester Medical Center,
20 their managing partner, have indicated: Oh,
21 no, the services are available elsewhere.
22 But I can assure you, Doctor, those services
23 are not the same. They are not of the same
24 quality, they do not meet the same needs.
174
1 You were very kind in your response,
2 your very detailed response. You dedicated
3 about a page and a half to this question, and
4 I appreciate that. In there you discussed
5 the Certificate of Need process. And my
6 question to you is when, in the middle of
7 this pandemic emergency, will the Department
8 of Health once again enforce existing
9 Certificates of Need?
10 And I'm not talking now about changing
11 that process, but addressing the fact that
12 there is an entity in our community, and
13 probably communities across the state, that
14 are not adhering to their Certificate of
15 Need, not adhering to their licensure, and it
16 appears to me that there is no enforcement.
17 So with that, Doctor, if you can
18 reflect on that for a few minutes. And maybe
19 if we have a couple of minutes I'll raise a
20 couple of other issues.
21 COMMISSIONER ZUCKER: Sure. These are
22 excellent points of concern to me. Let me
23 start with the Certificate of Need and then
24 I'll go back to the issues of the mental
175
1 health issues, because they tie together.
2 One of the biggest challenges of this
3 pandemic is the ability to not only tackle
4 all the issues of the pandemic but the vast
5 array of things that the department does.
6 And part of that is the issue of Certificate
7 of Need. And I agree with you, it's not so
8 much about new changing ownerships or
9 anything of that nature, but just the overall
10 certificate, we need to make sure that we're
11 meeting that.
12 We are trying to get back into the
13 groove of making sure that some of those
14 things that we were doing can be expedited.
15 The truth is that many -- the vast majority
16 of the department has been -- their energies
17 have been directed towards this, and many
18 people in the department have actually been
19 doing double, triple jobs just in order to
20 make sure that we move forward on this
21 pandemic, working literally day and night
22 every single day of the week. And we can --
23 that's a longer conversation.
24 However, I do agree with you about the
176
1 issues of mental health, and we need to
2 tackle this. Long before the pandemic,
3 Commissioner Sullivan and I had this
4 conversation about the issues of mental
5 health.
6 And when I first came into this role,
7 someone said to me, You should pick two
8 things that are really important -- this was
9 seven years ago -- that you want to focus on.
10 You can't focus on everything. And the two
11 that I actually picked was -- one was the
12 aging population in New York, and the other
13 one was the issue of mental health. Because
14 I believe those are two of the biggest
15 challenges.
16 And the reason people haven't tackled
17 them the way we should tackle them is because
18 they are so complex, so we wanted to move
19 forward on that. And now we sit here with a
20 pandemic where these issues are paramount.
21 And not only are they paramount in separate
22 buckets, but they also overlap.
23 I sit there and I think about all the
24 individuals who are lonely, elderly, lonely,
177
1 by themselves and all the mental health
2 issues at that age, and the kids who are out
3 of school and the impact of those kids being
4 home because of the pandemic. And just
5 our -- us as a social fabric has been
6 compromised, because we are a society that
7 works together, and when you isolate people
8 it becomes very difficult.
9 So we are tackling that. I will
10 continue to work with the Office of
11 Mental Health on that issue.
12 And on the issue of the Certificate of
13 Need, we have the Public Health and Health
14 Planning Council, which goes through the
15 process of Certificates of Need. And I
16 usually look at each one of those, and I felt
17 like my energies need to directed
18 elsewhere -- but we will move forward on
19 that.
20 With regards to the overall situation
21 with making sure hospital care can be there,
22 we do have the surge-and-flex system which
23 the Governor put into place to help for care.
24 But this is the complexities of dealing with
178
1 the pandemic. But I assure you I wrote it
2 down, I assure you I will continue to push
3 forward on this.
4 ASSEMBLYMAN CAHILL: Thanks, Doctor.
5 I want to catch up, with my last
6 minute here, about two things. And let's --
7 surprising, surprising, I want to talk about
8 something in the budget. The federal
9 government has provided some enhanced -- you
10 don't have to worry about notes. The federal
11 government has provided some enhanced
12 reimbursement for behavioral health and
13 mental health services that results in a
14 significant increase in the Medicaid and
15 possibly the Medicare payments for those
16 services.
17 Will you be recommending that after
18 the federal money goes away that the State of
19 New York pick up that enhanced funding level
20 so that we can begin, once again, to rebuild
21 mental health services?
22 COMMISSIONER ZUCKER: Donna, do you
23 want to touch that?
24 ASSEMBLYMAN CAHILL: I do need --
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1 MEDICAID DIRECTOR FRESCATORE: Hi,
2 Assemblyman Cahill. I hope you can hear me.
3 You know, I'd be happy to get back to
4 you on that question at this point, rather
5 than to speculate on that. So I'm happy to
6 talk directly to your office or to talk
7 directly to your staff about that and your
8 thoughts and concerns.
9 ASSEMBLYMAN CAHILL: I appreciate
10 that. Thank you very much.
11 And panelists, let me just close by
12 saying this, that what we have witnessed over
13 the past several weeks, particularly between
14 the Executive and the legislative branch of
15 government unfortunately is merely an example
16 of what the attitude is of most executive
17 branch fellows -- people toward the
18 Legislature.
19 And I hope that today we can begin to
20 signal a change in that. And once again, on
21 behalf of the many people who have recovered,
22 thank you for your service on behalf of the
23 many people who are still being cared for in
24 New York State. I very much appreciate it,
180
1 and I do hope that you take the questions and
2 comments of my colleagues in the spirit that
3 they are intended, for the best of all people
4 in New York.
5 Thank you very much.
6 COMMISSIONER ZUCKER: Thank you.
7 CHAIRWOMAN WEINSTEIN: Thank you.
8 Back to the Senate now.
9 CHAIRWOMAN KRUEGER: Thank you.
10 Do we have Senator Gallivan back?
11 Let's see.
12 SENATOR GALLIVAN: I am here. Are you
13 able to hear me okay?
14 CHAIRWOMAN KRUEGER: Yes, you seem
15 much clearer. So please just --
16 (Overtalk.)
17 SENATOR GALLIVAN: And I will -- I
18 will take your advice and refrain from my
19 photo -- or I'll leave my photo up, but
20 there's a real voice behind that.
21 CHAIRWOMAN KRUEGER: Yes, there is.
22 SENATOR GALLIVAN: Yes. So thanks
23 for -- thanks for putting up with my
24 technical difficulties. My apologies,
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1 Commissioner and Director. Thank you for
2 being here.
3 I know that many of my colleagues are
4 going to discuss the nursing home situation
5 in great detail. I'd be remiss if I didn't
6 say that I too share the concern about the
7 way that nursing home deaths were reported or
8 not reported, shall I say, despite the many
9 questions of the public and many questions of
10 the Legislature since last year.
11 I do recognize, though, that all of
12 that was -- was not you, but I share the
13 concern. And I would certainly hope as we
14 move forward that the executive branch can
15 work and communicate much better than they
16 have through this pandemic on the
17 pandemic-related issues with the Legislature.
18 Having said that, though, I want to
19 point in the Governor's budget where the
20 Governor has proposed a number of changes to
21 nursing homes. And we know the
22 administration has been pointing their
23 fingers, to a certain extent, at nursing
24 homes and their staff for the lives lost and
182
1 other problems. Included in these proposals
2 are increased penalties and heightened
3 enforcement mechanisms.
4 The concern that I would have and the
5 question that I have is given the state of
6 nursing homes now, is the Department of
7 Health equipped to provide proper oversight
8 of nursing homes?
9 COMMISSIONER ZUCKER: So that is a
10 great question. I actually go back to the
11 issue of our inspections and our on-site
12 surveys during the pandemic.
13 So we had over 2400 nursing home
14 on-site surveys, and we did over a thousand
15 enforcements and issued about $1.3 million in
16 fines.
17 I can tell you from my experience
18 during this pandemic of the conversations
19 that I've had with nursing home
20 administrators and with my team and the
21 immediate visits that our team did whenever
22 there was a question that occurred regarding
23 a nursing home and the ability to deliver
24 care.
183
1 Obviously, as the Governor's budget
2 has put forth -- and it mentions about these
3 different areas that we need to address -- we
4 will end up revving up and having more
5 individuals working on these areas. But we
6 have been able to address the concerns that
7 have been raised over the course of the past
8 year.
9 But like any other challenge when you
10 have a pandemic or anything else, it
11 uncovered all of the things that need to
12 improve. And I believe that this will show
13 that there are things that we need to improve
14 both internally and externally to give better
15 care to those who are residents of nursing
16 homes or any other adult-care facilities.
17 SENATOR GALLIVAN: So the financial
18 penalties --
19 COMMISSIONER ZUCKER: And the money --
20 yeah, sorry, go ahead.
21 SENATOR GALLIVAN: The financial
22 penalties can be -- are very steep. And the
23 nursing homes, given the challenges they face
24 and the rate cuts over the years, are really
184
1 financially challenged.
2 I'm concerned that -- I'm concerned
3 that this will financially devastate some of
4 these nursing homes, especially for some
5 minor violations. And the concern is --
6 COMMISSIONER ZUCKER: Right.
7 SENATOR GALLIVAN: -- under all these
8 changes, how can we be assured that this is
9 actually going to improve the quality of care
10 for our seniors?
11 COMMISSIONER ZUCKER: So that's a
12 great question. And the issue here is you
13 don't want to have a violation of something
14 which is minor end up compromising the
15 nursing home facility and what we're doing to
16 help the residents there.
17 But if you have someone who's a bad
18 actor who really does not operate a nursing
19 home in the appropriate way, then we need to
20 change it. It's in the best interests of the
21 nursing home residents, it's in the best
22 interests of healthcare in general and our
23 society in general.
24 So that's what we need to move
185
1 towards. And the Governor has mentioned that
2 there should be, you know, 70 percent for
3 patient-facing services and 40 percent for
4 staffing -- I mean, all the numbers are out
5 there in his budget proposal. But we will
6 address this, and we will tackle it and we
7 will make sure that we don't put a situation
8 in place that will only create a problem for
9 those who are residents or for us as a
10 society to be sure that those who need this
11 care will get it. So I'm -- I'm {inaudible}
12 for it.
13 SENATOR GALLIVAN: If I may -- if I
14 may, Commissioner, thank you.
15 COMMISSIONER ZUCKER: Yeah, sure.
16 SENATOR GALLIVAN: I look forward to
17 discussing many, many more details, because
18 of the time.
19 To switch gears very quickly, I still
20 think it is pandemic-related. We have a
21 pandemic now that attacks the body's
22 respiratory system. How on earth can we be
23 talking about legally smoking marijuana while
24 we've got this pandemic here? And there's no
186
1 science out there that says that smoking
2 marijuana is okay for a person's respiratory
3 system. How can we ensure the safety of the
4 public?
5 COMMISSIONER ZUCKER: So I -- there
6 are studies out there that we have mentioned
7 when we were talking about the issue of
8 regulated marijuana, about not having this
9 given to those who are young and to avoid the
10 use of marijuana for those who are youth.
11 The issue also -- and I will turn more
12 towards the medical side of this, because we
13 have run and I've run the Medical Marijuana
14 Program which has helped, you know, tens of
15 thousands of people in the state, and I've
16 received letters from those who actually have
17 been able to function and maintain their jobs
18 and work and have stores because of the
19 marijuana -- the Medical Marijuana Program.
20 We looked at it, so I am a strong supporter
21 of the Medical Marijuana Program.
22 And I understand the issues of the
23 respiratory system and to make sure that
24 inhaling -- inhaling substances are not
187
1 detrimental to them.
2 So -- but I do turn that back towards
3 the team, who are the Office of Cannabis
4 Management, which are looking at a lot of
5 those issues. And I am sure they will sit
6 and speak to the medical experts as well
7 about this.
8 SENATOR GALLIVAN: Thank you,
9 Commissioner. My time is up, but thank you.
10 CHAIRWOMAN WEINSTEIN: We go to, in
11 the Assembly, Assemblyman Ra now for five
12 minutes, as ranker.
13 ASSEMBLYMAN RA: Thank you, Chair.
14 Commissioner, thank you for being
15 here.
16 I just want to start quickly by saying
17 I hope that any answers that are outstanding
18 after this hearing that need to be provided
19 are done so in a far more timely manner than
20 was done after last August's hearing,
21 particularly with regard to nursing homes.
22 If we are to be asked to consider nursing
23 home reforms in this budget, we need all the
24 information.
188
1 So I do want to go back, though, to
2 some of your conversation with Leader Ortt.
3 And I know you said you don't know
4 Mr. Hammond from the Empire Center, but I
5 would assume you're familiar with him or
6 familiar with his work, are you not?
7 COMMISSIONER ZUCKER: Actually, I will
8 tell you that I glanced at the paper he put
9 out because it was -- and I responded to
10 that, and it was during the preparation for
11 this budget hearing.
12 I know that he was a journalist and
13 now he's working in a think tank. And so
14 that's the extent of what I can say about
15 Bill Hammond.
16 ASSEMBLYMAN RA: Well, and obviously
17 we all know he was the person who made the
18 FOIL request that ultimately caused the data
19 to be released pursuant to a court order a
20 couple of weeks ago.
21 COMMISSIONER ZUCKER: Well, the data,
22 as I said, was going to be provided before
23 the hearing, and the numbers are out.
24 ASSEMBLYMAN RA: But it was, I mean,
189
1 provided the day that -- by the end of the
2 day it had to be, pursuant to a court order.
3 I think it's important that we make that
4 clear.
5 So just going back to -- you know,
6 we're obviously going to agree to disagree on
7 some of the pieces of the March 25th order.
8 But I think when we have this conversation,
9 one of the things that I think gets lost in
10 translation is really what I think the
11 question is. You know, there's -- the report
12 you have about 98 percent of the nursing
13 homes having COVID prior to the order. But
14 the question really, to me, is whether the
15 order made the situation worse by
16 reintroducing these patients and whether the
17 piece of it that prohibited the nursing homes
18 from testing these patients before they came
19 in made the matter worse.
20 Mr. Hammond's report, which you said
21 you glanced at, but I would encourage you to
22 look at more in depth, seems to show a fairly
23 solid evidence that there was statistically
24 significant correlation between the order and
190
1 an increase in mortality within nursing
2 homes. And I have always found his work,
3 this one included, to be based on data and
4 well-cited.
5 COMMISSIONER ZUCKER: Well, I believe
6 that if he had looked at what we showed in
7 July, on the July 6th presentation that I did
8 of the fact that the nursing home deaths were
9 going down when the admissions were going up,
10 which -- and we look at the epidemiology of
11 it, of the period of time, of the incubation
12 period, he would realize that that is not the
13 case.
14 You know, we keep going back to this
15 issue about the nursing home March 25th
16 document. And it is -- honestly, it's very
17 troubling because, you know, as a scientist,
18 as somebody who looks at things, people
19 forget about the actual way this disease ends
20 up spreading and what happens and how long
21 one is contagious and what the risk they are
22 putting to others.
23 And the fact of the matter is that --
24 and I want to be respectful of your time, but
191
1 the fact of the matter is that there is a
2 window of time before anyone actually showing
3 symptoms when you're already contagious, and
4 that is for 48 hours.
5 Then you have a window of time -- and
6 think about the nursing home residents, and
7 I've mentioned this before. When someone is
8 elderly and they end up in -- get sick and
9 they're in the nursing home, you don't -- the
10 first day when they wake up and are not
11 feeling well, you don't take that 93-year-old
12 out in the snow and say, I'm going to rush
13 him to the hospital. A couple of days go by.
14 So now you're four days into it.
15 They're in the hospital for -- they don't get
16 into the hospital one day and then they go
17 out the next day. We know from the report,
18 from the data we showed, and I stand by this
19 report -- I stood by it in July, I stand by
20 it now -- that we know that it's in the
21 community, that it is going to end up in the
22 facility. And we know what ended up
23 happening, and that was what we had in the
24 report.
192
1 I mentioned in my opening remarks this
2 was tragic, but it is true. And just the
3 facts are -- I'm sorry?
4 ASSEMBLYMAN RA: I'm going to run out
5 of time. I do want to quickly -- just to the
6 budget presentation. If you can elaborate on
7 either now or provide further information,
8 there's this proposal for the independent
9 quality monitors. And if you can provide
10 further information as to what the department
11 saw within nursing homes during this pandemic
12 that, you know, basically that proposal spurs
13 from, I'd appreciate it.
14 COMMISSIONER ZUCKER: That goes back
15 to the on-site surveys and the enforcements.
16 But we'll get that to you.
17 ASSEMBLYMAN RA: Thank you.
18 CHAIRWOMAN KRUEGER: Thank you.
19 I believe we have Senator May next.
20 SENATOR MAY: Great. Thank you so
21 much.
22 And hi, Commissioner.
23 SENATOR RIVERA: I'm sorry, I would
24 point out that Senator May is a chair. She
193
1 only got three minutes.
2 CHAIRWOMAN KRUEGER: She's not a chair
3 of today's hearing.
4 SENATOR RIVERA: Oh, apologies.
5 CHAIRWOMAN KRUEGER: She is a chair.
6 She's an excellent chair of the Aging
7 Committee, and she got her 10 minutes at the
8 Aging Hearing. Sorry, Senator Rivera.
9 SENATOR MAY: All right, I have my
10 three minutes now.
11 So, Commissioner, I share my
12 colleagues' concerns about obviously the
13 reporting of nursing home deaths. But just
14 jumping off of your comments about how the
15 virus was brought into nursing facilities by
16 the staff, we heard in our hearing the same
17 staffers, working multiple jobs to make ends
18 meet -- many of them live near the poverty
19 level and haven't been able to protect
20 themselves from the virus. Some nursing
21 homes are understaffed, were terribly
22 understaffed in the spring and so they didn't
23 have time to change their PPE properly.
24 And so a lot of this comes down to how
194
1 we pay for healthcare in this state. And I'm
2 just wondering what in your budget, because I
3 can't find it, actually raises wages for our
4 healthcare workers so they don't have to
5 moonlight and so we can attract more people
6 into this field.
7 COMMISSIONER ZUCKER: Well, I hear you
8 on that, and I think that is a critical point
9 just in general, how do you get more people
10 in the field when there is a way for them to
11 work in a different area and with a similar
12 amount of a salary, which is not as hard as
13 working for those -- in a nursing home for
14 residents who require a lot of attention.
15 But the issue of staffing is part of
16 the overall goal when the Governor mentions
17 patient care over profit. And that money
18 would have gone to profit will go to patient
19 care. And part of patient care is providing
20 the appropriate staffing, and part of that is
21 figuring out how to develop a system where a
22 person doesn't end up having to hold down
23 three jobs in an effort to make ends meet.
24 And whether that involves also increasing the
195
1 salary for those who work in these facilities
2 so that you can get more people there and
3 also have those who are there feel
4 compensated appropriately. So this is all
5 part of the whole process of --
6 SENATOR MAY: Let me jump in and say
7 in the budget HMA Part E cuts $22.5 million
8 from worker recruitment and retention
9 funding, including personal care, home health
10 aides -- who are critical to keeping people
11 out of nursing homes if they don't want to be
12 in nursing homes -- and other long-term-care
13 workers.
14 And I'm wondering how this conceivably
15 helps keep older New Yorkers healthy and
16 safe.
17 COMMISSIONER ZUCKER: So let me --
18 yes.
19 MEDICAID DIRECTOR FRESCATORE: So
20 Dr. Zucker, I'm --
21 COMMISSIONER ZUCKER: Donna.
22 MEDICAID DIRECTOR FRESCATORE: Hello,
23 Senator. Let me see if I can address your
24 question. Thank you.
196
1 The worker recruitment and retention
2 funding is in fact eliminated in the
3 Executive Budget or reduced in the Executive
4 Budget. I think it's important to keep in
5 mind that those funding -- those programs go
6 back, you know, several years ago now. I
7 think it's important to keep in mind that in
8 the interim the investment from Medicaid in
9 minimum wage has been -- it's projected in
10 '22 to be $3.9 billion.
11 So I think there's a number of moving
12 factors here yet appreciate, you know,
13 hearing your concern. And as Dr. Zucker
14 already said, that the Executive proposal
15 around requiring a certain percentage of
16 nursing home revenues to be directed to
17 paying staff, for staff costs, is an
18 important factor here as well.
19 SENATOR MAY: Okay. I'm out of time,
20 but I'll follow up with some other questions.
21 Thank you.
22 CHAIRWOMAN KRUEGER: Thank you.
23 Assembly.
24 CHAIRWOMAN WEINSTEIN: We go to
197
1 Assemblyman Schmitt for three minutes.
2 ASSEMBLYMAN SCHMITT: Thank you.
3 Commissioner, we need to get our kids
4 back to school. Will you be issuing updated
5 guidance so that the six-foot rule can be
6 modified for our local school districts who
7 are having difficulty with that?
8 COMMISSIONER ZUCKER: Right. We are
9 working -- I hear you, and we are working on
10 that to make sure that we can get all our
11 children back into the classrooms.
12 And regarding the six feet, one of the
13 federal guidelines was the CDC guidelines; I
14 know there's some discussion about
15 three feet, if there are barriers. And we
16 are working on that. And the team is working
17 on that actually this past week, but I've
18 been distracted by the budget hearings, but I
19 promise you we will get that done.
20 ASSEMBLYMAN SCHMITT: What's the
21 timeline that you would expect us to have an
22 answer?
23 COMMISSIONER ZUCKER: Well, hopefully
24 we'll -- let's -- I mean, schools -- you
198
1 know, we want to get these children back into
2 schools, so I hope we can get this done.
3 Today's Thursday; let's hope we can figure
4 out something next week. I can't commit to a
5 day, I hate to do that, but I want to focus
6 on that within the coming week.
7 ASSEMBLYMAN SCHMITT: Okay. So within
8 a week, then, our -- it will be public for a
9 school district to be able to --
10 COMMISSIONER ZUCKER: I don't -- I
11 hate putting a date down because, you know,
12 you never know, when you start working these
13 things through and then you find out, well,
14 CDC says this, but there's this other issue
15 that you hadn't considered.
16 But it is a high priority on my
17 agenda. So maybe after the hearing, you
18 know, I can regroup with you and then find
19 out what's the latest from my team and then
20 get back to you on a specific date. Does
21 that work?
22 ASSEMBLYMAN SCHMITT: I appreciate you
23 focusing on it. And certainly the quicker we
24 can get our students back safely, the better.
199
1 COMMISSIONER ZUCKER: I absolutely
2 agree. I absolutely agree.
3 ASSEMBLYMAN SCHMITT: My next question
4 is on vaccine distribution equity. And the
5 county executives I represent in Orange
6 County and Rockland County, the
7 Hudson Valley, have had concerns with their
8 role that they usually would play but how
9 that's changed.
10 In particular, Orange County and some
11 Hudson Valley counties have not had a fair
12 and equitable distribution when compared to
13 other counties in the statewide vaccine
14 number. Whether you count it by population,
15 infection rate, it doesn't seem to add up.
16 Can you explain how those decisions
17 are made and how we can either get more
18 distribution or how we can get a state
19 facility into Orange County or the
20 Hudson Valley where there is not a close one
21 right now?
22 COMMISSIONER ZUCKER: Sure. Sure. So
23 let me go through sort of the big picture and
24 then I'll get a little more granular on this.
200
1 So the big picture here is that it all
2 comes down to the supply. Right? So the
3 federal government tells us how much we get,
4 and then we get it out there. And we've
5 allocated now 4.5 million. We probably, by
6 the end of today or so, will be at 4 million
7 that have been administered, 89 percent of
8 first doses have been administered so far.
9 So that's the overarching picture.
10 Then we have our teams. We have a lot
11 of different places where they can get
12 vaccines. We have our state-run sites that
13 are out there.
14 ASSEMBLYMAN SCHMITT: Can we get one
15 in Orange County or closer?
16 COMMISSIONER ZUCKER: I will check and
17 see where there are, and we'll see -- we keep
18 increasing those sites in numbers.
19 But you've got to remember, if there's
20 no supply, then what do you do? Now, I
21 believe that what's going to happen with the
22 J&J -- well, today's Thursday. Tomorrow, on
23 Friday, is the EUA, the meeting within the
24 FDA about the Johnson & Johnson vaccine.
201
1 Once that gets approved, now you have another
2 influx into the pipeline of vaccine, and that
3 will move this forward and then there's more
4 supply and there's more delivery to places,
5 and I will address the issues of your
6 constituency as well.
7 ASSEMBLYMAN SCHMITT: Thank you,
8 Commissioner.
9 CHAIRWOMAN WEINSTEIN: We go to the
10 Senate.
11 CHAIRWOMAN KRUEGER: Thank you very
12 much. Our next Senator is Brad Hoylman.
13 SENATOR HOYLMAN: Thank you,
14 Madam Chair. Thank you, Commissioner.
15 I wanted to ask you about the B.1.526
16 variant that, as reported this morning, is
17 circulating widely throughout the city,
18 including my district in Lower Manhattan --
19 and specifically what steps we're taking.
20 Are you testing for it? This was a report
21 that came from Caltech.
22 And then finally I wanted to make a
23 quick pitch for hotel workers -- who come in
24 contact with travelers, of course, but unlike
202
1 flight attendants and airline workers and
2 other frontline staff such as grocery store
3 workers, are not eligible for the vaccine.
4 Are you looking at reexamining that?
5 And then finally I would ask,
6 Commissioner, in Manhattan I'm working with
7 your office on trying to get a Manhattan-only
8 site. We desperately need one. Other
9 boroughs have them. Javits is a wonderful
10 facility. I know it's partly about supply,
11 but it's also about getting a site online
12 that is dedicated to Manhattan residents so
13 when Johnson & Johnson and other vaccines are
14 available, we can be up and running quickly.
15 Thank you. If you can answer the
16 question.
17 COMMISSIONER ZUCKER: Sure, three
18 parts. I'm going to go to number two first,
19 because we are looking at the hotel workers,
20 and I can get you more information on that
21 offline to find out where we are on that.
22 Regarding part three, the
23 Manhattan-only site, I assume you're
24 referring back to the fact that we have a
203
1 Bronx site and what else we can do. And
2 Javits does have the ability to get more
3 people through if we had more supply.
4 I was down in Javits several times
5 now, and it is amazing how fast and how much
6 you can move the system and how many people
7 you can move through that system. So if we
8 had more supply, we could double, triple,
9 quadruple the number of people, if not more,
10 who can go through the system there.
11 SENATOR HOYLMAN: I think you know
12 that Manhattan residents are competing with
13 non-New York City residents for vaccine slots
14 there, and that's a problem for a lot of us
15 who are trying to manage seniors and others
16 who are having technology issues trying to
17 get an appointment.
18 COMMISSIONER ZUCKER: Right. So let
19 me look at that.
20 SENATOR HOYLMAN: Thank you.
21 COMMISSIONER ZUCKER: But I would
22 hope, like I said, if we could get that site
23 more supplies, we could get more through and
24 the competition won't be as much of a
204
1 concern.
2 Back to your B.1.526 variant. So that
3 one actually has a mutation in the S477N
4 spot, and that is the area which identifies
5 how easily the virus can get into a cell.
6 That's the same challenge that we have seen
7 with the South African variant and the
8 Brazilian variant.
9 So I heard about this as I was getting
10 ready for this hearing, and obviously we'll
11 look into it. And that came through the
12 GISAID data system, which is an international
13 system looking at variants that are out
14 there.
15 Now, we at Wadsworth are tracking and
16 monitoring the genome of samples that come
17 in, so we have now looked at, I mean, 6,000,
18 7,000 samples over the course of the
19 pandemic, and thousands, maybe 4,000 or so,
20 since late December when I asked them to rev
21 up the amount of testing.
22 So we are looking, we -- that's how
23 we've identified the U.K. variant as a -- two
24 South African variants, one that we
205
1 identified, one that was identified in
2 Connecticut but was in New York, and also
3 this other variant. So I will get back to
4 you. But we -- the state is on top of this
5 issue to make sure if we see anything that
6 changes, we're always concerned about it.
7 And this goes back to the issue of
8 just vaccines in general. The more people
9 that are vaccinated -- this is why I push and
10 I make my pitch for more supply from the
11 federal government. The more you have people
12 vaccinated, the more likely we will get to
13 enough immunity and the likelihood of
14 developing a mutation that will then take
15 hold in the society will drop.
16 So there's two reasons for increased
17 vaccinations, and I push hard and I push for
18 everyone to get vaccinated. But the main
19 thing is to get the supply, which goes back
20 to the first issue I raised. Thanks.
21 CHAIRWOMAN KRUEGER: Thank you.
22 Back to the Assembly.
23 Assembly? Oops, let's see. I can see
24 the next person on the Assembly side --
206
1 CHAIRWOMAN WEINSTEIN: Yes, I'm sorry.
2 Assemblyman Ed Braunstein.
3 CHAIRWOMAN KRUEGER: Take yourself off
4 mute, Ed.
5 ASSEMBLYMAN BRAUNSTEIN: Sorry about
6 that. Thank you. Thank you, Commissioner.
7 First of all, back in August I had
8 asked that when we finally received the
9 updated nursing home data that you amend the
10 July report. And I haven't had a chance to
11 look at it, but I'm happy to hear that you
12 did amend the report. And I'm interested in
13 looking at it and seeing if the conclusions
14 of the report hold true.
15 One of the things I wanted to ask you
16 about was I recently had a conversation with
17 a CEO of a pediatric nursing home, and they
18 told me that of their staff only 50 percent
19 of eligible staff have opted to get the
20 vaccine. And that number was somewhat
21 concerning to me. And I just want to know if
22 those numbers are typical across the {Zoom
23 glitch} -- if they're concerning to you and
24 if it suggests a broader problem of trust in
207
1 the vaccine amongst the public that could
2 cause us potential problems getting to herd
3 immunity.
4 COMMISSIONER ZUCKER: So thank you for
5 that question.
6 First, I actually do remember when you
7 asked me that, and I actually made a note to
8 actually reach out to you after we amended
9 it, we got tied up. But I do remember.
10 So it has been amended and it shows
11 you the same results that we found before.
12 So as I say, I stand by the report from July.
13 I stood by it then, I stand by it now.
14 Regarding the issue you raised, this
15 is important. Because the healthcare
16 community, we push very hard to get the
17 healthcare community immunized. The trust --
18 this all comes down to trust, it really does.
19 It comes down to the trust that you have in
20 the healthcare system. And if your doctors
21 and your nurses and your health professionals
22 are getting vaccinated, then the public will
23 do that as well.
24 And it also comes down to the trust
208
1 within the community. People trust those who
2 they know. So doctors and health
3 professionals are a lot of -- you know,
4 there's a lot of confidence in them. So if
5 they feel they're doing this, then it is
6 fine. So when you say that 50 percent are
7 not getting the vaccine -- and then the
8 public is going to perceive, well, there must
9 be a reason.
10 The vaccines are safe and effective.
11 I've said that all along. Tomorrow I will be
12 on a call with my clinical advisory
13 committee. After the FDA looks at the
14 Johnson & Johnson, we will go through all the
15 data. I promise you that I will make sure
16 that it is safe and effective. And if the
17 FDA says it is, which -- and our team will
18 also look at it, I have confidence in the FDA
19 as well, and so --
20 ASSEMBLYMAN BRAUNSTEIN: Just
21 quickly -- sorry. I mean, but are we seeing
22 skepticism among the public and is that
23 potentially a problem --
24 COMMISSIONER ZUCKER: Initially --
209
1 (Overtalk.)
2 ASSEMBLYMAN BRAUNSTEIN: -- herd
3 immunity when we talk about it. But if only
4 50 percent of healthcare workers are getting
5 the vaccine, it's going to be a long time
6 before we get to that herd immunity.
7 COMMISSIONER ZUCKER: Right. But that
8 may be a pocket, you know, because we have a
9 lot more that are vaccinated in the hospitals
10 and the staff in the hospitals. So that is
11 something to look at.
12 But you are correct, if you have less
13 people vaccinated, then you will not develop
14 herd immunity. But it will take time for
15 herd immunity to be achieved on a grand
16 scale. But the more people are vaccinated,
17 the better.
18 So it comes back to messaging, it
19 comes back to making sure people get out
20 there. And it also comes back to, obviously,
21 supply. And that's why I brought up the J&J
22 and tomorrow's EUA so that once we get that
23 done, we'll get more vaccine in the pipeline.
24 And I think as time goes by, more
210
1 people realize, Well, my neighbor who was
2 vaccinated is fine, you know, and my friends
3 or my cousins, my uncle. And then it
4 develops that sort of tipping point
5 concept -- borrowing from, you know,
6 Malcolm Gladwell -- which is the concept that
7 others feel like, you know what, if they're
8 vaccinated and they're fine, I'll get
9 vaccinated too, it's safe and effective.
10 But I hear your point.
11 CHAIRWOMAN WEINSTEIN: Back to the
12 Senate.
13 CHAIRWOMAN KRUEGER: Thank you very
14 much.
15 And our next Senator is Senator
16 Tedisco. Are you there, Jim?
17 SENATOR TEDISCO: Yup.
18 CHAIRWOMAN KRUEGER: Okay.
19 SENATOR TEDISCO: Let me get the video
20 up. Am I up? We're all set?
21 CHAIRWOMAN KRUEGER: We can hear you,
22 and now we can see you. So keep going.
23 SENATOR TEDISCO: Okay, we're all set?
24 The clock starts now.
211
1 CHAIRWOMAN KRUEGER: Okay.
2 SENATOR TEDISCO: Commissioner, on
3 March 25th of 2020 the Governor put forth an
4 executive order expediting the placement of
5 COVID-positive individuals into nursing
6 homes. Many New Yorkers, and most of us as
7 legislators, want to know its true impact.
8 At some point in the ensuing weeks leading up
9 to a new directive on May 10th, in which the
10 administration took a 180-degree turn, saying
11 all persons would be tested and, if positive,
12 would not be allowed to enter a nursing home,
13 a new process to count nursing home deaths
14 was implemented to only define residents who
15 got COVID in a nursing home and died as a
16 nursing home death. And those who got COVID
17 in a nursing home and got so sick they had to
18 be hospitalized would now be defined as a
19 hospital death.
20 Commissioner, we were the only state
21 in the nation which counted nursing home
22 deaths in that convoluted way. This is and
23 was problematic, for obvious reasons.
24 Fifteen thousand nursing home residents
212
1 didn't die because many of them got the virus
2 in a nursing home and became so sick that
3 they were later taken to a hospital and lost
4 their lives -- they died because they got the
5 virus in a nursing home. Let me repeat that.
6 They died because they got the virus in a
7 nursing home.
8 When you withheld those numbers and
9 took those who got the virus that went to a
10 hospital and died and combined those with all
11 those who died from COVID, this information
12 made it impossible -- not getting it made it
13 impossible to further come to conclusions
14 about what caused one of the worst disasters
15 in New York State history.
16 Those death numbers took close to
17 10 months to receive and were only made
18 public a few weeks ago, on the same day as
19 the Attorney General pulled back the veil of
20 secrecy from this administration and released
21 a report that said there was a 50 percent
22 undercount of the total number of those who
23 got the contagion in a nursing home and died
24 and those who got COVID and died in a
213
1 hospital.
2 That's the number we were seeking,
3 that total that got the contagion in a
4 nursing home and went to a hospital -- not
5 combined with all the other hospital deaths.
6 With these facts, along with
7 Judge Kimberly O'Connor making a judgment on
8 a lawsuit the Empire Center and myself
9 brought forth to get the real numbers as
10 related to lost lives, she deemed the
11 administration violated the Open Government
12 Law. Let me repeat that. She deemed --
13 separate branch of government, a judge --
14 that you, the Governor, the administration
15 violated the Open Government Law.
16 And remember, in light of the fact
17 that 15,000 of our most vulnerable population
18 got this virus in a nursing home and died,
19 and in light of that research by Bill Hammond
20 from the Empire Center, we recently showed
21 the Governor's March 25th executive order
22 took upward of 100,000 or more nursing home
23 residents' lives because COVID-contagious
24 persons were placed from hospitals into
214
1 nursing homes.
2 For close to a year, Commissioner, you
3 and the administration have denied the
4 March 25th executive order had any impact as
5 to what --
6 THE MODERATOR: Time has expired.
7 SENATOR TEDISCO: -- the Governor
8 defined as a wildfire through dry grass. I
9 ask you this. At long last, will you and the
10 Cuomo administration admit to your
11 culpability in these deaths and finally issue
12 apologies --
13 CHAIRWOMAN WEINSTEIN: Excuse me, the
14 time ex --
15 SENATOR TEDISCO: -- to the thousands
16 of families impacted?
17 CHAIRWOMAN WEINSTEIN: Excuse me,
18 Senator, your time has expired.
19 SENATOR TEDISCO: Isn't it time that
20 you and the Governor finally --
21 THE MODERATOR: Senator --
22 CHAIRWOMAN KRUEGER: Jim, your time
23 has expired.
24 SENATOR TEDISCO: -- and the families
215
1 that lost their lives?
2 CHAIRWOMAN WEINSTEIN: Thank you --
3 CHAIRWOMAN KRUEGER: Commissioner,
4 we're not going to allow you to answer that
5 today.
6 SENATOR TEDISCO: I wouldn't want to
7 answer it myself either, Senator, if I were
8 him.
9 CHAIRWOMAN KRUEGER: Well, I'm doing
10 it based on time.
11 So the commissioner is welcome to put
12 it in writing to you or to all of us
13 afterwards.
14 COMMISSIONER ZUCKER: I will. I will
15 respond, because there's a lot of fiction
16 there and I need to provide the facts. So I
17 will respond in writing.
18 And there was no undercount. But we
19 can provide that in writing.
20 CHAIRWOMAN KRUEGER: That would be
21 very -- it's probably more helpful to
22 Senator Tedisco to have it in writing anyway,
23 and all of us to see it.
24 COMMISSIONER ZUCKER: Thank you.
216
1 CHAIRWOMAN KRUEGER: So thank you.
2 And I'm sorry, but you went over.
3 Assembly.
4 CHAIRWOMAN WEINSTEIN: We're going to
5 go to Assemblywoman Rosenthal.
6 We're just making a slight adjustment
7 in the list of Assembly orders.
8 ASSEMBLYWOMAN ROSENTHAL: Thank you
9 very much.
10 Hello, Commissioner. I have a couple
11 of questions.
12 I'm the former chair of the Committee
13 on Alcoholism and Drug Abuse, and I've being
14 asking the Department of Health to report the
15 number of overdose deaths for months, since
16 last summer. And I've asked you for those in
17 prior hearings. I was not provided with the
18 legally mandated report on the DOH website
19 until an article appeared online. It
20 shouldn't take an article to abide by the law
21 mandating reporting.
22 So despite the fact that neighboring
23 states like New Jersey and Connecticut have
24 released almost all of their 2020 data,
217
1 New York has only released provisional up to
2 June 2020 just the other day.
3 In addition, the data show a decrease
4 in Quarter 2 of 2020, which would cover the
5 period of April through June, the peak of the
6 COVID surge in New York. We know from
7 providers and activists that that number
8 actually rose, and when they were crippled
9 under the weight of increasing overdoses --
10 yet the data does not reflect that.
11 How does New York explain the
12 substantial decrease in overdose deaths at
13 the height of COVID when providers have told
14 us that that was the time of greatest need?
15 And how do you make a budget for the next
16 year when the facts and data about 2020 are
17 wrong?
18 That's my first question.
19 COMMISSIONER ZUCKER: So the first
20 part of that, there is data from October to
21 January that was recently posted, so I
22 believe you --
23 ASSEMBLYWOMAN ROSENTHAL: Yes, I
24 mentioned that.
218
1 COMMISSIONER ZUCKER: Yeah, right, and
2 so you've seen that.
3 I understand there's been a little bit
4 of a delay --
5 ASSEMBLYWOMAN ROSENTHAL: {Inaudible.}
6 COMMISSIONER ZUCKER: -- and I will
7 get back to you about some of the other
8 numbers. What was that?
9 ASSEMBLYWOMAN ROSENTHAL: A whole
10 year's delay. They were supposed to be up --
11 COMMISSIONER ZUCKER: Oh, it's --
12 ASSEMBLYWOMAN ROSENTHAL: Anyway --
13 COMMISSIONER ZUCKER: I understand.
14 ASSEMBLYWOMAN ROSENTHAL: -- go on.
15 COMMISSIONER ZUCKER: I understand.
16 We've been pretty busy on this, and I
17 understand.
18 But it's not to -- not to decrease the
19 impact and the concerns of opioids, because I
20 believe they tie very closely to the issue of
21 the pandemic. And as I said earlier, working
22 with the other agencies has been really
23 important in order to address the --
24 ASSEMBLYWOMAN ROSENTHAL: Okay, what
219
1 about the low number in the second quarter?
2 COMMISSIONER ZUCKER: So I will try to
3 get you the answers to the low numbers, why
4 those numbers are bad. It may be a lack of
5 reporting or -- but I will find out for
6 you --
7 ASSEMBLYWOMAN ROSENTHAL: Okay, it's
8 important --
9 COMMISSIONER ZUCKER: -- and I'll get
10 back to you.
11 ASSEMBLYWOMAN ROSENTHAL: Okay. My
12 next question is OMIG has been auditing OTPs
13 around the state and they uncovered some
14 minor administrative and paperwork errors,
15 and in one case they were fined $7 million
16 because of administrative errors -- no deceit
17 or lying -- and they had to close. This is
18 happening in other facilities across the
19 state.
20 I did write a letter; in October I
21 finally got an answer. However, this -- I
22 believe OMIG and you and the department have
23 a legal and moral duty to consider the impact
24 that its audits have on accessibility of
220
1 services.
2 COMMISSIONER ZUCKER: Donna, do you --
3 ASSEMBLYWOMAN ROSENTHAL: You can --
4 we can have a further discussion on that.
5 MEDICAID DIRECTOR FRESCATORE: Yes,
6 I'm happy to do that, Assemblywoman. I'm not
7 familiar with the details, but I'm happy to
8 talk to OMIG directly.
9 And I think we, you know, do share
10 your thinking around being certain -- you
11 know, of course given the seriousness of what
12 might have been found as deficient -- that
13 access is important as well. So I'm happy to
14 have those discussions with the Medicaid
15 inspector general.
16 ASSEMBLYWOMAN ROSENTHAL: Thank you.
17 CHAIRWOMAN WEINSTEIN: We go to the
18 Senate now.
19 CHAIRWOMAN KRUEGER: Thank you.
20 Senator Kevin Thomas.
21 Are you with us, Kevin?
22 THE MODERATOR: We're having trouble
23 hearing you, Senator. You're unmuted, but we
24 don't have any sound from you.
221
1 SENATOR THOMAS: Sorry. The other
2 unmute button. Can you hear me now?
3 CHAIRWOMAN KRUEGER: Yes.
4 SENATOR THOMAS: All right, awesome.
5 Thank you, Commissioner, for being
6 here, and thank you to Chairwoman Krueger for
7 doing this as well.
8 Commissioner, the decisions regarding
9 the handling of COVID-19 in nursing homes and
10 long-term-care facilities have negatively
11 impacted the residents and their families,
12 and by that losing loved ones. We could
13 debate and point fingers about who is at
14 fault all day, but I want to see things
15 improve for the betterment of all
16 New Yorkers. This virus is not going away
17 anytime soon. And even today there's
18 reporting on another mutant strain that's
19 going around.
20 We need to focus our efforts on how we
21 can do better for residents of this state,
22 all right? And the residents of this state
23 are scared for their loved ones residing in
24 nursing homes.
222
1 Do you believe that expanding funding
2 and access to the Consumer-Directed Personal
3 Assistance Program is a viable alternative
4 for elderly New Yorkers? And what additional
5 resources can we allocate to the program to
6 allow people access to quality care in the
7 safety of their own homes?
8 COMMISSIONER ZUCKER: So I -- I agree
9 that we need to address the care of the
10 seniors not just in the nursing homes, but
11 seniors in general.
12 And I am aware of the issues of the
13 Personal Assistance Program. I know that
14 Donna also can speak a little bit about this.
15 But I will tell you that regarding the
16 looking forward -- this is part of not only
17 what the Governor has said in the budget
18 about the three areas that I mentioned
19 earlier -- to save time, I won't reiterate
20 them -- but also just overall the
21 department's efforts to look at how to
22 provide care to those who are elderly. And
23 it's why New York is the first Age-Friendly
24 State. We've worked very hard on this for a
223
1 considerable period of time and have worked
2 with foundations, groups, advocates and all
3 the long-term-care community.
4 Donna, do you want to address any of
5 the Personal Assistance Program?
6 MEDICAID DIRECTOR FRESCATORE: Sure,
7 Dr. Zucker. And thank you, Senator.
8 I think that I would just quickly add,
9 being respectful of your time, that Medicaid
10 and the department remain committed to the
11 Personal Care Program and Personal Assistance
12 Program through the Consumer-Directed
13 Program.
14 You know, last year we -- together
15 with the Legislature, we enacted into law a
16 series of reforms. Those reforms made
17 changes to the program intended to strengthen
18 them, intended to -- we've heard consumers
19 about things like assessments and how
20 frequent they are, and we want to continue to
21 work with you to look for opportunities to
22 ensure that when it's appropriate,
23 individuals can get care at home.
24 SENATOR THOMAS: But do you believe
224
1 that expanding funding for this program would
2 be an alternative?
3 MEDICAID DIRECTOR FRESCATORE: So
4 we've got -- you know, we see right now,
5 through the Medicaid program, we anticipate
6 for this upcoming fiscal year that the
7 Personal Care Program alone will grow to over
8 a billion dollars, about $1.2 billion.
9 We make it known those programs exist
10 and those options exist, and we'll continue
11 to do that. I mean, certainly. And you
12 know, so again, we're committed to working
13 with you and working with providers to ensure
14 that people, when it's appropriate, are able
15 to receive either personal care services or
16 personal assistance services at home.
17 SENATOR THOMAS: Thank you.
18 CHAIRWOMAN KRUEGER: Thank you.
19 Assembly?
20 CHAIRWOMAN WEINSTEIN: We go to
21 Assemblyman Ashby now.
22 ASSEMBLYMAN ASHBY: Thank you,
23 Madam Chair.
24 Commissioner Zucker, I remember
225
1 speaking with you back in August about the
2 March 25th order and residents being
3 discharged from nursing homes and being able
4 to track them. And I appreciate the
5 follow-up, much later than we would have
6 liked, to get those numbers.
7 But I'm still -- I'm still having a
8 hard time understanding the rationale and the
9 explanation, I guess, of your understanding
10 with correlation of the providers coming into
11 the nursing homes and that being the chief
12 cause of the spread of COVID, versus the
13 residents that were forced to go back to the
14 nursing home.
15 If our providers are taking the
16 necessary steps to ensure good hygiene and
17 all of the requirements in there, and our
18 patients being in there as well, I mean,
19 can't you see this as a potential for disease
20 spread? I don't understand the -- you being
21 so adamant that this is not a contributing
22 factor. Can you elaborate on that?
23 COMMISSIONER ZUCKER: Sure.
24 So let me take you back in time a
226
1 little bit. So I think -- this keeps coming
2 up, and I want it to be clear, and I want
3 everyone to understand this. So number one,
4 let's just look at where we were at that
5 point in time.
6 We had predictions and models on
7 March 23rd, because I remember when it came
8 through, of 140,000 people going to the
9 hospital, 37,000 into the ICU. We had
10 50,000 hospital beds in the state,
11 30,000 hospital beds downstate, and only,
12 let's say, 5,000 in the ICU. As an ICU
13 doctor, I can tell you this was a horrific
14 feeling. I'm telling you I sat there when I
15 heard these numbers, when the model was shown
16 to me, and I actually said to myself, how are
17 we going to do this -- with other words in my
18 head, but how are we going to do this? And
19 the thought of the National Guard standing
20 there with the bags, squeezing them, and then
21 all the issues of ventilators. So the --
22 ASSEMBLYMAN ASHBY: Dr. Zucker, I
23 understand -- I understand there was a lot of
24 pressure and I understand that there were a
227
1 lot of -- there were a lot of numbers there,
2 but that doesn't change -- that doesn't
3 change the -- necessarily the fact of the
4 numbers coming in of the people who were --
5 COMMISSIONER ZUCKER: But the --
6 ASSEMBLYMAN ASHBY: -- those positive
7 with the disease.
8 COMMISSIONER ZUCKER: I'm trying to
9 say this, but I'm trying to explain this to
10 you --
11 ASSEMBLYMAN ASHBY: -- and the
12 disease -- and the disease prevalence. So
13 I --
14 COMMISSIONER ZUCKER: Right, but this
15 is what's happened, is that I'm --
16 ASSEMBLYMAN ASHBY: So if you could
17 try and get to the point, because I have less
18 than 30 seconds left, please, Dr. Zucker.
19 COMMISSIONER ZUCKER: I understand. I
20 understand. I'm happy to explain it.
21 But this is what's happened, is that
22 people are not listening to what the science
23 is. The fact of the matter is that the --
24 first of all, it was in the facilities,
228
1 98 percent of the people had it in the
2 facilities. It came in from the community
3 and was already there, it was there long
4 before we even knew it was spreading among --
5 ASSEMBLYMAN ASHBY: And then they were
6 forced to continue to take these patients,
7 thus increasing the numbers, right?
8 COMMISSIONER ZUCKER: -- let me
9 explain. But you were not following on the
10 science on this. I'm sorry to be so direct
11 about this, but the science is what we need
12 to look at.
13 And I was trying to explain it before
14 about how long somebody was contagious and
15 then what period of time, and then the median
16 amount of time that they were in the
17 hospital. And that by the time they came
18 back, the science is the virus is no
19 longer --
20 ASSEMBLYMAN ASHBY: The science is is
21 that there were more people admitted with the
22 disease, and that contributed to the --
23 COMMISSIONER ZUCKER: So then I'm
24 going to ask you --
229
1 ASSEMBLYMAN ASHBY: -- spread. That's
2 the science.
3 COMMISSIONER ZUCKER: Right, so let me
4 throw a question out to you.
5 THE MODERATOR: Time has expired.
6 COMMISSIONER ZUCKER: No, I would like
7 to ask this question, just throw it out.
8 How do you explain to me that without
9 anyone coming back to the nursing homes that
10 are positive from COVID -- even though we
11 could talk about the science aside -- no one
12 coming in as visitors, we still have cases in
13 the nursing homes? Not just here in
14 New York, where we're doing an aggressive job
15 with testing, but across the nation and
16 around the world. It comes in through the
17 community.
18 I mean, I am happy to sit down at some
19 point and go through this in depth and show
20 you the charts and show you the --
21 ASSEMBLYMAN ASHBY: I'd be happy to
22 acknowledge that that's a factor, but you --
23 THE MODERATOR: Time has expired.
24 ASSEMBLYMAN ASHBY: -- same token
230
1 acknowledge that the residents going into the
2 nursing homes are also causing the spread.
3 COMMISSIONER ZUCKER: I disagree --
4 (Overtalk, multiple voices.)
5 ASSEMBLYMAN ASHBY: That's the crux of
6 my question and the issue at hand.
7 CHAIRWOMAN WEINSTEIN: We're going to
8 go back to the Senate now.
9 CHAIRWOMAN KRUEGER: All right, thank
10 you.
11 Let's see, we are on Senator Griffo.
12 SENATOR GRIFFO: Can you hear me, Liz?
13 CHAIRWOMAN KRUEGER: Yes, we can hear
14 you.
15 SENATOR GRIFFO: Okay.
16 CHAIRWOMAN KRUEGER: And now we can
17 see you.
18 SENATOR GRIFFO: Thank you.
19 Commissioner, as you can see, in
20 budget hearings the time constraints, while
21 understandable, are really not conducive or
22 beneficial to the necessary interaction to
23 properly perform yours and our
24 responsibilities. When you appeared for
231
1 confirmation, you agreed to make yourself
2 available despite time demands.
3 So are you ready here today to commit
4 to us and to the members and publicly that
5 you will appear before committees of the
6 Legislature when you're invited to afford a
7 more thorough opportunity to examine and
8 discuss and answer questions on these health
9 policies and procedures that affect
10 New Yorkers?
11 COMMISSIONER ZUCKER: I have always
12 done so. I -- when I've been asked --
13 SENATOR GRIFFO: Commissioner --
14 Commissioner, you have not thoroughly done
15 this. I just want you to say today you will
16 and you're ready to do it. Because when
17 we've had meetings with you, it's been
18 limited -- 30 minutes, two questions.
19 Will you commit to just being
20 available to do that? You can see this
21 frustration. Will you be willing and ready
22 to do that?
23 COMMISSIONER ZUCKER: I'm always
24 willing to speak with the Legislature. And
232
1 if there was a commitment on time, there was
2 discussion -- I remember what you're
3 referring to about the two hours, whatever
4 period of time that we discussed back in the
5 summer -- I assume that's what you're
6 referring to. And that was the time --
7 SENATOR GRIFFO: So this is just a yes
8 or no. Are you willing to do it,
9 Commissioner?
10 COMMISSIONER ZUCKER: I said I am
11 willing to work with the Legislature to
12 answer the questions.
13 SENATOR GRIFFO: Because if you're
14 evasive on this, then you're not prepared to
15 do it. Are you going -- will you accept the
16 invitation to appear?
17 COMMISSIONER ZUCKER: I will appear
18 and speak with the Legislature if asked about
19 issues.
20 SENATOR GRIFFO: Thank you. Thank
21 you. I appreciate it.
22 Commissioner, the question is on
23 providing funding to long-term-care
24 facilities throughout the pandemic. Has that
233
1 come predominantly from the federal
2 government or have we allocated resources
3 from the state also?
4 COMMISSIONER ZUCKER: Could you -- I'm
5 trying to understand what your question is.
6 There's money that comes from federal,
7 and there's money that comes from the state
8 for --
9 SENATOR GRIFFO: Pandemic-related
10 money like CARES, things of that nature, has
11 all of that been applied? How has it been
12 applied, and where applied?
13 COMMISSIONER ZUCKER: I will -- I need
14 to get back to you about the specifics of
15 what proportion of the CARES Act has gone to
16 where. But I will get that to you.
17 SENATOR GRIFFO: Okay. And then
18 specific to the variant, the new variant
19 that's been identified, I know you're
20 starting to study this. Do you know how it
21 will affect the efficacy or the existing
22 therapeutic treatments?
23 COMMISSIONER ZUCKER: So this is --
24 that's a great question.
234
1 And the fact is that we do know that
2 this new variant and how it impacts patients
3 is that the virus needs to get into a cell.
4 The way all those little spike proteins
5 around there -- things hook onto the cells,
6 your body's cells, and it gets into it. And
7 some of these variants are able to make it
8 more sticky so they can get into the cell.
9 Once that happens, you end up with a
10 risk of a more potent infection in the
11 individual. And so we don't know yet about
12 this particular new variant, the B.1.526 that
13 we were talking about before, because we're
14 learning about it.
15 The virus always mutates, it continues
16 to mutate. We've seen many mutations. It's
17 just that every once in a while, the mutation
18 falls within the area that actually affects
19 how it can get into the cell, which is a
20 critical issue. The vaccine is designed
21 against the spike protein, because that's
22 what we're concerned about -- all the
23 vaccines are, whether they're the messenger
24 RNA vaccines, the adenovirus vaccines, all of
235
1 them are designed that way.
2 So we're going to have more
3 information about it. So once I can have
4 more information, I'm happy to share it with
5 you.
6 SENATOR GRIFFO: Thank you. We look
7 forward to you appearing with us very soon so
8 we can have a more thorough conversation.
9 CHAIRWOMAN KRUEGER: Okay, next we
10 have the Assembly.
11 CHAIRWOMAN WEINSTEIN: We go to
12 Assemblyman Hevesi.
13 ASSEMBLYMAN HEVESI: I think I'm
14 there. Commissioner, can you hear me?
15 COMMISSIONER ZUCKER: I hear you.
16 ASSEMBLYMAN HEVESI: Good. Good
17 afternoon, sir.
18 First I want to thank you and the
19 Health Department for all the positive things
20 that you've done during the pandemic under a
21 very difficult time.
22 My question will be solely about adult
23 homes, and I would respectfully ask that when
24 you answer this question, if possible, please
236
1 don't talk to me about budget-related issues
2 like revenue. I respectfully believe that
3 the Division of Budget has been responsible
4 for a lot of bad decisions over the last
5 couple of years that have hurt people and
6 actually cost taxpayers more money.
7 So here's my question from a health
8 perspective. Two programs, small amounts of
9 money, relatively, in the budget. The first
10 is $230,000 to the Justice Center, and the
11 second is the EQUAL program -- and I want to
12 get this precise -- the Enhancing Quality of
13 Adult Living Program, for $6.5 million. And
14 this is for people with psychiatric
15 disabilities in adult homes.
16 My understanding is that the adult
17 home industry for the last 40 years has been
18 systemically -- maybe not systematically, I
19 want to be fair -- mistreating residents,
20 unscrupulous financial practices, deplorable
21 conditions. And they're frequently ignoring
22 these people with psychiatric disabilities.
23 So my question is the Executive Budget
24 proposes to cut the 6.5 million for the
237
1 EQUAL Program, plus the small amount of
2 money, the 230,000 to the Justice Center.
3 And those cuts are for the advocates for
4 these people with psychiatric disabilities.
5 What is going to happen to those patients now
6 that we're stripping them of the people who
7 organized them, acted as counsel, advised
8 them of their rights? What is going to be
9 the impact for those patients if the
10 Executive Budget comes through?
11 COMMISSIONER ZUCKER: Well, we want to
12 be sure that obviously they have the right
13 counsel and they are represented both from
14 the standpoint of their legal issues but also
15 from their health issues as well.
16 So I will look -- I am sure that as we
17 move forward we'll make sure that if the
18 programs that were initially in place to
19 provide that service are no longer in
20 service, that there is a way that the
21 services can be provided through another
22 program, whether it's within the state or
23 other support from other sources of
24 revenue -- sources of support.
238
1 Now, the -- so that's the 230,000.
2 The advanced -- the EQUAL Program, that
3 program also I will look into and get you
4 some answers about. But nobody wants to have
5 a situation where any New Yorker is not able
6 to be -- have the care that they need and
7 representation that they need. So I will get
8 you an answer about that.
9 ASSEMBLYMAN HEVESI: I appreciate
10 that. Let me just end with saying that I
11 think it's important and I agree with your
12 assessment that we cannot leave this most
13 vulnerable population, the people with
14 psychiatric disabilities, to fend for
15 themselves, particularly at this time when a
16 lot of them have been traumatized or even
17 died during the pandemic.
18 So this is a priority for us; I hope
19 to make it a priority for you. Thank you.
20 CHAIRWOMAN WEINSTEIN: Back to the
21 Senate.
22 THE MODERATOR: You're muted, Senator.
23 CHAIRWOMAN KRUEGER: Let's try me
24 without a mute.
239
1 Senator Biaggi.
2 SENATOR BIAGGI: Thank you very much,
3 Madam Chair.
4 Thank you for coming here to testify
5 here today, Commissioner Zucker. I have two
6 questions, and I just ask that you --
7 actually, three questions. I just ask you
8 that you answer them as quickly as possible.
9 So I want to just return to a
10 provision of last year's budget that we
11 discussed during the summer, which is with
12 regard to Article 30-d of the Public Health
13 Law, which is also known as the Emergency
14 Disaster Treatment Prevention Act. Are you
15 familiar with this section of the law?
16 COMMISSIONER ZUCKER: I'd have to
17 check about it. Tell me a little bit about
18 it and I'll tell you exactly -- what's your
19 question regarding it?
20 SENATOR BIAGGI: It's with regard to
21 the blanket immunity that was given
22 to healthcare --
23 COMMISSIONER ZUCKER: Yes, I assume
24 that's what you're referring to, yeah.
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1 SENATOR BIAGGI: Okay. So Attorney
2 General Letitia James, her report discussed
3 the state's handling of nursing homes, and
4 when she discussed that she included this as
5 one of her recommendations or one of her
6 findings.
7 And so her report found that the
8 state's blanket immunity policy for nursing
9 homes may have incentivized them to
10 prioritize profit over patient and safety.
11 Do you still support Article 30-d of the
12 Public Health Law?
13 COMMISSIONER ZUCKER: You want to do
14 one question at a time? You want me to
15 answer that question first?
16 I will say that I find this concern
17 that -- the belief that immunity would make
18 healthcare workers not provide the
19 appropriate care actually pretty offensive to
20 all those who are working so hard on this
21 pandemic. And I do not believe that immunity
22 that was put in there was going to end up
23 causing someone to sort of say, Well, we'll
24 just push for profit, we're not going to
241
1 worry about the people that we're caring for.
2 And I just find that sort of
3 completely false, so -- and I recognize
4 that --
5 THE MODERATOR: One second,
6 Commissioner.
7 COMMISSIONER ZUCKER: Sorry.
8 SENATOR BIAGGI: You're not answering
9 the question that I asked you. The question
10 I asked you was with regard to complete
11 immunity for stakeholders, shareholders -- it
12 has nothing to do with healthcare
13 professionals.
14 COMMISSIONER ZUCKER: I'm saying to
15 you that the issue is that there are a lot of
16 people involved with taking care of people
17 and addressing the care during this pandemic.
18 And your -- your concern is that there
19 is -- that the immunity that was put in place
20 caused people to provide -- make a profit
21 over providing care. And I'm telling you
22 that people who care for individuals, whether
23 it's the frontline health worker or others,
24 are not going to do that, because I believe
242
1 they're in the best interests of trying to
2 take care of those who are sick.
3 And I think that -- I recognize the
4 challenge, I recognize there have been
5 changes. I ask you to remember the situation
6 that we were in at that point in time.
7 SENATOR BIAGGI: -- the public that we
8 all represent. Do you support the corporate
9 immunity provision in the budget from last
10 year, yes or no?
11 COMMISSIONER ZUCKER: I support what
12 when we did with the immunity at that point
13 in time, yes.
14 SENATOR BIAGGI: You support it right
15 now at this time, on February 25, 2021?
16 COMMISSIONER ZUCKER: You're breaking
17 up.
18 SENATOR BIAGGI: Do you support the
19 provision today?
20 COMMISSIONER ZUCKER: Of the immunity,
21 we are looking at it at this point in time.
22 I go back to the issue of where we were then
23 and our numbers where they are today. The
24 numbers are now coming back down; necessary
243
1 changes can be made. At the point where we
2 were sitting with 140,000 potential
3 hospitalizations, yes, we needed to do things
4 to make sure that happened.
5 CHAIRWOMAN KRUEGER: Thank you.
6 Assembly.
7 CHAIRWOMAN WEINSTEIN: We go to
8 Assemblyman Zebrowski, three minutes.
9 ASSEMBLYMAN ZEBROWSKI: -- Chair
10 Weinstein. And good afternoon, Commissioner.
11 Many of my colleagues are asking
12 questions about nursing homes, which are
13 incredibly important. We have limited time,
14 so I'm going to attempt to ask a few
15 questions about the vaccine rollout and
16 distribution.
17 As you said earlier -- I think one
18 other person talked about vaccines, or maybe
19 two -- but there's no doubt that the biggest
20 issue is the lack of supply. But that being
21 said, I have found, and I believe I speak for
22 many of my constituents, that the rollout has
23 sort of been disjointed. And my question is
24 really, can you explain to me why the state
244
1 chose this type of dispersed system?
2 Now, you mentioned it earlier -- like
3 I understand we have state sites. I
4 understand we have the county health
5 departments at times getting it. And I
6 understand we have some pop-up clinics and
7 pharmacies. But the fact remains that all
8 these providers, in my experience and my
9 constituents' in Rockland County, the
10 appointments pop up and then they're gone. I
11 mean, it's immediate, whether it's the county
12 health department or the pharmacies or things
13 like that. The state sites, many times you
14 sign on, there's no appointments.
15 So in general, folks sort of have no
16 idea when vaccines are coming, how many are
17 coming, where they're coming in, and there's
18 generalized frustration. Like to get a
19 vaccine, you literally have to get lucky in
20 some ways. You have to have the ability to
21 sort of call many different providers,
22 navigate through many different sites. You
23 have to anticipate when websites are going to
24 go live and the appointments are going to
245
1 come up.
2 And so, you know, knowing that we knew
3 there was going to be limited supply, I don't
4 understand why we didn't set up a system
5 where there was like preregistration,
6 especially for our seniors that are 75 and
7 above, or preregistration for essential
8 workers so that appointment slots could be
9 allocated. What am I missing? Like what --
10 why did, logistically, the state choose this
11 sort of dispersed system? I could understand
12 if we had a huge allotment -- you know, let
13 everybody go down to their pharmacy and go to
14 different parts in their community.
15 But when we knew we were going to have
16 this limited supply, why did we not try for a
17 more centralized process that could be
18 understandable and organized for folks?
19 COMMISSIONER ZUCKER: So let me start
20 by saying two things. One is that this is --
21 as the Governor has said, this is one of the
22 most complex things that the nation has ever
23 done.
24 {Zoom interruption.}
246
1 COMMISSIONER ZUCKER: What was that?
2 I hear some background noise.
3 So that's number one. And number two,
4 New York State is doing a phenomenal job.
5 Based on my conversations with people from
6 around the nation, they are very impressed.
7 Regarding the issue that you raise, we
8 have 13, you know, state-run sites and we've
9 had over a million appointments that are
10 registered in the state. And we've given
11 close to 4 million doses already in New York
12 State. But the issue is that you need to
13 work with communities, and you also need to
14 make sure that -- each community is a little
15 bit different.
16 And when we moved this forward, we
17 were also looking at different vaccines.
18 Initially the issue was, well, we need to get
19 this -- and everyone had a reason why they
20 needed to get a vaccine. We initially said
21 we want to get this into the nursing homes,
22 we wanted to get it to the most vulnerable
23 individuals. We worked with the federal
24 government on that, with a plan that they had
247
1 to get it into the nursing homes. And then
2 as we opened up further, we were able to get
3 it into -- provide more individuals.
4 We've made an incredible effort to
5 make sure we get this vaccine to all those
6 who need it as quickly as possible. The
7 challenge here is truly the supply. It
8 really is. I guarantee you, once J&J comes
9 out, and if it gets approved, all of a sudden
10 the numbers tick up. When Pfizer has more
11 vaccine in the supply and Moderna has more in
12 the supply line for New York, you're going to
13 see a lot more.
14 The Governor's view on this is like
15 get these sites out there, get them open, and
16 then when there's more vaccine, you can jump
17 and people can get in there and receive their
18 vaccine, versus having it, Okay, here's your
19 supply and you have no plan in place of where
20 you're going to put it. That's why we were
21 trying to make sure it worked.
22 But then the issue here is you have to
23 allocate. You give some to a hospital, you
24 give some to the pharmacies, you give some to
248
1 the sites that we had. The other issue on
2 this vaccine, and it's worth bringing this
3 up, is initially the Pfizer vaccine, which
4 was the first one that was approved, required
5 a cold storage issue, which limited where it
6 could go. Then when Moderna came along with
7 regular refrigeration, that made it a lot
8 simpler. And as we move forward, they'll be
9 a little bit easier.
10 The issue early on, everyone said,
11 Well, what happened in December, why did it
12 take so long to move forward? You have to
13 remember it was the end of the calendar year,
14 holidays were then, the hospitals -- some
15 people said, Well, the hospitals should have
16 given more out. You know, at the end of a
17 calendar year, I'm telling you, as one who's
18 practiced in hospitals for many years,
19 everything sort of -- it's not that it slows
20 down, it's just that people get short-staffed
21 a little bit.
22 And the healthcare workers needed to
23 be the first ones, so we wanted to get it to
24 them, because they're the ones who are
249
1 protecting the people who get sick. So we
2 wanted to be sure that they got it. So
3 that's why we drove it to the hospitals right
4 at first. And the nursing homes. That's how
5 the priority came there. And then as we
6 opened it up and we opened it up to other
7 individuals, and more supply came in, we've
8 been able to provide it to more people. And
9 now those with preexisting conditions will
10 have it, and then now we're thinking about
11 what do we do when J&J comes out.
12 And we're thinking about that. That's
13 a one-shot vaccine. How do we address that?
14 You know, are there certain populations
15 within society that you may have a harder
16 time getting a second shot to? So maybe we
17 drive it to those individuals. Maybe we
18 address those who are homebound. Maybe we
19 address those who are homeless. You know,
20 and so we're thinking this out.
21 And there's an incredible team working
22 on this, and really dedicated. But New York
23 is doing a great job on this. I just -- I
24 just really want to, you know, say that as we
250
1 look at the rest of the country. Thank you.
2 CHAIRWOMAN WEINSTEIN: Thank you.
3 We're going to go back to the Senate
4 now.
5 CHAIRWOMAN KRUEGER: Thank you. We're
6 going to Senator Serino.
7 Are you there, Sue? Not quite sure --
8 SENATOR SERINO: Yup, yup, here we
9 are. Sorry, my video wasn't starting. I'm
10 so sorry.
11 CHAIRWOMAN KRUEGER: That's okay.
12 SENATOR SERINO: Hello, Commissioner.
13 I've asked you at just about every
14 budget hearing why the state continues to
15 leave funding out for Lyme and tick-borne
16 diseases. I want it stated for the record
17 that not only is there no new funding for
18 Lyme this year, but this proposal even cuts
19 the minimal $69,000 that typically goes to
20 your department for it, and that's just not
21 right.
22 Now to nursing homes. Obviously the
23 questions I have require a thorough
24 response -- which you can't give in the three
251
1 minutes allotted -- so I'm going to put them
2 all out there and will request a response in
3 writing.
4 On April 23, 2020, I sent a letter to
5 you and the Governor asking you to move to
6 create regionalized specialty care centers or
7 step-down facilities where you would
8 designate certain facilities across the state
9 as COVID-only nursing homes. I never
10 received a response.
11 I also asked you about it again at the
12 August 3rd hearing and was told you'll look
13 into it.
14 I asked again in another letter on
15 December 1st, when no mention of these
16 facilities was made in your announced winter
17 plan. Again, no response.
18 I had to get my answer from a report
19 released as part of the February 10th secret
20 meeting where you say there are 19 of these
21 facilities across the state, and where you
22 said, quote: Starting in November, the
23 department launched an effort to establish
24 COVID-only nursing homes. November. That's
252
1 over six months after I first proposed the
2 idea.
3 So why did it take so long to take
4 this commonsense step? How many people have
5 been treated at these facilities, in what
6 municipalities are they located, and how was
7 it determined where the facilities would be
8 located and who would be admitted to them?
9 Now on to vaccines. The federal
10 vaccination program for nursing homes has
11 ended, and there continues to be new
12 admissions to nursing homes every day. I've
13 heard about residents who are being told they
14 can't receive the vaccine now in these
15 facilities. What is the state's plan to
16 vaccinate residents and staff who missed out
17 on the federal program?
18 And most importantly, we now have a
19 situation where some residents and staff are
20 vaccinated and others are not. What updated
21 infection control procedures are in place to
22 protect those who have not yet been
23 vaccinated?
24 And while we're on vaccines, I just
253
1 have to say, for the record, the rollout on
2 the state level has been truly horrendous.
3 We have no state site in the Mid-Hudson
4 Valley, and the fact that New York, one of
5 the tech capitals of the world, hasn't
6 established a centralized system for
7 appointments defies logic. And that needs to
8 be a top priority.
9 Now the questions that I'd actually
10 want you to answer -- and I just want a
11 simple yes or no -- are you confident in the
12 facts you've presented thus far today?
13 COMMISSIONER ZUCKER: Yes.
14 SENATOR SERINO: Then I see no reason
15 why you shouldn't support an independent
16 investigation to verify them. Your testimony
17 focused on reforms, but how can we talk about
18 reform when there hasn't been a comprehensive
19 review of where the state or others really
20 went wrong?
21 So will you support an independent
22 investigation or review into the state's
23 handling of the COVID crisis in our nursing
24 homes and residential healthcare facilities?
254
1 COMMISSIONER ZUCKER: There is an
2 ongoing investigation on this issue, and
3 that's -- I'll leave it at that.
4 SENATOR SERINO: And you'll support
5 it.
6 And do you know, did every Health
7 Department employee who did on-site
8 inspections in these facilities, or entered
9 for any other reason, get tested first?
10 COMMISSIONER ZUCKER: Yes.
11 SENATOR SERINO: Yes.
12 CHAIRWOMAN KRUEGER: Sue, you can do
13 follow-up with the doctor with asking in
14 writing, asking him to forward it to us all
15 in writing, but your time is up. Thank you.
16 SENATOR SERINO: Thank you,
17 Chairwoman.
18 CHAIRWOMAN KRUEGER: Thank you.
19 Assembly?
20 CHAIRWOMAN WEINSTEIN: So we go to the
21 Assembly ranker on Health, Assemblyman Byrne,
22 for five minutes.
23 ASSEMBLYMAN BYRNE: Thank you.
24 Mr. Commissioner and Director, I'm
255
1 going to try to just pose some comments and
2 questions, and then allow you to unpack and
3 address as many as you can because of my
4 limited time.
5 I do want to express my
6 disappointment, frustration and, quite
7 frankly, anger with the department in its
8 withholding of information from this elected
9 body for so many months this past year. And
10 the various comments from some members of the
11 Governor's administration from that private
12 meeting -- not you, Mr. Commissioner -- but I
13 find them very deeply disturbing.
14 I was listening to some of the
15 comments before, Commissioner Zucker, and I
16 just want to follow up. Your comment about
17 the justification of the March 25th directive
18 as far as the time and place that we were in
19 and the projection models, I think a lot of
20 us can relate and understand the pressure
21 that you must have been under, that we were
22 all under. But I also recall you justifying
23 that order by telling us it would -- it was
24 to protect COVID-19 patients from being
256
1 discriminated against, as one of your
2 justifications.
3 And again, your point about 98 percent
4 of the nursing homes having COVID already in
5 it from staff or from other avenues doesn't
6 really address the concerns that
7 reintroducing it could have caused more harm.
8 I also want to point out that the word
9 "undercount" or "underreporting," that's
10 directly taken from the AG's report that was
11 released too. So this isn't stuff that we're
12 just making up. They're very real concerns.
13 I want to ask you, Mr. Commissioner,
14 if in complying with the DOJ inquiry, if your
15 office would be willing to share the
16 communications and the information that was
17 shared with them. Could they share them with
18 the Legislature? We haven't really seen a
19 real timeline on that.
20 Senator Sue Serino mentioned, you
21 know, the need for step-down facilities. We
22 have a bill, I have a same-as in the
23 Assembly, and I was refreshed to see that the
24 department announced that there were
257
1 apparently 19 COVID-only nursing homes. But
2 it also raised the question if that's the
3 process we're going through now, why didn't
4 we use the Army Corps of Engineers, the
5 Westchester County Center, the Javits Center
6 more, if we're using COVID-19-only nursing
7 homes?
8 Now more towards the budget, because
9 this is a budget hearing, sir. You know, the
10 scheduled Medicaid drug carve-out has many
11 advocates and providers for the 430-b program
12 very concerned. There's a call from many of
13 us to delay or possibly reverse the decision.
14 I understand that some savings may be
15 obtained from greater collective bargaining
16 power, but again, there's concerns how this
17 could negatively affect providers.
18 I also have concerns that if this is
19 going to happen, and it is eventually,
20 whether it's delayed or not, is this really
21 the right time to be talking about repealing
22 "prescriber prevails" when the department has
23 such a monumental task ahead?
24 I looked at some of the 30-day
258
1 amendments. It was mentioned earlier about
2 some of the drastic increases in penalties in
3 nursing homes. And I understand, a lot of us
4 are embracing the discussion for nursing home
5 reform particularly because of what we've all
6 witnessed through this past pandemic. But
7 removing that rectification clause has a lot
8 of us concerned because I think when nursing
9 home operators and facilities want to correct
10 a situation, make it better, we should
11 embrace that.
12 And we do -- I have concerns about the
13 increase, not only for the nursing homes, but
14 there seems to be a targeted increase in
15 fines for adult-care facilities, and that's
16 really where that rectification piece comes
17 in.
18 Again, I have other concerns about the
19 budget. Part Q again talks about allowing
20 you, commissioner, to release alleged
21 complaints of professional misconduct for
22 doctors. There's concerns about how that
23 could negatively affect providers' careers if
24 things go on the internet.
259
1 And the Indigent Care Pool, that was
2 brought up earlier by some of my colleagues.
3 It disproportionately affects the safety-net
4 hospitals and county governments. I also
5 represent Westchester County; it affects the
6 Westchester Medical Center even more so,
7 because I don't believe the county government
8 contributes.
9 And the Adult Cystic Fibrosis
10 Assistance Program -- I don't think it's been
11 mentioned -- we need to bring that back and
12 we need to fund that program again.
13 With whatever time I have, I would
14 appreciate whatever answers you could
15 provide.
16 COMMISSIONER ZUCKER: Sure. I will
17 answer a few of them, and Donna will address
18 the 340-b program and some of the other
19 issues about providers.
20 On the first issue, I'm going to be
21 pretty quick. Regarding what you mentioned
22 about the AG, this is one of the challenges I
23 see. People read the headline, but they
24 don't read the report. And the headline says
260
1 yeah, there's an undercount, but if you read
2 the report, she clarifies that we provided
3 this information there. So -- and how the
4 numbers were provided.
5 On the issue about the legal issues,
6 about sharing information, I direct that back
7 to my legal team as to what information can
8 and cannot be shared. It's not that I'm
9 trying to be evasive on it, it's the process
10 that we go through in the department, and I'm
11 sure you would respect that.
12 Regarding the issue of those who have
13 come into the nursing homes, I would be happy
14 to explain that even further. I started to
15 do that before, regarding how this came back
16 into the nursing homes. And I still throw
17 out that question as to why is it still in
18 all these nursing homes across the country,
19 and it goes back to community spread.
20 And also I could talk more about the
21 science of this, why they were no longer
22 contagious and -- but that's for a longer
23 discussion.
24 Donna, do you want to touch on a few
261
1 things --
2 CHAIRWOMAN WEINSTEIN: I'm sorry,
3 Commissioner --
4 COMMISSIONER ZUCKER: Sorry.
5 CHAIRWOMAN WEINSTEIN: -- we're going
6 to move on.
7 I just want to remind members that if
8 you want an answer to your question, you need
9 to leave some time for that answer to happen.
10 But Donna can certainly put in writing
11 a response.
12 And we'll go to the Senate.
13 CHAIRWOMAN KRUEGER: Thank you --
14 MEDICAID DIRECTOR FRESCATORE: Be
15 happy to do that.
16 CHAIRWOMAN KRUEGER: Thank you.
17 So Commissioner, we have 31 more
18 people who have signed up to ask you
19 questions, and many of us have been sitting
20 in our chairs since 9:30 this morning. So
21 I'm going to recommend a five-minute break
22 for everyone.
23 SENATOR RIVERA: Before or after me,
24 Liz?
262
1 CHAIRWOMAN KRUEGER: No, no, we need
2 to prepare for you. We need the five-minute
3 break before you, Gustavo.
4 Yes, and we will return --
5 COMMISSIONER ZUCKER: That would be
6 very good for our health.
7 CHAIRWOMAN KRUEGER: -- to the Health
8 chair to ask his 10 minutes of questioning.
9 So everyone, you can go off of Zoom or
10 just turn off your picture, that's probably
11 the best, go do whatever you can do in life
12 in five minutes, and then come back.
13 Thank you.
14 (Brief recess taken from 1:48 to
15 1:54 p.m.)
16 CHAIRWOMAN KRUEGER: Thank you. Hi,
17 I'm Liz Krueger, chair of the Senate Finance
18 Committee, joined by Helene Weinstein, chair
19 of the Assembly Ways and Means Committee.
20 We are partway through the Health
21 Budget Hearing, and we are continuing our
22 questioning of Dr. Howard Zucker,
23 commissioner of the Department of Health.
24 And the next legislator up on deck is
263
1 Gustavo Rivera, chair of the Health
2 Committee, with a clock for 10 minutes of
3 questions.
4 Thank you, Senator Rivera.
5 SENATOR RIVERA: Thank you,
6 Madam Chair. Thank you, Commissioner. And
7 thank you, Medicaid Director.
8 I will try to get through as many of
9 these as I can, and then I will probably come
10 back for a second round after everybody else
11 has finished.
12 Now, I skipped the first time when I
13 was called upon because I wanted to make sure
14 that I saw what some of the questions were
15 going to be related to nursing homes. And I
16 heard many of my colleagues ask very similar
17 questions, and I will just say a couple of
18 things.
19 First of all, it is very clear that
20 this administration, whether it's you, sir,
21 or anybody else, the Governor or anybody else
22 speaking on his behalf, will apparently never
23 acknowledge that you have done anything
24 wrong. I will not ask you many of these
264
1 questions that folks have asked you already
2 because you will just repeat what you have
3 said before, which is that you did the best
4 that you could, that you've made no mistakes.
5 And it's as though the administration
6 continues every day to just be perfect and do
7 nothing wrong.
8 So since you cannot acknowledge
9 responsibility and are perfect at bobbing and
10 weaving on that issue, I will not visit it
11 any further; I'm sure that my colleagues will
12 actually do that.
13 Number two, because we are talking
14 about health and this is a budget hearing, so
15 I will definitely get into budget matters --
16 but because this is a budget hearing I wanted
17 to make sure that I state for the record that
18 particularly related to the cuts that you're
19 doing on Medicaid, these are not savings,
20 sir, these are cuts.
21 If we were to tax the wealthy, perhaps
22 by Investing in Our New York, we will
23 absolutely not only be able to close the
24 budget gap as a whole, be able to not do the
265
1 Medicaid cuts that we are doing, but also be
2 able to invest, whether it's in our health
3 system, education system, transportation, et
4 cetera. So we need to tax the wealthy to be
5 able to not have these cuts happening.
6 And as far as nursing homes, as I said
7 before, thank you for stealing our ideas,
8 because we have a couple of bills that we
9 passed out of the Senate -- and these are
10 good ideas, I'm glad that you've borrowed
11 some of them, stole some of them. And we
12 have more coming, and we would rather pass
13 our bills and have the Governor sign them
14 than have it done in the budget, since they
15 are watered-down versions of it.
16 Now to the budget. Number -- the
17 first thing is let's talk about Medicaid
18 cuts. I will read from a presentation that
19 you folks did to our staff yesterday
20 evening -- I will repeat, yesterday
21 evening -- in which one of the presentations
22 says: "Also solving for the global cap
23 deficits, the remaining balance of $1.2
24 billion in fiscal year '21 and $455 million
266
1 in fiscal year '22 will be used to provide
2 General Fund relief."
3 Please explain to me this insane idea,
4 sir, that you will save -- that the Medicaid
5 savings, that instead of actually closing the
6 cuts you will actually provide General Fund
7 relief. Please explain this to me.
8 COMMISSIONER ZUCKER: Donna? I think
9 Donna's going to handle that.
10 MEDICAID DIRECTOR FRESCATORE: I am.
11 Hi, Senator. And I'm --
12 SENATOR RIVERA: Hello.
13 MEDICAID DIRECTOR FRESCATORE: Hi.
14 I'm familiar with the PowerPoint that you're
15 describing and in fact had the opportunity to
16 talk to your staff and other legislative
17 staff as part of that meeting.
18 So let me, if I could, just take a
19 minute, I want to be mindful of your time --
20 SENATOR RIVERA: Take 30 seconds.
21 MEDICAID DIRECTOR FRESCATORE: Okay.
22 And I understand your question.
23 So, look, the -- there's -- we've had
24 extraordinary enrollment in Medicaid. Thank
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1 goodness, right? It was a safety net for so
2 many.
3 SENATOR RIVERA: Yes. Still is.
4 MEDICAID DIRECTOR FRESCATORE: We
5 expect that by March 31st -- yes, by March
6 31st of this year we'll have 7.1 million
7 people. It will start to go down a little
8 bit, hopefully, right, as the Maintenance of
9 Effort goes away. Which would mean the
10 pandemic and the emergency period was going
11 away. So that was --
12 SENATOR RIVERA: You're great at
13 filibustering, Donna. You're very excellent
14 at that --
15 MEDICAID DIRECTOR FRESCATORE: No, let
16 me tell you the -- let me --
17 SENATOR RIVERA: Please.
18 MEDICAID DIRECTOR FRESCATORE: -- tell
19 you the numbers, right? So the state will --
20 through June 2021, the state will receive
21 $4.5 billion in Enhanced FMAP. Right? We
22 call it eFMAP.
23 SENATOR RIVERA: Right.
24 MEDICAID DIRECTOR FRESCATORE: That's
268
1 after we share with the local governments.
2 And 3.2 billion of it will be used to offset
3 this extraordinary increase in enrollment.
4 So the state financial plan will pay for that
5 increase in enrollment.
6 What we talked about yesterday is that
7 there is in fact a second part of this, that
8 the Medicaid Global Cap provides funding to
9 the State General Fund by, in the end --
10 SENATOR RIVERA: Wait, wait, wait.
11 Wait, wait, wait. You're choosing to use
12 your savings to provide General Fund relief.
13 That's what the presentation says.
14 And my question to you is --
15 MEDICAID DIRECTOR FRESCATORE: Yeah,
16 and in the end --
17 SENATOR RIVERA: And my question --
18 hold on, hold on, hold on. Hold. The
19 question I will ask you, not unlike -- for
20 example, Senator Serino spoke about one
21 program about ticks, I forget -- Lyme
22 disease, right? That's $69,000 for --
23 MEDICAID DIRECTOR FRESCATORE: Yeah,
24 she did.
269
1 SENATOR RIVERA: You would rather cut
2 that program and a whole bunch of other
3 public health programs that deal with
4 controlling disease, that deal with community
5 issues, as opposed to -- you will cut that
6 rather than use some of this to actually
7 avert some of those cuts?
8 MEDICAID DIRECTOR FRESCATORE: Well, I
9 was talking about the Medicaid Global Cap,
10 and that program that the Senator was talking
11 about is not funded.
12 But what I was going to say here is
13 that when it's all said and done here, that
14 there is a benefit to the global cap of about
15 $1.2 billion, after all of these different
16 transactions happen.
17 I understand your question also. I
18 would also, you know, ask you to -- I guess I
19 would just submit that in the context of the
20 revenue loss that the state has had and the
21 calls you've heard for federal funding for
22 the state, and we step back and look at the
23 budget -- not only the closing of the
24 Medicaid Global Cap for the current fiscal
270
1 year '21, but the actions in '22, that the
2 budget doesn't -- and I'm talking about on
3 the Medicaid side -- the budget doesn't
4 make -- it doesn't in any way diminish
5 eligibility for benefits or benefits.
6 SENATOR RIVERA: Hold on. We will
7 certainly have a deeper conversation about
8 this when I'm not time-limited.
9 MEDICAID DIRECTOR FRESCATORE: Fair
10 enough. Fair enough.
11 SENATOR RIVERA: The reality is, as
12 you will recognize, that this global cap is
13 an invention, we can get rid of it. And if
14 we're talking about the institutions that are
15 ill-served by your consistent cuts and your
16 consistent austerity during the entire
17 administration of the Governor -- during the
18 entire 11 years there's been nothing but
19 frigging austerity -- and then you're saying
20 that you have a savings that you're instead
21 going to use to give to the General Fund as
22 opposed to deal with some of the institutions
23 that actually offer Medicaid services to
24 people around the state. Which is bananas
271
1 and frigging crazy. If it was another
2 setting, maybe my words would be different.
3 Moving on, pharmacy carve-out. Some
4 of my colleagues asked about this already.
5 Now, first of all, I will again implore you
6 to do not, to not continue with this,
7 particularly as it refers to 340-b providers.
8 Whether it be to FQHCs or Ryan White
9 providers or safety-net hospitals, the use
10 this money for wraparound services for the
11 most vulnerable in our state. And it is
12 unconscionable that you all are considering a
13 savings -- and I use that word again in
14 quotation marks, because they be cuts -- to
15 actually make sure that these institutions
16 cannot provide those services further.
17 And the $102 million, because I know
18 you're going to say that -- the $102 million
19 is not a permanent anything, because the
20 Governor can remove it next year and it does
21 not correspond to the $200 million that these
22 providers say are going to be cut from them.
23 Could you give me like a minute of why
24 this makes sense?
272
1 MEDICAID DIRECTOR FRESCATORE: Yeah, I
2 think we've long worked with you and your
3 colleagues on issues of transparency on the
4 pharmacy benefit, and the carve-out achieves
5 transparency. And we believe that the
6 Executive's proposal funds 340-b providers
7 directly, eliminating really --
8 SENATOR RIVERA: To the tune of --
9 MEDICAID DIRECTOR FRESCATORE: --
10 administrative costs.
11 SENATOR RIVERA: To the tune of half
12 of what they --
13 MEDICAID DIRECTOR FRESCATORE: I think
14 we should -- I think we -- yeah, let us come
15 back and explain some of those numbers, if
16 you will, rather than me using your time
17 here, because I think that --
18 SENATOR RIVERA: That would be great.
19 That would be great, particularly because --
20 MEDICAID DIRECTOR FRESCATORE: Because
21 I think -- I think -- right.
22 SENATOR RIVERA: Whoa, whoa, whoa.
23 Since you're on the record saying you would
24 provide the numbers -- because you folks are
273
1 also famous for never providing the math,
2 telling us about the numbers and never
3 telling us how you got to them.
4 I want to move to -- there's three
5 more issues --
6 MEDICAID DIRECTOR FRESCATORE: We've
7 shared those numbers, Senator. Senator,
8 those calculations have been shared many
9 times over.
10 SENATOR RIVERA: Great. I am looking
11 forward to seeing them.
12 There's a couple more issues. I will
13 definitely use my second round. But for the
14 moment I will take advantage of the CDPAP.
15 We talked about this already, right? There's
16 the process that was into the budget last
17 year with the MRT 2, right? Many of us voted
18 against it because we thought it was a bad
19 idea then, we thought it was a bad idea.
20 But the idea of getting -- of actually
21 scaling down on FIs is a good one. However,
22 there needs to be a little bit more
23 transparency on that process, and we need to
24 make -- and as far as process of appeal,
274
1 because although certainly we do not need
2 400 FIs, there are questions about the
3 {inaudible} that were ultimately picked.
4 I only have one more minute. On the
5 vaccine thing -- and I will come back,
6 because we need to talk about the
7 Essential Plan, but I will do that in my
8 second round. For now I'll just say quickly,
9 on the vaccine -- and this is a further
10 example of what I started with. You all
11 continue to say, Mr. Commissioner, that you
12 are doing the best. We are 42nd in the
13 country. There's 50 states, we're 42nd as
14 far as getting it to people.
15 And the rollout has been consistently
16 evading working with local entities like the
17 City of New York or localities around the
18 state. And you might have eventually gotten
19 to it, but when you started to roll it out,
20 it was about the administration creating a
21 parallel system where you all could claim
22 credit for it and not working along with
23 localities. Now, you all can say you didn't
24 do that, but you did. As in you didn't work
275
1 with localities across the state. And that
2 ultimately does not solve the problem of
3 getting more people vaccinated.
4 So please, the last 20 seconds, just
5 take this, just sit with this a second, just
6 breathe and say, you don't get everything
7 right. Every now and then it is okay to say
8 that you didn't get everything right. And
9 perhaps working along with your colleagues,
10 like us and localities, you would do a little
11 bit better.
12 I will come back for a second round,
13 Madam Chair. Thank you.
14 CHAIRWOMAN WEINSTEIN: So we will go
15 to --
16 CHAIRWOMAN KRUEGER: Any response at
17 all or -- I'm sorry. Did the doctor want to
18 say anything in response to that last
19 question of Gustavo's?
20 COMMISSIONER ZUCKER: No, I -- one
21 second. I hear his concerns. I say what I
22 said before about the vaccines, that this is
23 a complex process. But we are working with
24 the communities.
276
1 And I said that, you know, at the
2 beginning of this it was a -- it was a little
3 bit of a challenge. We were focused on
4 certain areas, we were trying to get into the
5 hospitals, and then we were moving to the
6 other areas.
7 As -- and I would just reiterate, this
8 is one of the most difficult challenges the
9 country has ever faced, to immunize an entire
10 population of, you know, 250 million-plus
11 people, so -- 300 million people.
12 CHAIRWOMAN KRUEGER: Thank you.
13 Assembly.
14 CHAIRWOMAN WEINSTEIN: Yes, we go to
15 Assemblywoman Reyes, three minutes.
16 There you go.
17 ASSEMBLYWOMAN REYES: Okay. So I --
18 my colleagues have asked a lot of questions,
19 so I am going to be brief and make the best
20 use of my three minutes.
21 So the Governor's Executive Budget
22 cuts the state's Article 6 public health
23 matching fund rates for New York City from
24 20 percent to 10 percent, while other
277
1 localities have a rate of 36 percent. And
2 until two years ago, New York City was also
3 at the 36 percent rate.
4 So this further cuts the New York City
5 public health matching funds. It will take
6 around 38 million in state public health
7 matching funding away from New York City --
8 in the middle of a historic pandemic.
9 Did the New York State Department of
10 Health advise the Governor's office to cut
11 public health matching funds from New York
12 City? And did the New York State Department
13 of Health evaluate what negative impact this
14 cut to public health funding would have on
15 the ability of neighborhoods in the Bronx,
16 Brooklyn, Queens, Manhattan and Staten Island
17 to fight COVID-19 and the racial health
18 disparities?
19 COMMISSIONER ZUCKER: So a couple of
20 parts to that question.
21 Number one, we -- we -- I understand
22 we cut it in New York City, that's what the
23 budget is proposing. You have to remember
24 that New York City does get resources from
278
1 many other places, particularly from the CDC
2 and elsewhere. And many other counties in
3 the state do not.
4 And as a department that is focused on
5 the entire state, and to make sure that
6 everyone gets what they need, I am concerned
7 with every area. You have the North Country,
8 you have out west, you have the Southern
9 Tier. There are many areas where there are a
10 lot of challenges as well, just like New York
11 City has its challenges. We wanted to be
12 sure that we could provide the funds to those
13 counties.
14 Regarding health equity, I hear you.
15 I hear you not just in the interests of
16 New York City, but across this entire state.
17 This is something that we have fought prior
18 to the pandemic and we continue to fight.
19 And we saw this, we saw this particularly
20 during the first part of this pandemic in
21 March and April downstate -- because that's
22 where it was concentrated -- where those who
23 were from communities of color were more
24 affected by this.
279
1 And the Governor has made a commitment
2 to make sure that the vaccines and any other
3 care -- testing, anything else when it comes
4 to this pandemic -- have been focused on
5 that.
6 ASSEMBLYWOMAN REYES: I'm running out
7 of time, and I have another question.
8 COMMISSIONER ZUCKER: All right.
9 Sorry.
10 ASSEMBLYWOMAN REYES: We can argue
11 that we can make better decisions to address
12 the racial and health disparities.
13 So it's also widely expected that
14 students will require additional physical and
15 mental health, behavioral health support from
16 their schools during and after COVID-19.
17 Many other states have expanded their
18 school-based Medicaid programs to fund these
19 types of district services with federal
20 dollars. What steps has New York taken to
21 modernize our program?
22 And in the same vein, the global cap
23 aims to control state spending on the
24 Medicaid program. Why does this fixed
280
1 percentage apply to the school-based
2 programs, which represent less than half of
3 1 percent of the overall budget, even though
4 expansion could net schools tens of millions
5 of dollars when they need it most from those
6 federal dollars?
7 COMMISSIONER ZUCKER: Donna, do you
8 want to touch on the global cap?
9 MEDICAID DIRECTOR FRESCATORE: Sure,
10 I'm happy to address that.
11 And I think you know that we have in
12 New York a school-based health program.
13 Medicaid covers those services, actually
14 outside of our Medicaid managed care rates,
15 but -- and Medicaid pays those school-based
16 health centers directly.
17 We've had some discussion with folks
18 about whether or not the services in schools
19 could be expanded and whether there's other
20 ways to claim federal Medicaid matching
21 dollars for those services. And we look
22 forward to continuing to have those
23 discussions and to learning from other
24 states. And they've graciously offered to
281
1 collect that information, and we'll convene
2 with them again.
3 On your issue of the global cap, all
4 state -- generally all state spending on
5 Medicaid is counted within the global
6 spending cap under statute as it was enacted,
7 you know, several years ago.
8 CHAIRWOMAN WEINSTEIN: Thank you.
9 We'll go to the Senate now.
10 CHAIRWOMAN KRUEGER: Thank you.
11 Our next Senator is Senator Pete
12 Harckham from Westchester County. And other
13 counties also, sorry.
14 SENATOR HARCKHAM: Thank you.
15 Commissioner, good to see you. Thank
16 you for being here.
17 I want to follow up on the overdose
18 line of questioning a little bit more. You
19 know, the data that we compile is essential
20 to responding in realtime, both
21 geographically and fiscally. So the fact
22 that, you know, we're behind New Jersey and
23 Connecticut to me does not bode well. To me,
24 you know, someone who passes from overdose is
282
1 just as important as someone who dies from
2 COVID. And we have prioritized the ability
3 to get daily numbers for COVID, and yet we
4 are still months behind when it comes to
5 overdose deaths.
6 So one of the things that
7 epidemiologists are recommending is using
8 emergency room syndromic surveillance as a
9 new way to predict overdose death, to get at
10 much more timely numbers so we can use that
11 information in the field.
12 Is this something that your department
13 has looked at? And how are you committed to
14 expediting the recording of overdose numbers?
15 (Pause.)
16 THE MODERATOR: We're not hearing you,
17 Commissioner. The microphone.
18 COMMISSIONER ZUCKER: The -- we have
19 looked at this issue and the use of emergency
20 rooms for not only tracking numbers but also
21 for care.
22 And prior to the pandemic we actually
23 were working significantly with both the
24 hospital systems around the area -- and I
283
1 remember actually being at one of the
2 meetings downstate about this to figure out
3 how we can come up with some system that is
4 universal that could work across the entire
5 state to address care of those who arrive in
6 the emergency rooms, but also to track it.
7 So I would welcome the opportunity to
8 sit down with you and to go through this,
9 along with my team, so that we can actually
10 tackle this a little bit more. Because this
11 issue of opioids that you raised as well as
12 your colleague raised is an important issue.
13 And we have not forgotten that this
14 was and continues to be one of the major
15 issues that the country is facing at this
16 point in time. It just happens to be that
17 the pandemic seems to have eclipsed many of
18 these other health issues, but we are focused
19 on them as well.
20 SENATOR HARCKHAM: Can I interrupt for
21 a sec? I just have time for one other
22 question. But thank you. I'd be happy to
23 sit down with you and your team to work on
24 this. A great step forward.
284
1 I want to follow up on what
2 Assemblyman Cahill was asking about -- in his
3 district, because of the need for surge, the
4 shutdown of behavioral health facilities. In
5 his case, it was moved out of that county.
6 In other instances, we're hearing they have
7 just not reopened.
8 Are you prepared to issue specific
9 directives to the hospital systems that when
10 the COVID emergency is over, they have X
11 period of time to reopen their behavioral
12 health beds or face certain sanction?
13 COMMISSIONER ZUCKER: Let's -- I would
14 like to -- I would like to look at that. I'd
15 like to get through the surge and flex
16 situation, or the pandemic and the surge and
17 flex approach that we're using.
18 But I think what we're going to find
19 is after we get through this, we're going to
20 be able to figure out a system that works
21 more efficiently and effectively for the
22 state, and also to address the behavioral
23 health issues.
24 It is -- I have noticed, and I've
285
1 spoken with the mental health professionals
2 both in the state and outside of state
3 government, about the need to make sure these
4 facilities are available for the residents
5 within the state. So I recognize the concern
6 that you have as well as Senator {sic} Cahill
7 and many other people have had about this.
8 So we will work on that, promise.
9 SENATOR HARCKHAM: And my time is up.
10 I would just suggest that the time to figure
11 this out is now, not after the pandemic.
12 COMMISSIONER ZUCKER: I hear you. I
13 hear you.
14 SENATOR HARCKHAM: Thank you.
15 CHAIRWOMAN KRUEGER: Thank you.
16 Assembly.
17 CHAIRWOMAN WEINSTEIN: Yes, we go to
18 Assemblyman Bronson.
19 ASSEMBLYMAN BRONSON: Thank you,
20 Madam Chair.
21 And Commissioner, thank you for being
22 here. I'm going to ask two questions. The
23 first one I hope we can take care of very
24 quickly so we can get to the second.
286
1 And the first one relates to the
2 Medicaid carve-out. And it's been brought to
3 my attention that health plans have been
4 instructed to send letters out to their
5 beneficiaries stating that the
6 fee-for-service carve-out for the Medicaid
7 drug program will be implemented starting
8 May 1st, and that they should send out
9 notices to the beneficiaries on March 1st.
10 You know, what's the reasoning for
11 doing this now when we know that we're in
12 negotiations in the middle of the budget to
13 address this issue, and hopefully come to a
14 resolution? Wouldn't it be better to wait
15 for those notices to go out until after we
16 finalize the budget around April 1st?
17 COMMISSIONER ZUCKER: Donna, do you
18 want to --
19 MEDICAID DIRECTOR FRESCATORE: So
20 again, quickly, I'll jump in and just, I
21 guess, explain the timing.
22 And that is that last year's budget
23 enacted a pharmacy carve-out from Medicaid
24 managed care that could occur on or after
287
1 April 1st. The notices that you were
2 mentioning are a federal requirement whereby
3 consumers need to be noticed under federal
4 regulations 30 days in advance of a change in
5 benefits. So that's the explanation of the
6 timing.
7 You know, I hear your question, but I
8 just wanted to explain the timing.
9 ASSEMBLYMAN BRONSON: Okay. Well, we
10 need to get this negotiated.
11 In connection with nursing homes and
12 in particular family visitations, I have been
13 in communication with a number of people at
14 DOH on a quite regular basis since last fall
15 trying to get guidelines for visitation. I
16 was very hopeful on Friday when the notice
17 came out, and then on Monday very, very
18 disappointed.
19 Why, why cannot our family members
20 visit nursing homes under the same health and
21 safety protocols as staff members? They're
22 doing the same thing out in the community,
23 and they come in. Why can't they get in on
24 the same protocols?
288
1 COMMISSIONER ZUCKER: So I hear you on
2 this. And I am very empathetic to the
3 situation of those who are in nursing homes
4 and their families.
5 The challenge here is not the state
6 alone. I open up the guidelines there and I
7 put them out, do as much as I can, but there
8 are CMS guidelines that we need to adhere to.
9 So we are -- our hands are sort of in some
10 ways tied, that they say that if you've had a
11 case in the nursing home within 14 days, you
12 can't go in. So we end up with 185, 188 this
13 week, of nursing homes that had visitation.
14 The challenge is that -- the concern
15 is it is still ending up in the nursing
16 homes. Right? The cases are still there.
17 We're testing people twice a week, the staff
18 we're testing twice a week, right? And so
19 that is -- but even testing twice a week,
20 even with 50 percent of the nursing home
21 staff now immunized, even with 72 percent,
22 75 percent of the residents immunized, we are
23 still seeing cases.
24 Now, they've dropped dramatically.
289
1 The number of cases have dropped in the
2 thousand -- I mean, I think it's like a
3 thousand less one week than it was the week
4 before in the nursing homes, which is great,
5 because of the vaccinations that have been
6 administered.
7 That is the problem. I opened this up
8 as best as I can, but I still am confined by
9 the rules of the federal government as to
10 what can be done. I wish as much as you if
11 you could open up. There are people who have
12 not seen their relatives in a year. There
13 are people who -- I understand the mental
14 health effects of this. I had a grandmother
15 in a nursing home years ago, and I remember
16 leaving her and I felt like she was so lonely
17 left there alone.
18 So I get it, I really get it. And I
19 wish I could do more. It's just that I'm
20 doing as much as I can to help them have
21 visitors there.
22 CHAIRWOMAN KRUEGER: Thank you.
23 CHAIRWOMAN WEINSTEIN: Thank you. To
24 the Senate.
290
1 CHAIRWOMAN KRUEGER: Thank you very
2 much.
3 Senator Rath next.
4 SENATOR RATH: Thank you, Madam Chair.
5 And thank you, Commissioner Zucker.
6 I want to expand on the vaccine
7 distribution and allocation issue, which has
8 been talked about and several questions have
9 been asked earlier today. Specifically, I
10 have two areas of concern that tie right in
11 with my district.
12 First, currently there are about
13 1500 pharmacies across New York State which
14 are approved to vaccinate, yet over the
15 several weeks of the pharmacy rollout, many
16 of these independent pharmacies have not
17 received any vaccines at all, and some of
18 these independent pharmacies have contacted
19 me. They have hired staff, they have
20 modified their facilities, they have
21 collaborated with pharmacy schools and
22 medical schools to roll out and to be
23 capable, but they're not getting any vaccines
24 whatsoever.
291
1 And so I'm wondering how the state
2 will address this inequitable distribution
3 amongst our independent pharmacies. And what
4 is the reasoning or justification that
5 countless pharmacies across New York State
6 have been left without allocation despite
7 being approved as sites to vaccinate?
8 COMMISSIONER ZUCKER: So -- and this
9 goes back to that old -- I guess it's an
10 economics principle, which is supply and
11 demand. Right? There's an incredible demand
12 for the vaccines, and there's just not enough
13 supply.
14 And so we're sitting there and I --
15 and we get it out to the pharmacies. We also
16 have to get it out to all these other sites,
17 the hospitals, to the nursing homes. Right?
18 We have six FEMA sites right now, there's
19 105,000 appointments. We've enrolled, you
20 know, a number of appointments in New York
21 State; there's over a million that we have.
22 But I hear your question about the
23 pharmacies and particularly the independent
24 pharmacies. I will work on getting an answer
292
1 as to why they have not received it, versus
2 others. And I will go back to my vaccine
3 team that are working on this to get a
4 specific answer for you about it.
5 SENATOR RATH: Thank you,
6 Commissioner --
7 COMMISSIONER ZUCKER: But it goes back
8 to that basic principle of supply and demand.
9 SENATOR RATH: -- it will definitely
10 be appreciated. A written response will
11 definitely be appreciated, because there are
12 many of these pharmacies who are like, why
13 are some pharmacies continuously, month over
14 month and week over week, continuing to get
15 vaccines and some have gotten none? And
16 they're very frustrated and have invested a
17 lot of money.
18 But I want to go to my second question
19 because I know my time is ticking here. So
20 far the state's primary focus for Phase 1B
21 vaccination has been on utilizing mass
22 vaccination sites. However, this leaves
23 seniors and those in travel as well as
24 broadband deserts with significant barriers
293
1 to vaccine access.
2 Is there a plan to aid those counties
3 with these access barriers, specifically
4 rural and agricultural counties across
5 New York State? Do you have a plan for that?
6 COMMISSIONER ZUCKER: So there's two
7 parts to the answer to that. We do -- we are
8 looking at that issue in the bigger picture
9 of getting into the rural areas of the state.
10 But you bring up the issue of seniors,
11 and I will bring up the fact that there's
12 also the issue of how do you get those who
13 need to be vaccinated who are at home and
14 alone and somewhat homebound. So we are
15 working with an organization starting in
16 certain areas of the state right now, and
17 we'll see how it goes, to be able to get
18 vaccines to those who are basically
19 homebound, because they need to be vaccinated
20 as well.
21 And someone will say, well, they're
22 not going out --
23 SENATOR RATH: Thank you,
24 Commissioner.
294
1 COMMISSIONER ZUCKER: -- but people
2 are coming in to see them --
3 SENATOR RATH: I just want to add,
4 Commissioner, very quickly, Genesee, Orleans
5 and Wyoming counties have a plan at Genesee
6 Community College. If I could have a written
7 response to a plan for that specific idea for
8 100,000 residents, I'd sure appreciate it.
9 Thank you, Commissioner.
10 COMMISSIONER ZUCKER: Okay, got it.
11 CHAIRWOMAN KRUEGER: Thank you.
12 Assembly.
13 CHAIRWOMAN WEINSTEIN: We go to
14 Assemblyman McDonald.
15 (Pause.)
16 THE MODERATOR: We are asking him to
17 unmute and start his video, and he has not
18 done so at this time, Madam Chair.
19 CHAIRWOMAN KRUEGER: I guess he's not
20 there.
21 CHAIRWOMAN WEINSTEIN: Okay, then we
22 will go to Assemblymember Gandolfo.
23 ASSEMBLYMAN GANDOLFO: Thank you,
24 Chair.
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1 And thank you for being here with us
2 today, Commissioner.
3 I just want to loop back to something
4 one of my colleagues was talking about
5 before. I thought I heard you close out and
6 say that you did not believe that the March
7 25th order had any impact at all on the
8 spread of COVID in nursing homes or deaths in
9 nursing homes.
10 Can you expand on that a little bit?
11 COMMISSIONER ZUCKER: Sure. And happy
12 to do so. As I've mentioned before to other
13 members of the Legislature, that I can
14 explain this in a couple of ways. Let me
15 just start with the science on this.
16 Well, first let me start with what
17 brought this into the nursing homes. This
18 goes back to the nursing home report, it goes
19 back to the July 6th presentation. It came
20 in through inadvertent spread by the staff,
21 asymptomatic spread, at a time when we were
22 unaware of how this virus spread. That's the
23 first part.
24 It was in the nursing homes, it was in
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1 98 percent of the nursing homes, 98-plus
2 percent of the nursing homes prior to any
3 person being readmitted from a hospital to a
4 nursing home. That's number two.
5 Number three is the issue of how the
6 disease actually is spread and the incubation
7 periods and at what point is someone
8 contagious from the disease. And I went
9 through this before, that there's a window of
10 time prior to when your symptoms occur when
11 you are contagious, and then when your
12 symptoms are there, early on you're the most
13 contagious. This is all about viral load,
14 how much --
15 ASSEMBLYMAN GANDOLFO: Okay, thank
16 you, Commissioner.
17 COMMISSIONER ZUCKER: -- how sick you
18 are.
19 ASSEMBLYMAN GANDOLFO: I recall you
20 said that before.
21 COMMISSIONER ZUCKER: Right.
22 ASSEMBLYMAN GANDOLFO: But so what
23 you're saying is that this order could have
24 had zero impact, based on the scientific --
297
1 COMMISSIONER ZUCKER: Yes, that is
2 correct.
3 ASSEMBLYMAN GANDOLFO: Zero impact.
4 COMMISSIONER ZUCKER: That is correct.
5 Could there be that random one person that
6 came in? You know, I can't say for -- you
7 know, I never like to say something is like
8 100 percent or zero percent.
9 But what I'm saying is that there
10 could have been that random person that may
11 have come into one nursing home. But that is
12 not the case, it was not in the -- this memo
13 was not the driver of nursing home
14 fatalities. It's just not the driver. And
15 all the data from there going forward
16 supports it, in New York State as well as
17 around the country and, for that matter,
18 around the world when you look at the
19 literature.
20 ASSEMBLYMAN GANDOLFO: Okay, thank
21 you, Commissioner. I just want to clear up
22 whether or not it could have at least had one
23 case that might have come in.
24 COMMISSIONER ZUCKER: (Inaudible.)
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1 ASSEMBLYMAN GANDOLFO: And I also want
2 to -- I know the Governor had a recent press
3 briefing, he mentioned that he would be fine
4 with making public the data that was turned
5 over to the DOJ. Is -- has there been any
6 movement on that? Do we have a status on
7 whether or not that is being made public,
8 regarding the --
9 COMMISSIONER ZUCKER: I am aware of a
10 letter that -- my legal team deals with the
11 DOJ issue. My data team, as we know, deals
12 with my data analytics issue. These things
13 are occurring in parallel and while I manage
14 deals with the pandemic and all the issues
15 that we have been dealing with on that, so.
16 ASSEMBLYMAN GANDOLFO: Okay, so
17 there's no timeline there yet. Got it, thank
18 you.
19 And a final question. Given the fact
20 that we're able to convene the Legislature
21 almost immediately via Zoom, is there any
22 public health reason to allow the Governor to
23 retain his expanded emergency powers?
24 COMMISSIONER ZUCKER: That's -- that's
299
1 a question that is outside of my scope, I
2 will say. It's above my pay grade. And so I
3 leave that to others to answer.
4 ASSEMBLYMAN GANDOLFO: Okay. Thank
5 you, Commissioner.
6 CHAIRWOMAN KRUEGER: Thank you very
7 much.
8 CHAIRWOMAN WEINSTEIN: Yes. Senate?
9 CHAIRWOMAN KRUEGER: Senator
10 Oberacker.
11 Are you there with us, Senator?
12 SENATOR OBERACKER: Yes, I am.
13 CHAIRWOMAN KRUEGER: Oh, good. Hello.
14 SENATOR OBERACKER: Hello there. And
15 thank you so much, Madam Chair.
16 And Commissioner, thank you too for
17 taking the time.
18 You know, we're one state -- I've
19 heard this throughout the pandemic from the
20 Governor. The rural region I represent was
21 forced to shut down even when most of my
22 counties had extremely low numbers of cases,
23 if any.
24 Now, with the vaccine being
300
1 distributed, my district is completely
2 forgotten. State-run sites are nowhere to be
3 found. No longer one state, I guess.
4 Here's a letter I received today from
5 a constituent in Bovina Center in Delaware
6 County that speaks very eloquently to the
7 situation.
8 "Dear Senator Oberacker: As of today,
9 there is no place for people over 65 to get
10 the vaccine anywhere in or near Delaware
11 County. Pharmacies are apparently no longer
12 getting the vaccine.
13 "The Delaware County Board of Health,
14 through the Department of Aging, was promised
15 100 vaccines, just to have the delivery
16 canceled. Bassett Hospital to date has held
17 two clinics with 100 shots available for
18 each, which was booked up in minutes.
19 "The only state sites that currently
20 have availability are restricted to zip codes
21 none of which -- none of which -- includes
22 Delaware County.
23 "I understand that the limited supply
24 and the weather are contributing to the
301
1 delay, but I do not understand why our rural
2 area is basically being ignored. We have a
3 very large population of elderly people who
4 were supposed to have priority and have been
5 virtually cut out of the vaccination program.
6 "Can you let me know what you are
7 doing to secure vaccines for the vulnerable
8 populations in our district, or at least let
9 us know when the vaccines might become more
10 readily available?"
11 Commissioner, what am I supposed to
12 tell my constituents?
13 COMMISSIONER ZUCKER: So with regards
14 to what to tell those who are elderly in your
15 district, I will say that the focus has been
16 on those over the age of 65. I understand
17 your concern that there's not a state-run
18 site there, and we can look into and see
19 what's the closest site.
20 Some of the challenges that one comes
21 up against when it comes to rural areas is
22 there's a distance to travel, and I recognize
23 that. That's one of the challenges in
24 upstate New York that we see.
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1 And then it comes back to, as you said
2 and I've said, a supply issue. And so once
3 we have more supply, we can get it out there.
4 Bassett Hospital, I'm happy speak with the
5 CEO of Bassett and see what else is
6 transpiring there or have our team that's
7 working on vaccines work on that and see what
8 things we can do working with Bassett's
9 outreach. Because I know that they have a
10 significant outreach into the community.
11 So let me get back to you on some of
12 that.
13 SENATOR OBERACKER: Commissioner,
14 as -- thank you. Thank you.
15 And as well as a businessman who deals
16 with materials management in my company, I
17 would make this recommendation. Could the
18 state just be worrying about procuring
19 vaccines? Could we have a plan in place
20 where we distribute those to the counties?
21 All right, we have our counties' health
22 departments and emergency services. From
23 there, they can be distributed to each and
24 every one of those fire departments in these
303
1 towns. And I'm telling you, it would be a
2 great way to get shots in the arms.
3 Thank you.
4 COMMISSIONER ZUCKER: And I know --
5 CHAIRWOMAN WEINSTEIN: Thank you --
6 COMMISSIONER ZUCKER: Just quickly, I
7 just -- I do know that we're working with the
8 communities on this. And let's see where we
9 are after the end of this weekend when more
10 vaccine's out there, assuming J&J is approved
11 and we get to that next step there. So
12 hopefully that will help increase supply.
13 SENATOR OBERACKER: Thank you.
14 CHAIRWOMAN KRUEGER: Thank you.
15 Assembly.
16 CHAIRWOMAN WEINSTEIN: We go back to
17 Assemblyman McDonald, who had an issue with
18 his video, I believe.
19 (Pause.)
20 COMMISSIONER ZUCKER: Audio now.
21 ASSEMBLYMAN McDONALD: There we go.
22 Now we're there.
23 COMMISSIONER ZUCKER: There we go.
24 ASSEMBLYMAN McDONALD: Sorry about
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1 that.
2 Dr. Zucker, it's good to see you.
3 For the first question, right off the
4 rope here, you mention in your written
5 statements about the great work done at
6 Wadsworth. And both Member Fahy and myself
7 and Senator Breslin are concerned that the
8 funding for Wadsworth was not included in the
9 proposed budget.
10 I don't know, do you have anything you
11 can add to that? We've gotten limited
12 information on what's happening. But
13 obviously, you know, Wadsworth is very
14 important not only to New York State but to
15 the country and it's a major impact here to
16 the Capital Region.
17 COMMISSIONER ZUCKER: Sure. So I just
18 had a conversation with our Budget Director
19 about this exact issue the other day. The
20 commitment is still there, the commitment on
21 the Governor's part and the commitment on the
22 administration's part, to build a new
23 Wadsworth Lab.
24 What we have seen with this pandemic
305
1 is that there is a new way of looking at how
2 we operate a lab, both the research aspect
3 and the clinical delivery aspect and all of
4 the partnerships that we have developed over
5 time. You know, Wadsworth has had many
6 partnerships with companies.
7 So we are moving forward on this. The
8 lab has been such a critical component of
9 managing this pandemic. As I mentioned,
10 literally a year ago this week the test that
11 came out for COVID-19, the first one outside
12 of CDC, was done at Wadsworth. I will tell
13 you it was Friday a year ago tomorrow that
14 that happened. And it changed the pace of
15 how testing was done. And then they also
16 work with all the other testing sites in the
17 nation.
18 And when -- we were talking earlier
19 about this genome sequencing and saying,
20 well, how do we know? That's because of
21 Wadsworth. That's how I heard this morning
22 about exactly what's going on. There have
23 been some labs out there who have said, All
24 we have is variant. I remember the first UK
306
1 variant that they thought they had, they
2 called Wadsworth. It wasn't.
3 So I am so thrilled with our lab that
4 we have. But it is still on the plan, we
5 just need to work it through the right way.
6 ASSEMBLYMAN McDONALD: Is it still
7 committed to the City of Albany?
8 COMMISSIONER ZUCKER: Yes.
9 ASSEMBLYMAN McDONALD: Okay, that's
10 important.
11 Another quick question, this goes back
12 to a meeting that you and I and a couple of
13 other people were in a couple of weeks ago.
14 We talked about HERDS data and the way it's
15 reported, we talked about SPARCS data and the
16 way it's reported. One's done by initials
17 and date of birth, one's done by full name
18 and date of birth, and that added to part of
19 the challenges of getting accurate
20 information.
21 One question I didn't think to ask at
22 the time, but since I've got you here, is the
23 department looking to rectify that so that we
24 have the same information being reported
307
1 going forward, so that way we can accurately
2 pull information when we need it?
3 COMMISSIONER ZUCKER: Sure. So as I
4 mentioned before, one of the things that will
5 come out of this pandemic, the silver lining,
6 is how do we deliver public health -- how do
7 we deliver care to patients, and also how
8 does the public health system work. And
9 there will be major changes as a result of
10 it.
11 One of it is to streamline how data
12 comes in, how we process data, how data
13 integrates with other data sets and data
14 pools. So we will address it. We have to be
15 sure that when we do this that we maintain
16 the patient's privacy. That's what we had --
17 and not to reiterate this, but when we
18 started this whole thing, we were getting the
19 data from the HERDS information and we just
20 wanted initials and age and what other
21 comorbidities because we were trying to
22 figure out how to manage it and figure out
23 what was this disease, who was getting it and
24 how do we manage it. We weren't as
308
1 interested in like what's their name and
2 other things, we just wanted to figure out
3 how to deal with it.
4 But going forward, this will be one of
5 the things that will come out of this. And
6 some of it -- you know, the MDS system is a
7 federal system. SPARCS is state, HERDS is
8 state, the ECLRS system is our lab system.
9 So we will work on this and figure out how to
10 do this.
11 ASSEMBLYMAN McDONALD: Thank you.
12 Thank you, Madam Chair.
13 CHAIRWOMAN KRUEGER: Thank you. And
14 it goes back to Senate.
15 Senator Todd Kaminsky.
16 I know you were with us a minute ago,
17 Todd.
18 SENATOR KAMINSKY: Can -- can you hear
19 me?
20 CHAIRWOMAN KRUEGER: Yes.
21 SENATOR KAMINSKY: Thank you.
22 Good afternoon, Doctor.
23 There have been numerous troubling
24 reports in the press and other places about
309
1 procurement fraud that was committed upon the
2 state when trying to get essential supplies
3 last year. And I'm wondering if it's
4 possible that we can get a full accounting of
5 what we think was -- of how New York was
6 defrauded, to what amount, and to what extent
7 New York is trying to recoup that, and what
8 steps we can take to make sure that doesn't
9 happen going forward.
10 COMMISSIONER ZUCKER: We can do
11 this -- we -- two parts to this one, all
12 right? One is we can -- we have been looking
13 at this, we have been looking at how to
14 recoup losses. Obviously that's in the
15 interest of the state and the citizens, the
16 residents of New York, obviously.
17 The issue is also that we were in a
18 situation early on where we were focused on
19 how do we provide the care that we needed,
20 and we searched everywhere to try to get the
21 necessary equipment -- the ventilators, the
22 PPE, the testing -- well, the testing we
23 started doing in the state, but even some
24 other tests that were out there, new rapid
310
1 tests or other ways to do testing. It was an
2 unbelievable time early on when we did not
3 have the information, we did not have the
4 public knowledge.
5 But I understand the issue about
6 resources that are spent, taxpayer dollars
7 that are spent, and to be sure we can recoup
8 that, and we are working on that. And a list
9 we can get together. I know people have been
10 working on it, and I'll find out from my
11 teams and others within the administration
12 how we can get that to you.
13 SENATOR KAMINSKY: Okay, thank you.
14 And with respect to the nursing home
15 question, moving forward to where we are
16 today, there have also recently been reports
17 that some of the latest updated findings are
18 troubling to some families about very low
19 numbers at nursing homes where a number of
20 people in the community, you know, may all --
21 (background noise) -- something, you know,
22 more than what may have been reported to take
23 place. For example, there was a February
24 20th New York Post story about a nursing home
311
1 in my district that says maybe three -- only
2 three people -- deaths are attributed to that
3 nursing home, when there are far more
4 families that know that's the case.
5 So as we stand here today, can you
6 give us some type of assurance or tell us
7 what families should want to know about how
8 the new updated numbers should be viewed, how
9 accurate they are, and what you and your
10 agency can do to make sure that whatever
11 numbers are out there are important and
12 accurate. As you know, a lot of these
13 families -- all of these families are
14 grieving, want to know that the information
15 is accurate and that they're obviously being
16 treated with transparency and honesty, and
17 some of these numbers appear to give them
18 concern.
19 COMMISSIONER ZUCKER: So the aspect of
20 what we do do at this point is obviously we
21 do the inspections and we take a look and see
22 if there's any -- if someone said, well,
23 there was only three deaths in that nursing
24 home but relatives say there were many more,
312
1 we have these on-site inspections.
2 And that's why we've done, as I
3 mentioned earlier, over 2400, with
4 enforcements of -- over a thousand
5 enforcements.
6 But going to your question about going
7 forward, which is where I think we should be
8 looking -- how do we move forward, what do we
9 need to do on this -- so we have put forth
10 some of the issues as the Governor has
11 mentioned in the budget and I've spoken about
12 before. But also it ties into your question
13 or Senator McDonald's question about the data
14 a little bit, I think, about these different
15 data pools where we get information. And we
16 are going to try to make sure that moves
17 smoother.
18 The issue -- this brings up this issue
19 of data and how you look at data and how you
20 verify data. And it is a complex process.
21 What you raised is the issue of how to make
22 sure that the data is precise. So when we
23 move forward, we will get that done.
24 SENATOR KAMINSKY: Thank you, Doctor.
313
1 And just a final question on the
2 hydroxychloroquine issue, on veterans and
3 veterans' homes. Can you give a definitive
4 statement about consent within those cases,
5 please?
6 COMMISSIONER ZUCKER: Sure. Sure.
7 So I -- and I've heard a lot about
8 this. Here's the situation with that. The
9 doctor-patient relationship is paramount.
10 And any therapy that's given to a patient has
11 to get approval by the patient or the
12 healthcare proxy of that patient.
13 The issue with the hydroxychloroquine
14 is at the point that it was given, the
15 hydroxychloroquine was considered a potential
16 therapy. That, along with azithromycin as a
17 combination, could be a therapy to improve
18 outcome. It turned out not to be the case.
19 There was a concern -- I know people
20 have thrown this out -- that there are
21 individuals who may have had, you know, heart
22 problems. Yes, the combination of those two
23 may, with somebody with a certain type of
24 abnormality on their EKG, in very rare
314
1 instances, very rare instances -- and I went
2 back and I looked at the literature a couple
3 of days ago, looking at this. There's
4 something called a QT interval, it's part of
5 that little squiggle on your EKG -- we don't
6 have to go into the details on that.
7 But the combination of those two could
8 have been a problem. But it's extremely
9 rare.
10 It was the doctor-patient
11 relationship, the decision was made by the
12 patient. And then when we realized that
13 hydroxychloroquine was not helpful, we
14 stopped giving it -- long, actually, before
15 the federal government, the FDA said not to
16 give it. And we also looked at this issue to
17 be sure that there were no individuals
18 harmed.
19 So I know this has come up, but this
20 is one of the those things that I say there
21 are facts out there, but the people are just
22 hearing something and they believe that, and
23 not the facts.
24 CHAIRWOMAN KRUEGER: I let you go over
315
1 because that was a public health question.
2 Thank you very much. Assembly?
3 CHAIRWOMAN WEINSTEIN: We go to
4 Assemblywoman Glick.
5 ASSEMBLYWOMAN GLICK: Okay. They
6 won't let me start my video. Which is fine
7 because -- oh, there we go -- because I may
8 have to cut it off if I can't be heard.
9 Dr. Zucker, two things. But before I
10 start, let me say that I agree with
11 Senator Hoylman that Manhattanites need at
12 least a set-aside -- I don't think we need a
13 whole new site. Javits is large. But
14 something needs to be on the website that
15 allows for people to click off a Manhattan
16 zip code so that a set-aside, whether it is
17 10 percent or 20 percent of the vaccines,
18 could go to Manhattanites at that center.
19 I don't think we have to reinvent the
20 wheel and create a new physical site. I
21 don't think that's worth the time, money and
22 effort.
23 There is an Article VII that would
24 allow for out-of-state practitioners to
316
1 participate in telehealth. It's sort of a
2 license -- a licensure, an interstate
3 licensure agreement. Which I think is
4 concerning, since people may not know whether
5 or not -- you know, New York has very
6 rigorous licensure, which makes us a place
7 where people come. And it is concerning to
8 think that we would be having folks doing
9 telehealth whose qualifications might not be
10 the same as our New York State practitioners.
11 That's number one. And number two,
12 there is an e-prescribed exemption change
13 which I think requires veterinarians to
14 become e-prescribers. That might not be a
15 problem in my district, but in a lot of the
16 state we have a lot of trouble with
17 broadband. So on that basis, that could be a
18 serious problem, particularly in rural
19 communities.
20 But in addition, a lot of folks --
21 like myself and other pet owners -- don't go
22 to the local pharmacy, which is more
23 expensive, but use something like PetMeds.
24 So you're asking consumers to pay more for
317
1 medications for their animals at a time when
2 people are already stressed.
3 And then the last thing is the
4 elimination of the Empire Clinical Research
5 Investigator Program. I don't know how much
6 you're saving, but it does seem to be a small
7 amount for what could be a very important
8 thing, especially since we're trying to
9 support biomedical research.
10 Could you address the interstate
11 licensure and e-prescribe?
12 COMMISSIONER ZUCKER: Let me see if I
13 can do this quickly.
14 So on the issue of telehealth, yes, I
15 recognize this is a critically important
16 issue overall. And we do want to make sure
17 there is -- that the physicians who prescribe
18 or use telehealth are clearly meeting the
19 standards of the state.
20 The Governor and all of us have been
21 looking at ways to strengthen the Office of
22 Professional Medical Conduct, which runs
23 through my department.
24 E-prescribing and the thing regarding
318
1 the exemption, I'm going to get back to you,
2 I have to look into that.
3 Regarding the elimination of the
4 investigator program, I -- over the years I
5 have tried, you know, to keep that in the
6 budget, and we've worked on that. But we are
7 in a very tight budget year. And I looked at
8 where some of that -- those investigations
9 can -- is there other ways for them to
10 receive the funding they need.
11 This is a tough one. I went through
12 this the other day thinking about this
13 {unintelligible} -- well, what else can we
14 do? So I recognize that's a challenge.
15 And the last one, the broadband
16 issue -- just as an aside, this is not the
17 Department of Health, but I know the Governor
18 has a strong commitment to making sure that
19 the state has excellent broadband and that we
20 can get to every area of the state. That's
21 obviously a different department. But I
22 know I heard him speak about that at one
23 point.
24 ASSEMBLYWOMAN GLICK: Well, I know.
319
1 And the Governor says that it's 98 percent
2 coverage. And I can tell you personally that
3 when I am upstate, I have to shut off the
4 video, I can't get connected.
5 And if you're going to ask
6 e-prescribers who are vets who are out at
7 farms dealing with large animals to get
8 online to prescribe for their animal
9 patients, it's not going to happen.
10 And there are going to be consequences
11 that are -- it's a small -- I think it's a
12 ridiculously small amount of money, but there
13 has been some money associated as a savings.
14 And I think that that will cost pet owners
15 much more than the state will save. If they
16 save anything.
17 CHAIRWOMAN WEINSTEIN: Thank you.
18 We'll go to the Senate.
19 CHAIRWOMAN KRUEGER: Thank you very
20 much. Oops, sorry, lost me for a second.
21 And our next Senator is
22 Senator Helming.
23 SENATOR HELMING: Thank you,
24 Senator Krueger.
320
1 Dr. Zucker, thank you for your
2 testimony today.
3 There have been a tremendous number of
4 questions that have touched on topics that
5 are very important to me -- getting kids back
6 to school, reuniting loved ones who are in
7 nursing homes, strengthening mental health
8 services, and doing a better job of providing
9 access to the vaccines to people living in
10 rural communities.
11 But I wanted to go back for a moment
12 and talk about the nursing homes and the
13 spread of COVID-19 in nursing homes. It
14 seems to me that the administration
15 continually points the fingers back to the
16 nursing homes themselves, and even sometimes
17 to the staff. You talked about it in nicer
18 language today, using nicer language, calling
19 it inadvertent spread. But Dr. Zucker, we
20 all know that there was a lack of access to
21 PPE, to tests and so much more prior to
22 the -- at the start of the pandemic and
23 throughout the pandemic.
24 But it just -- it makes me wonder what
321
1 the heck was DOH inspecting and evaluating?
2 You talked about the many inspections that
3 DOH was conducting. Well, were you looking
4 to make sure that the facilities had adequate
5 infectious control plans and that protective
6 equipment was in place? Because it doesn't
7 feel like it to me.
8 Also you mentioned, you know, about
9 going -- where do we go from here, how do we
10 do a better job, and you keep talking about
11 this policy language that is going to be
12 included in the budget. You're talking about
13 proposing increased penalties and heightened
14 enforcement mechanisms that will really
15 penalize these nursing homes and
16 long-term-care facilities.
17 And we all know there are bad actors,
18 and I certainly want those bad actors to be
19 held accountable. But it's just frustrating
20 to me, because it's my understanding that not
21 a single facility was under receivership.
22 And I don't understand that. It suggests to
23 me that maybe the department is not using --
24 or could better utilize the tools currently
322
1 available.
2 And it makes me wonder, do we need
3 these additional penalties, or does the
4 department really need to step up and do a
5 better job.
6 COMMISSIONER ZUCKER: So we -- I'm
7 sorry --
8 SENATOR HELMING: I want to continue,
9 because staffing is a concern. Right? We
10 hear about it all the time. Dr. Zucker,
11 again, when that subject came up earlier, you
12 pointed back to the budget and you talked
13 about how there's patient over profits,
14 paying nurses more. I think that's great,
15 don't disagree with it.
16 But in a report that you issued back
17 in August 2020 you identified -- or you had
18 Cornell and others identify there are many
19 more issues outside of increasing pay. We
20 have a workforce development issue. I want
21 to know what you're doing about it, where is
22 that outlined, how do we get more people in
23 the pipeline? We don't have enough trainers,
24 right, for some of these RN higher-degree
323
1 programs. There's just so much more that I
2 think needs to be done.
3 I'm going to keep talking because on
4 the issue of communication and transparency
5 throughout this pandemic, as a person who
6 represents more than 300,000 people, I have
7 heard from you twice. You've done two
8 presentations to the Minority Conference.
9 Each time you started with a long PowerPoint
10 and you had limited availability to us. We
11 couldn't ask you questions.
12 It's a shame that this type of
13 conversation has to happen during a public
14 hearing on the budget. As a leader, I don't
15 understand why you can't hold informational
16 sessions with Democrats and Republicans
17 alike, why we have to be segregated into
18 these different groups. It's wrong. You're
19 a leader, you need to get this public health
20 information out to us so we can share it with
21 our constituents. It will calm a lot of
22 people down, right, if we're more transparent
23 and we communicate better.
24 I do want to just -- I don't see the
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1 clock, but in my Senate district and
2 throughout New York State we have an issue
3 with local fire departments that offer EMS
4 services where the private service is not
5 available. They're under a great deal of
6 strain both financially and from a
7 recruitment perspective -- again, going back
8 to workforce issues.
9 Are you aware of this issue? And I
10 want to know if the department is taking any
11 actions to quantify this problem and to
12 develop some long-term solutions. Because
13 when people are getting sick or -- they don't
14 have ambulance service available to them.
15 COMMISSIONER ZUCKER: So on some of
16 those issues, I'll quickly try to address
17 them. I'm going to start with the last one,
18 the EMS issue.
19 We are working with the EMS community.
20 Several years ago they raised some of the
21 issues you've raised just now from your
22 district, but also for across the state, to
23 make sure we improve the workforce. And I
24 know that's been a challenge. I can get you
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1 more information in writing afterwards.
2 Regarding communicating, yes, we
3 have -- I have personally communicated on
4 many of these issues through webinars and I'm
5 happy to continue to do so. From the
6 standpoint of this pandemic, I don't know how
7 many times I've been out there speaking on
8 webinars on many of the different issues that
9 we have spoken about this morning and
10 afternoon.
11 On the issue of staffing, yes, the
12 Governor has put forth -- and this is one of
13 the key parts of nursing home reform, to make
14 sure that there is patient care over profit.
15 And as I said earlier, patient care comes to
16 the issue -- goes directly to the issue of
17 staffing. And there's percentages of how
18 much is going to go to staffing. I can go
19 through that. It's a 40 and -- 70 percent
20 for patient care and 40 percent to staffing.
21 But I want to be respectful of time.
22 SENATOR HELMING: But our nursing
23 homes don't have people they could hire. Our
24 hospitals don't have --
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1 COMMISSIONER ZUCKER: We're working on
2 that.
3 And with regards to the PPE, there's
4 23, 24 million PPE that went out there. And
5 we monitor this on a regular basis every
6 single day. But you have to remember, early
7 on --
8 SENATOR HELMING: You and I talked
9 about this back in August during
10 the hearing --
11 CHAIRWOMAN KRUEGER: And you're going
12 to continue the conversation, but not right
13 now because the time has been on zero for
14 you.
15 COMMISSIONER ZUCKER: Okay. Thank
16 you.
17 SENATOR HELMING: Thank you.
18 CHAIRWOMAN KRUEGER: Thank you.
19 Assembly.
20 CHAIRWOMAN WEINSTEIN: We go to
21 Assemblyman Jensen, three minutes.
22 ASSEMBLYMAN JENSEN: Thank you very
23 much, Madam Chair.
24 Thank you, Dr. Zucker.
327
1 As I'm sure you're aware, there's
2 currently efforts underway to put into
3 statute mandatory resident care hours in
4 nursing homes and staffing ratios in
5 hospitals. DOH's own report from this past
6 August stated that this is going to cost
7 upwards of $4 billion in increased staffing
8 costs for hospital systems and nursing homes.
9 First of all, my first question is:
10 Do you support these sort of mandates in
11 facilities?
12 Secondarily, is there in this year's
13 budget a strategy from the state to help
14 these entities with those increased costs,
15 especially when our not-for-profit nursing
16 homes are operating on margins of less than 1
17 percent?
18 So those are -- those are my questions
19 to start with.
20 COMMISSIONER ZUCKER: So I -- I
21 support the need that we have to have more
22 staff. I think that a specific ratio -- I
23 don't think that that's the way to go. But
24 we need to get more staffing.
328
1 And as I just mentioned, this was one
2 of the issues that the Governor has put forth
3 in the bigger picture of nursing home
4 reforms. I support that.
5 Regarding the costs, I'll take a look
6 at the budget and see what else -- how else
7 to address it. But as you know, this is a
8 negotiation, right? And so when the budget
9 negotiations happen, I would turn to all of
10 you to discuss that with our team when this
11 is at the table and on the table. I'm not
12 given the opportunity to actually sit there,
13 as you know, in the process of how the budget
14 takes place. But I certainly support that.
15 ASSEMBLYMAN JENSEN: With respect,
16 Commissioner, you've certainly stated over
17 the past year -- you have a very large voice
18 with the Governor. So certainly if you
19 believe that that is a priority, I would
20 assume, as you've done with other issues, you
21 would bring that up as something that he
22 should take attention to.
23 Secondarily, you talked about
24 staffing, that we need more staffing. I one
329
1 hundred percent agree. So as the leader of
2 the Department of Health, what is your plan
3 to help hospitals and nursing homes attract
4 more staff, specifically RNs, LPNs and CNAs?
5 COMMISSIONER ZUCKER: So there's two
6 parts to that. One is the nursing home part
7 and one's the hospital part. They interact,
8 but I will tell you that the Governor has
9 made a commitment, as I said before, saying
10 he won't sign the budget unless there's
11 certain issues of reform in the nursing
12 homes, and staffing is part of it. So that's
13 the one part.
14 The hospital issue -- well, actually
15 the hospital issue and the nursing home issue
16 in one way tie together, which is the
17 professional -- the need to increase the
18 amount of people going into this field and
19 the professional growth and development that
20 needs to take place. It's not just the
21 nurses, the RNs, but it's of course the
22 entire healthcare delivery system and all of
23 those who are the healthcare workforce.
24 And we need to do that. And we need
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1 to do that -- sorry. Yes, go ahead.
2 ASSEMBLYMAN JENSEN: So as a medical
3 professional, as a leader in the health
4 field, how would you -- how would you attract
5 more CNAs specifically to facilities?
6 COMMISSIONER ZUCKER: I think what you
7 need to do is you need to develop a system
8 that gives you professional growth and not
9 have someone feel that they go into this
10 job -- and particularly I could use the
11 example of someone who's a home health aide.
12 Right? They go into that job, and then when
13 a different job becomes available and it's
14 giving you more of an increased salary, you
15 say, well, I'm not going to do the home
16 health aide, I'm going to jump to that job.
17 And so you need to develop a system
18 where they have more -- a little bit more
19 independence. And I've spoken to the home
20 healthcare agencies about this specific
21 thing. And I'm going to tell you on a
22 personal level I'm very familiar with this,
23 because my father was at home with many home
24 aides who were helping him -- in the dozens,
331
1 over the years. And I said, How do you give
2 them a little more independence to make
3 decisions, the healthcare decisions or
4 clinical decisions? And I said we need to
5 develop a system that's more efficient and
6 more effective and keep people there. And
7 some were better than others, and we need to
8 make sure to take those who are better and
9 put them into a leadership role to bring
10 others in and show that this is a
11 professional development aspect, not just a,
12 quote, job that they will then move to
13 somewhere else to -- where there's more
14 money.
15 ASSEMBLYMAN JENSEN: Thank you,
16 Commissioner.
17 COMMISSIONER ZUCKER: I mean, I guess
18 the one thing I will add is, you know, I'm --
19 we're talking about this situation, but the
20 fact is that these healthcare workers on the
21 front lines were the ones who were out there
22 who were managing the pandemic and out there
23 taking care of people on the front line. And
24 I applaud them all for what they did.
332
1 And they put their own lives at risk
2 and their family's lives at risk because, you
3 know, if they got sick and they brought it
4 home, early on when we didn't even know how
5 to protect people, they may have cost the
6 lives of others. And perhaps that happened.
7 Because I know of my colleagues who died from
8 COVID who worked in a hospital. So I hear
9 you.
10 CHAIRWOMAN WEINSTEIN: Thank you,
11 Commissioner.
12 We're going to go to the Senate now.
13 CHAIRWOMAN KRUEGER: Thank you very
14 much. And the next Senator is Senator Phil
15 Boyle, from Long Island, if he's still with
16 us.
17 Are you here, Phil? Ah, there you
18 are.
19 SENATOR BOYLE: Thank you,
20 Madam Chair. Thank you.
21 And thank you, Commissioner.
22 Commissioner, two quick questions.
23 One is regarding the March 25th directive. I
24 was hearing from constituents in the days
333
1 immediately after that, very concerned, they
2 had parents in nursing homes and
3 COVID-positive patients were brought back.
4 They told me that the nursing home officials
5 had said that they were directed not to
6 discriminate against COVID-positive patients,
7 and two of them mentioned the Ryan White Act.
8 And most people would not know what
9 the Ryan White Act is. I just happen to know
10 because I worked on Capitol Hill when it was
11 passed. Obviously HIV and COVID are
12 contracted very differently.
13 And so the idea of discriminating
14 against COVID-positive patients, did that
15 come from your office? Because it doesn't
16 seem like that's a medical decision. Did
17 that come from the Governor's office or some
18 other entity?
19 COMMISSIONER ZUCKER: Let's just talk
20 about this for one second. The guidance said
21 that you cannot deny admission, and that does
22 not equal you must accept. And if they felt
23 that the hospitals -- you know, if the
24 nursing homes felt that -- they could have
334
1 just said, I cannot accept that patient. So
2 that just -- we'll put that, you know, just
3 on the table there so you understand that
4 issue.
5 The issue of the HIV -- you know, and
6 I -- I -- I know the whole history of HIV
7 because, you know, when I was a medical
8 student, we didn't even know about this. It
9 was the beginning of HIV. And I watched how
10 there was issues of discrimination that was
11 out there over the course of the early days
12 of HIV and the early years of HIV.
13 So that is sort of the issue about not
14 discriminating. I'm not sure what you've
15 heard about sort of saying, well, this is
16 exactly why you want to do this with COVID.
17 The issue was you can't discriminate against
18 somebody because you can't sort of say, Well,
19 I don't want the person with COVID. Because
20 prior to this pandemic, there were patients
21 with C. auris, which is a fungal infection,
22 and a lot of nursing homes may have said --
23 or people said -- I don't want the patient
24 with C. auris, I don't want something
335
1 spreading in my facility. And you can't
2 discriminate against people, particularly
3 when you need to take care of them.
4 And the law says, and CMS says it,
5 that, you know, there's -- you -- and the CDC
6 says it. And this happened long before the
7 pandemic. These were the rules that were in
8 place long before the pandemic. When we put
9 forth that guidance, we were using the -- we
10 were using our -- the knowledge we had from
11 our federal partners. And I've said that
12 before. And I know people sometimes say,
13 Well, you're just saying, well, the federal
14 government said that --
15 SENATOR BOYLE: Okay, Doctor, thank
16 you. I appreciate your answer very much. I
17 just want to get another quick question, very
18 quickly.
19 The CDPAP program is very popular
20 among my constituents. Your department just
21 denied a large number of very qualified
22 agencies, and my constituents are concerned
23 about it. Why did you decide to deny and
24 close the majority, I believe, of the large
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1 CDPAP agency providers?
2 COMMISSIONER ZUCKER: Donna, do you
3 want to take that?
4 MEDICAID DIRECTOR FRESCATORE: Yeah,
5 I'm happy to do that quickly.
6 So not in last year's budget but the
7 budget before, the department was given the
8 authority to selectively contract with fiscal
9 intermediaries. There were some 400 or so in
10 operation. We issued a competitive process.
11 The applicants were scored against criteria
12 consistent with state law about their
13 experience, their geographic accessibility,
14 their ability to -- their cultural and
15 linguistic competency, their ability and
16 their demonstrated record of following rules
17 and requirements, including labor laws.
18 We did that competitive process. We
19 announced the awards on February 11th. I was
20 asked a question earlier -- there was a
21 debriefing process for organizations that
22 were not selected to -- so that we can --
23 they can learn more about where their
24 proposal was viewed as strong and where it
337
1 was viewed as not as strong.
2 Look, there's 139,000 people in the
3 Consumer-Directed Program. This selection
4 gives every consumer choice -- in fact, the
5 choice of over 50 FIs in New York City and in
6 no upstate county will a consumer have a
7 choice of less than 24, I believe. So this
8 selection achieves the objectives and the
9 requirements of the state law.
10 CHAIRWOMAN WEINSTEIN: Thank you.
11 We'll go back to the Assembly now, to
12 Assemblyman Anderson.
13 ASSEMBLYMAN ANDERSON: Thank you,
14 Chairwoman Weinstein, and thank you,
15 Chairwoman Krueger.
16 I have several questions, but I want
17 to make a comment first. As a new member,
18 we, you know, wanted to question you,
19 Dr. Zucker, a couple of months back, I think
20 it was December or January, to ask you some
21 critically important questions around the
22 issues of nursing homes, around the issues of
23 transparency overall during the COVID-19
24 response.
338
1 Unfortunately, you were very evasive
2 and you did not answer a lot of our
3 questions, and we were left off that call
4 with many questions unanswered. But I'm
5 going to try my best to get as many questions
6 in in my little two minutes that I have left,
7 in making up for that meeting we missed.
8 There's a lot of -- there was a lack
9 of coordination, lack of transparency with
10 the nursing home response. And I do want to
11 ask, going forward, do you support a safe
12 staffing ratio for many of our nursing homes
13 and hospitals that were overloaded during the
14 height of the COVID-19 pandemic last year?
15 That's my first question.
16 The second question is in the
17 Executive Budget proposal there are
18 significant hospital reductions that are
19 being proposed by the Executive. I'm sure
20 that you and the Executive had a discussion
21 about some of these proposals. But one
22 that's going to be particularly hurtful and
23 hurtful obviously in the context of COVID-19
24 and the response that we've had to do around
339
1 COVID-19, is the VAPAP reduction, $99 million
2 in reductions to VAPAP, which provides
3 critical, critical financial support to our
4 safety-net hospitals in Black and brown
5 communities, like the one I have in my
6 district, St. John's Hospital, which now I
7 believe your department is requiring them to
8 reduce their bed size, even though they've
9 received thousands of patients during the
10 height of COVID-19.
11 In fact, we received the first
12 COVID-19-positive patient in all of Queens at
13 St. John's Hospital. Now we're proposing
14 additional cuts on that infrastructure, which
15 I think is incredible.
16 But it also speaks to my third
17 question, which is the root of why COVID-19
18 was so pervasive in Black and brown
19 communities, is because your agency lacked
20 the ability to address health inequities.
21 Your zip code should not determine your
22 quality of life or health outcomes. But the
23 reality is if you live in Far Rockaway, if
24 you live in Jamaica, if you live in the
340
1 South Bronx and you have those zip codes --
2 and some part of Brooklyn as well -- if you
3 have those zip codes, it determines your
4 health outcomes.
5 So I want to know, in my third
6 question, what is your agency going to do
7 to --
8 CHAIRWOMAN WEINSTEIN: Better leave
9 some time, sir.
10 ASSEMBLYMAN ANDERSON: I've got
11 30 seconds. I have 30 seconds.
12 (Laughter; overtalk.)
13 ASSEMBLYMAN ANDERSON: And my third
14 question --
15 CHAIRWOMAN WEINSTEIN: Okay, he's not
16 going to have time to answer --
17 ASSEMBLYMAN ANDERSON: Right. And my
18 third question, really quickly, what do you
19 plan to do to address health inequity in
20 {inaudible}.
21 COMMISSIONER ZUCKER: So I'll answer
22 that. First, I would take issue on the issue
23 that the department has not focused on health
24 inequities. This has been one of the high
341
1 priorities of the department all along.
2 The issue of COVID being increased in
3 the Black and brown communities, I concur
4 with what you say. And we've looked at that.
5 I've said all along that these health
6 inequities will be addressed, because they've
7 been -- you know, they have been uncovered
8 even further.
9 It's not just the Department of
10 Health. This is an issue of a societal issue
11 that needs to address it. So we will tackle
12 it from our front, from the Department of
13 Health and from government, at least state
14 government. And that's one issue.
15 So I -- you can -- you have my word on
16 that. And we've been working on this for a
17 long time, on health inequities in many
18 different areas.
19 On safe staffing, I've already
20 answered that question regarding what the
21 Governor's going to -- how to address that
22 with regards to the nursing homes.
23 With regard to the 99 million on
24 VAPAP, Donna, do you want to tackle that one?
342
1 MEDICAID DIRECTOR FRESCATORE: Yeah, I
2 think I would just quickly say, being
3 respectful of time, that, you know, as I said
4 before, we worked -- the department and our
5 colleagues worked, you know, with all of the
6 hospitals and facilities that are essential
7 and in need of immediate cash assistance.
8 And the reduction in the budget
9 actually is a funding that was available but
10 is not needed, for a number of different
11 reasons. So that's what it is. There's a
12 commitment for VAPAP in the federal fiscal
13 year '22 budget.
14 CHAIRWOMAN WEINSTEIN: Thank you.
15 So we're going to move on to the
16 Senate now.
17 CHAIRWOMAN KRUEGER: Okay. Thank you
18 very much.
19 And our next Senator is Senator -- oh,
20 excuse me. I believe it is Senator Brouk.
21 Yes, it is Senator Brouk.
22 Are you with us, Samra?
23 SENATOR BROUK: I'm here.
24 CHAIRWOMAN KRUEGER: Hi.
343
1 SENATOR BROUK: Can you hear me, all?
2 Okay, we did it. Thank you so much,
3 Chairwomen.
4 I'm happy to be asking these questions
5 today. I want to start quickly by just
6 having it on the record, in addition to how
7 many other people have said it today -- I
8 think it's illogical and unconscionable that
9 we are sitting in a global health pandemic
10 and that there is even a question of cutting
11 much-needed funding for healthcare. But
12 that's not what we're going to go into today,
13 because I could fill a book with my thoughts
14 about making cuts when there are dire needs.
15 I want to talk about something that is
16 really affecting the community here in
17 Rochester, and that is the changes to the
18 340B program. I want to tell you what that
19 means for the Rochester area. That's going
20 to affect nine Federally Qualified Health
21 Centers. They serve 140,000 patients. In a
22 relatively small city, that is a lot. They
23 will lose a minimum of $11.5 million in
24 much-needed funding necessary to function.
344
1 These are clinics like Jordan Health,
2 Trillium Health -- which is a Ryan White
3 clinic -- and our safety-net hospitals
4 through University of Rochester and
5 Rochester Regional Health.
6 I'm receiving emails, I'm receiving
7 calls. Just now I received an email
8 begging -- from the CEO of one of these
9 organizations literally begging me to help
10 stop this, because these are the folks who
11 are feeding, housing, giving transportation
12 to low-income families, communities of color,
13 and people living with HIV -- all of whom are
14 the folks who have had disproportionately
15 negative effects because of COVID-19. And at
16 this time we are going to make their lives
17 harder and make it harder to get the care
18 they need.
19 So my question is how is this the
20 right time to move forward with cuts like
21 this that will so negatively affect our
22 communities?
23 COMMISSIONER ZUCKER: Donna, do you
24 want to address the 340B?
345
1 MEDICAID DIRECTOR FRESCATORE: Yeah,
2 certainly. So, you know, we touched on this
3 just slightly before.
4 So we -- I think we understand and we
5 appreciate -- I've talked to many FQHCs, many
6 340B providers over the course of the last
7 12 months, since the pharmacy carve-out was
8 enacted, and we understand and we appreciate
9 the very valuable services.
10 The question is under the current way
11 that 340B is funded -- it's by excess
12 reimbursement from the managed care plans
13 over and above the cost of prescription
14 drugs, from which some report that 50 percent
15 of that excess is taken by third-party
16 administrators. It's not because the FQHC is
17 doing anything wrong; they need to get the
18 prescription to one of their patients.
19 So the Executive's approach is
20 different. It says let's be transparent
21 about how much Medicaid pays for drugs, and
22 let's set up direct funding to go to the
23 Federally Qualified Health Centers, the Ryan
24 White 340B providers, and others that are
346
1 providing these services. As opposed to
2 having it in these very opaque kind of
3 pharmacy reimbursement structures that --
4 SENATOR BROUK: Donna --
5 MEDICAID DIRECTOR FRESCATORE: --
6 quite honestly, the federal government's
7 looking at as well.
8 SENATOR BROUK: Let me finish really
9 quickly. Sorry, I didn't mean to interrupt
10 you, but time is running out.
11 But I just -- the answer I'm looking
12 for here is how it's helpful to these
13 providers to not have it. Like before, they
14 had a more direct payment -- now those
15 savings are going through the state. And so
16 that is I think -- that does not make logical
17 sense when folks are saying that they need
18 that money and that not having that money and
19 that the reimbursement fund that's set up in
20 this proposal will not fully make -- fill
21 that hole.
22 And I know I'm out of time. So if you
23 wanted to follow up on written, that's fine.
24 Thank you.
347
1 MEDICAID DIRECTOR FRESCATORE: We'll
2 do that.
3 CHAIRWOMAN KRUEGER: You have many
4 people asking about that program, Donna. So
5 anything in writing that helps us see the
6 argument that I don't think we're seeing is
7 fine. Thank you.
8 Assembly.
9 CHAIRWOMAN WEINSTEIN: Assemblywoman
10 Miller.
11 ASSEMBLYWOMAN MILLER: Hi. Can you
12 hear me?
13 CHAIRWOMAN WEINSTEIN: Yes, Missy.
14 ASSEMBLYWOMAN MILLER: Okay. Thank
15 you very much, Chairs.
16 And hello, Dr. Zucker.
17 You know, I'm just going to ask my
18 questions up front, and in case there's not
19 enough time I'm going to ask you up front to
20 please reply to any of my questions
21 afterwards, either by email or if we can
22 actually ever have a conversation, I would
23 appreciate that.
24 First, I hear you say repeatedly that
348
1 you're very happy to continue the
2 conversation, to have a conversation, but I
3 don't know if you realize how hard it is to
4 actually have a conversation with you. I've
5 tried very hard several times and sent you
6 emails and I don't even get a response. If I
7 really need a direct response, I'll contact
8 Erin or -- but it is very difficult to reach
9 you.
10 That being said, I'm just going to ask
11 my questions. We've talked a little bit
12 about CDPAP and a lot of my colleagues have
13 asked some of the questions, but I'm
14 curious -- the process of awarding the
15 remaining 68 FIs, as Chairman Gottfried had
16 alluded to, it seemed a little similar to the
17 medical marijuana selection process of ROs.
18 It just doesn't seem that the ones -- the
19 companies that have a history of wage and
20 hour violations or Medicaid fraud, some don't
21 have the financial means to carry payroll,
22 those were awarded the contracts, but not
23 some of the FIs that have been, you know,
24 serving the CDPAP population for so many
349
1 years successfully.
2 So I'm curious, you know, what that
3 actual process was. It doesn't seem to be
4 very transparent.
5 I'm also asking the intended goal of
6 the fiscal intermediary authorization process
7 was to ensure the department has a record of
8 overseeing those qualified FI providers. But
9 the Legislature never authorized or directed
10 the Department of Health to reduce the number
11 of FIs so significantly. And I have a lot of
12 concerns that that drastic reduction will
13 cause some kind of a bottleneck as
14 everybody's trying to streamline their -- you
15 know, the closed FIs into the remaining FIs.
16 And the people who would suffer would
17 be those not getting their services because
18 their aides aren't registered yet or the
19 paperwork isn't complete.
20 So those are two concerns I have.
21 Then last -- well, two more. On COVID, as
22 far as reopening schools, reopening
23 businesses, can you define what is an
24 acceptable risk of transmission for schools
350
1 and businesses, and what mitigation
2 strategies will accomplish that? Because we
3 really do need to get our kids back in school
4 five days a week, all of them.
5 And then lastly, we've talked about --
6 everybody's asked about the turnover rate.
7 It's extremely high, especially in home care
8 agencies. Why are we cutting by 50 percent
9 the home care worker recruitment and
10 retention funds? This more than ever is now
11 when we need to recruit more help.
12 So those are my questions. I see I've
13 used up my time, so I would appreciate a
14 response directly by email or phone. Thank
15 you.
16 COMMISSIONER ZUCKER: Okay, we will do
17 that.
18 CHAIRWOMAN WEINSTEIN: Yes. And
19 Dr. Zucker, if you could share that with
20 Senator Krueger and myself, we'll make sure
21 the other members have access to that.
22 Senator Krueger.
23 CHAIRWOMAN KRUEGER: Thank you.
24 You may need a few speechwriters to
351
1 help you get all of this done in a reasonable
2 time period.
3 Next up is -- oh, he's been very
4 patient all day -- George Borrello, Senator
5 George Borrello.
6 SENATOR BORRELLO: Thank you so much,
7 Chair Krueger. Thank you so much. I
8 appreciate it.
9 Dr. Zucker, thank you for being here.
10 I want to follow-up on the small business
11 situation. The hospitality industry has been
12 devastated by this pandemic and the lockdowns
13 have been unfortunately far worse. By your
14 own data -- which I'm questioning to begin
15 with -- your own data, only 1.4 percent of
16 infections are coming from restaurants, and
17 yet these lockdowns and restrictions
18 continue.
19 Just as we thought we were kind of
20 getting out of the woods, you released
21 information on guidance on special events,
22 things like weddings. And at a wedding you
23 cannot have people that are unrelated sitting
24 at the same table, according to the
352
1 Department of Health guidance that we
2 received. However, at a restaurant, you can
3 have 10 unrelated people sitting at the same
4 table.
5 What science are you relying on to
6 determine that people at a wedding have to be
7 related but not at a restaurant? That's my
8 first question.
9 COMMISSIONER ZUCKER: So part of
10 this -- you have to look at the guidance --
11 let me see if I can explain some of this to
12 you on the restaurants and the way things are
13 set up.
14 The environmental issues come into
15 play as to why we -- the speed at which we're
16 opening different facilities and restaurants
17 particularly, particularly downstate. I'm
18 just going to bring up some points which I've
19 heard that you basically have put a light
20 on --
21 SENATOR BORRELLO: Well, and I have a
22 real basic question. How are 10 people
23 sitting at a table in a restaurant different
24 than 10 people sitting at a wedding? Which,
353
1 by the way, could be the same restaurant.
2 COMMISSIONER ZUCKER: Well, at a
3 wedding of 500 people, let's say, or 300
4 people that are interacting, you have a lot
5 more interactions among a lot of different
6 people there. Right? And so you run the
7 risk of a significant problem.
8 I will just personally tell you a year
9 ago in January, up in New Rochelle before
10 this all began, I was at a wedding with 500,
11 600 people and I saw the amount of
12 interaction that people had at that point in
13 time, and I said to myself, Imagine if this
14 COVID issue was just one month later -- or
15 the wedding was just one month later, the
16 amount of interaction you would have had with
17 all those different people.
18 So that's the difference, right?
19 SENATOR BORRELLO: Right, but I'm just
20 saying it's not -- they're limited to
21 150 people, first of all, so it doesn't make
22 any difference. And I apologize, I don't
23 mean to cut you off, but I have a short
24 period of time.
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1 Here's my other question. My wife and
2 I both had COVID. And luckily we recovered,
3 but we spoke with contact tracers. The
4 contact tracers said -- asked us, you know,
5 do you know where you contracted COVID, and
6 we said no. And then they said, Well, have
7 you been at restaurants? Yes. Have you been
8 in stores? Yes.
9 My question is, how can your contact
10 tracer data be accurate when you don't have a
11 category for "unknown"? I have to believe
12 that most people cannot pinpoint the point at
13 which they actually contracted COVID, yet
14 your data -- and there is no option for
15 contact tracers to hit "unknown." How do you
16 justify this data, which you're using to
17 determine the life and death of businesses
18 right now, when you don't have an actual
19 category for "unknown?"
20 COMMISSIONER ZUCKER: Well, we've
21 reached 85 to 90 percent of people. We've
22 done about 840,000 contacts, so somewhere in
23 that range. We have about 8,000 or so
24 contact tracers.
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1 This is the hard part of contact
2 tracing; you have to sort of try to get as
3 much information as you can as quickly as you
4 can, and you have to try to track the
5 individuals who are positive or
6 individuals -- better to say individuals who
7 have been exposed, to be sure that they're
8 not positive.
9 SENATOR BORRELLO: So data -- the
10 contact tracers are just guessing, is really
11 what you're saying, that they don't --
12 COMMISSIONER ZUCKER: No, they're not
13 guessing.
14 THE MODERATOR: Time.
15 (Overtalk.)
16 COMMISSIONER ZUCKER: No, they're
17 doing --
18 SENATOR BORRELLO: But there is no
19 "unknown." What about -- I did -- I don't
20 know where I got my -- where I contracted
21 that, and that wasn't an option for the
22 contact tracers. I know my time is up, but
23 that's a serious consideration.
24 COMMISSIONER ZUCKER: Right, but the
356
1 contact -- right, but I will say that that
2 contact tracing and what we have done is what
3 has helped prevent the spread of this
4 disease.
5 I mean, it is just -- these are just
6 straightforward public health measures that
7 are put into place. The masks, the hand
8 washing, right, the distance -- the social
9 distancing, the contact tracing, the
10 vaccinations, these are just the standard
11 things we do to make sure we prevent this
12 pandemic from spreading in New York and
13 elsewhere, for that matter. So --
14 SENATOR BORRELLO: With all due
15 respect, sir, we have more people in the
16 hospital with COVID right now than Florida,
17 with none of those restrictions. So I have
18 to question the science on this.
19 COMMISSIONER ZUCKER: I'm going to
20 take issue with that. But okay.
21 CHAIRWOMAN WEINSTEIN: We go to
22 Assemblyman Abinanti.
23 ASSEMBLYMAN ABINANTI: I'm unmuted, I
24 guess? There we go.
357
1 Thank you very much, Commissioner, for
2 joining us today.
3 COMMISSIONER ZUCKER: Thank you.
4 ASSEMBLYMAN ABINANTI: Unfortunately
5 there's been no mention of one very
6 vulnerable group of people, people with
7 disabilities. As of this week, the numbers
8 I've seen, of the 34,500 people who lived in
9 OPWDD residential settings, 6,716 tested
10 positive and 538 died from COVID-19. That's
11 and 19.4 percent infection rate, and a 1.6
12 fatality rate -- double the state's
13 transmission and six times the fatality rate
14 of the state.
15 Number one, on April 10, 2020, a state
16 directive to OPWDD providers -- almost
17 identical to the March nursing home
18 directive -- requires return of COVID-19
19 patients from the hospital to OPWDD
20 residential settings and prohibits their
21 being tested before return.
22 How do you defend that this directive
23 is still effective and has not been modified?
24 Number two, on November 10, 2020,
358
1 there was a state directive to OPWDD
2 providers, unique to OPWDD, that allows
3 direct support staff exposed to a confirmed
4 COVID-19 case to go to work so long as they
5 quarantine when they're not at work.
6 In light of the fact that over 11,600
7 staff in OPWDD direct-care programs have
8 contracted COVID-19, how do you defend that
9 this directive is still effective and has not
10 been modified?
11 And number three, the numbers that I
12 was given come from the state. This is about
13 those who got COVID-19 in certified
14 residences. Do these numbers include those
15 who died in hospitals, or just those who died
16 in residences?
17 So my three questions are why are we
18 still requiring direct return of COVID
19 patients to OPWDD residences? Why are we
20 allowing exposed staff to go into those
21 residences? And lastly, are these numbers
22 actually accurate or do we have the same
23 problem we had with nursing homes?
24 COMMISSIONER ZUCKER: A couple of
359
1 things.
2 The first thing is that I didn't catch
3 all the percentages, and I will go back and
4 look at them. But this is a congregate
5 setting. This is one of the challenges we've
6 had with congregate settings and disease
7 spread, whether it's the nursing homes,
8 college --
9 ASSEMBLYMAN ABINANTI: Yes, but you
10 yourself, Commissioner, said that the
11 congregate settings are getting it from
12 staff.
13 COMMISSIONER ZUCKER: Yes, so let me
14 finish. Right.
15 ASSEMBLYMAN ABINANTI: So why are you
16 allowing staff that has been exposed to go
17 into the congregate settings?
18 COMMISSIONER ZUCKER: Let me -- let me
19 finish. Part of this is OPWDD. You need to
20 direct it to the commissioner of OPWDD --
21 ASSEMBLYMAN ABINANTI: I did, and they
22 said talk to the health commissioner. They
23 said all of this comes from the Department of
24 Health.
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1 COMMISSIONER ZUCKER: Number two, the
2 issue with OPWDD, all those settings, they
3 have become a priority for vaccinations so
4 that we can make sure that the residents
5 there are protected and no longer at risk.
6 The issue of testing, I'd be happy to
7 follow up on that, but the testing that we
8 have provided for nursing homes we provide
9 for other facilities, and that will hopefully
10 decrease the spread. But as --
11 ASSEMBLYMAN ABINANTI: The directive
12 still in effect specifically says that they
13 cannot test.
14 COMMISSIONER ZUCKER: Well, I will get
15 back to you on the details after I look at
16 the directive. I want to go through that
17 first.
18 But as I said, from the -- the key
19 points that I have is yes, a congregate
20 setting, and yes, vaccine is a priority in
21 that setting to make sure that doesn't become
22 a problem.
23 CHAIRWOMAN WEINSTEIN: We'll go now to
24 the Senate.
361
1 CHAIRWOMAN KRUEGER: Thank you.
2 Our next speaker will be Senator Julia
3 Salazar.
4 SENATOR SALAZAR: Thank you. Thank
5 you, Commissioner and Deputy Commissioner,
6 for joining us today.
7 I want to ask about the -- really what
8 the Executive Budget is doing to keep
9 safety-net hospitals operational during a
10 time when we need them the most. The
11 Medicaid spending cap, lowered reimbursement
12 rates, the Executive Budget's threats of
13 additional Medicaid cuts across the board
14 means that hospitals who treat mostly
15 low-income patients and like hospitals in my
16 own district are under financial strain.
17 And I just want to know what exactly
18 is the Executive Budget doing to keep these
19 safety-net hospitals operational right now?
20 COMMISSIONER ZUCKER: This is an
21 enormous issue. The safety-net hospitals
22 across the state were challenged prior to the
23 pandemic. Since the pandemic, obviously --
24 particularly upstate when we cut back on
362
1 elective surgery and they didn't have cases,
2 so they were stressed even further. So we
3 recognize that.
4 We're working with our team, the
5 Office of Primary Care and Health Systems
6 Management, to figure out how we can make
7 sure they have the resources to continue to
8 provide the care to their communities. This
9 is a challenge.
10 Regarding the cap, the global cap --
11 because that ties into this as well, I think
12 that Donna will address some of that. But we
13 are looking at these issues of how
14 hospitals across the state that were
15 challenged over the course of the last year
16 can meet their needs.
17 Donna, do you want to address the --
18 MEDICAID DIRECTOR FRESCATORE: Sure.
19 Thank you, Dr. Zucker.
20 And speaking for the Medicaid program,
21 I can tell you this is, you know, a concern
22 that we share as well and we work very
23 closely with our colleagues and Dr. Zucker
24 here in the department because we understand
363
1 that Medicaid plays an important role in the
2 financial viability of those very needed
3 hospitals, and other providers as well.
4 So we talked a little bit earlier
5 about a series of programs, including the
6 Vital Access Safety Net Provider Program,
7 which supports projects for facilities that
8 are selected due to their financial condition
9 and the role they play in serving
10 New Yorkers. We talked about VAPAP a bit,
11 including that commitment as well as the
12 Value Based Payment Quality Incentive
13 Program.
14 The budget in '22 includes about
15 $900 million in funding to support those
16 hospitals. Right? That's over and above
17 reimbursement for Medicaid.
18 There's also, you know, a proposal
19 that we haven't quite touched on and that is
20 for our Essential Plan here in New York.
21 About 880,000 people as of this morning
22 receive coverage through that program. We've
23 recognized that, you know, those provider
24 reimbursement assumptions have not been
364
1 changed since the program was first
2 implemented in 2016.
3 And so we anticipate, as far as part
4 of the state plan here, that an additional
5 $420 million will be invested in provider
6 reimbursement for both inpatient and
7 outpatient services. Also helping those
8 hospitals that are serving those -- you know,
9 that's a huge program by anybody's standard,
10 you know, 880,000 people.
11 Those are just a few of the
12 initiatives, and we're happy, you know, to
13 have further conversation about any of those
14 programs in more detail.
15 SENATOR SALAZAR: All right.
16 Unfortunately I'm out of time. Thank you.
17 CHAIRWOMAN KRUEGER: Thank you very
18 much.
19 Assembly.
20 CHAIRWOMAN WEINSTEIN: Assemblywoman
21 Hunter, please.
22 You need to pull her; she needs to
23 leave for conference. Thank you.
24 ASSEMBLYWOMAN HUNTER: Very good,
365
1 thank you. Thank you, Chair Weinstein. I
2 appreciate it.
3 This is relative to the consumer
4 directed. And I don't know who wants to
5 answer. I know there was a couple of
6 questions about this.
7 But let me just lay out specifically
8 in Onondaga County, there's over 350,000
9 residents, and not one FI was awarded in our
10 entire county. So many of the organizations,
11 the not-for-profits that have provided this
12 crucial service to many of our most
13 vulnerable -- some of our largest
14 organizations, some of our organizations who
15 deal with refugees and new Americans who
16 speak the language of those who have come
17 here, were not awarded.
18 And so I heard what you said about,
19 you know, the award process, and apparently
20 there's supposed to be some sort of review
21 after this. But I literally have FIs in
22 Rockland County who are supposed to be now
23 the FIs who are supposed to provide services
24 in Onondaga County.
366
1 So I can't imagine -- I have
2 not-for-profits, you know, calling my office
3 trying to figure out what happened,
4 longstanding organizations who have been
5 providing this service for years and years
6 and years. And we're in a situation now
7 where not one single provider was given an
8 award to provide Consumer Directed FI
9 services in one of the Big 5 counties.
10 MEDICAID DIRECTOR FRESCATORE: So I
11 don't know the specifics of Onondaga, but I
12 will certainly look into it.
13 What the RFO allowed was actually
14 collaborating partners that might be local.
15 The idea there was that rather than have
16 every organization use funding, for example,
17 to process payroll or to check workers' comp,
18 that there would be one lead organization
19 that would perform those administrative
20 services, and they would have collaborating
21 partners on the ground locally.
22 So I will be happy to look into your
23 concerns about Onondaga.
24 ASSEMBLYWOMAN HUNTER: Please.
367
1 I can understand the collaboration.
2 And there has been an abuse with FIs. I
3 admit that there are organizations that
4 should not be delivering this consumer, you
5 know, programming. But these longstanding
6 organizations should be the leads and should
7 have other organizations subbing to them.
8 So I am critical, you know, asking if
9 you could please take a look at this. It
10 makes no sense and it makes no sense to not
11 have a lead organization to sub even to the
12 rest in a county as large as mine.
13 MEDICAID DIRECTOR FRESCATORE: I'll
14 look into that.
15 ASSEMBLYWOMAN HUNTER: Thank you.
16 CHAIRWOMAN WEINSTEIN: Thanks.
17 Back to the Senate.
18 CHAIRWOMAN KRUEGER: Thanks.
19 Do we have Senator Stec with us still?
20 SENATOR STEC: Yes.
21 CHAIRWOMAN KRUEGER: Hello,
22 Senator Stec.
23 SENATOR STEC: Hello, how are you?
24 CHAIRWOMAN KRUEGER: All right.
368
1 Welcome.
2 SENATOR STEC: All right, thank you
3 very much.
4 Commissioner, Doctor, thank you very
5 much for your testimony today. I understand
6 it's been a long day.
7 And I've been paying attention and
8 listening to the questions, so if I could
9 just briefly start with a statement. I
10 just -- in listening to my colleagues and my
11 own personal observation, I want to say that
12 your department's unresponsiveness to the
13 Legislature in our communications has been
14 unacceptable and frankly troubling.
15 And I'm also personally troubled, as I
16 know a lot of my colleagues are, about what
17 apparently has been a partisan kind of
18 communication as far as having meetings with
19 one side of the aisle and not with the other.
20 We're all in this together. And certainly my
21 constituents want to be involved in the
22 discussions as to what's going on as well.
23 So with that said, I do have one
24 question that I've got to ask, and frankly
369
1 I'm surprised that no one's asked it yet.
2 Early on, to previous questions about sending
3 COVID-positive patients back into nursing
4 homes, you stated that COVID was already
5 largely present in these homes from other
6 sources, like in your example with staff.
7 So I just want to understand, in
8 layman's terms, if there's one room with
9 50 people in it and one of those 50 people
10 has COVID, and then there's another room of
11 50 people and 20 of those people have COVID,
12 are you saying that you would expect the two
13 rooms to have the same infection rates?
14 COMMISSIONER ZUCKER: I think that,
15 you know, you're asking a question without my
16 knowing more of the details of those -- of
17 the scenarios. So if you have --
18 SENATOR STEC: All other things being
19 equal, Doctor. All other things being equal,
20 one in 50 and 20 in 50, they would have the
21 same infection rate?
22 COMMISSIONER ZUCKER: But how are you
23 defining infection rate? If the -- if you're
24 saying --
370
1 SENATOR STEC: Well, let me rephrase
2 it. Would you --
3 COMMISSIONER ZUCKER: One out of 50,
4 2 percent have it. Twenty out of 50,
5 40 percent have. Right? Right, I get what
6 you're saying. That's how many people have
7 it.
8 SENATOR STEC: Now, which room would
9 you rather be in? Let me ask it that way.
10 What room would you rather be in? Would you
11 rather have your parent or grandparent in the
12 room with one out of 50 or 20 out of 50?
13 COMMISSIONER ZUCKER: It's a
14 hypothetical question.
15 SENATOR STEC: It's a very real
16 question, Doctor.
17 COMMISSIONER ZUCKER: Well, no, I see
18 where your reasoning is going here. You're
19 going to say, well, if there's only one
20 person who has it in the whole facility.
21 But the bottom line is that it's in
22 the facility. And it's in the facility with
23 one person or more. And it's not a fair
24 question to ask whether, you know, the room
371
1 had 20 people in there versus one person in
2 there, because the disease is there. The
3 disease is already in the facility.
4 And so if I were in that room and one
5 person -- I walk into a room with one person
6 with COVID, I'd be as concerned as if I
7 walked into a room with 20 people with COVID.
8 Because it's already there.
9 I mean, I understand what your -- what
10 your point is.
11 SENATOR STEC: Right? I mean one --
12 well, all right.
13 Well, with that said, do you have a
14 list of nursing homes that followed the
15 directive from March 25th that accepted
16 nursing -- COVID-positive patients? Do you
17 have a list of those?
18 COMMISSIONER ZUCKER: I don't have it
19 off the top of my head, but I do have a list.
20 SENATOR STEC: I'd like to see that
21 list, please.
22 COMMISSIONER ZUCKER: Sure.
23 SENATOR STEC: And also, do you know
24 how many COVID-positive patients were
372
1 accepted at each of these facilities? If you
2 don't have that off the top of your head, I
3 would like that as well.
4 COMMISSIONER ZUCKER: I can get that.
5 I can get that.
6 SENATOR STEC: All right. I see my
7 time is up. I have more, but I'll continue
8 to listen. Thank you.
9 CHAIRWOMAN KRUEGER: Thank you.
10 Assembly?
11 CHAIRWOMAN WEINSTEIN: Thank you. Now
12 we go to Assemblywoman Niou.
13 ASSEMBLYWOMAN NIOU: Hello. Thank you
14 for being here. Thank you for putting me up,
15 Helene. I just -- I don't know if I can see
16 what was happening. But I just wanted to
17 say, you know, I'm seeing in our budget cut
18 after cut after cut after cut of our
19 healthcare budget and our healthcare safety
20 net, and it's very, very concerning. This is
21 one of the things that I just wanted to echo
22 a lot of my colleagues on. What Samra said
23 is really, really true, our Senator Brouk
24 from upstate New York.
373
1 You know, the answer was the
2 Essential Plan, which is one of the only
3 things that was proposed for funding -- and
4 that was really concerning because we don't
5 even know if it's even an allowable use under
6 federal law. And this payment goes directly
7 to the healthcare plans rather than to
8 providers, and then we don't even know what
9 guarantees there are that providers will ever
10 see this money. So I just wanted to put that
11 out there.
12 Also, many of my colleagues actually
13 submitted memos and requests for FOIL
14 requests, and not one has gotten a response.
15 Do you commit to cover -- to actually hand
16 over all the communications that happened
17 with hospitals' and nursing homes' lobbyists
18 regarding the corporate legal immunity?
19 COMMISSIONER ZUCKER: So regarding
20 FOIL requests, we respond to the FOIL
21 requests. We get an unbelievable amount of
22 requests every day. I don't have the exact
23 number; I had it last year, and that was
24 prior to the pandemic.
374
1 There is -- so if there's information
2 that we can release, we do release it.
3 Sometimes you have FOIL requests that have
4 thousands and thousands of pages to them, I'm
5 not exaggerating here, and we have a team
6 that has to address it. And so we do move
7 forward.
8 ASSEMBLYWOMAN NIOU: Yeah, I mean,
9 just like -- you understand like we've been
10 waiting for a really, really long time, I
11 mean including our Healthcare chair has been
12 waiting for a very, very long time on some
13 information that is really necessary for the
14 Legislature to be able to conduct its work.
15 MEDICAID DIRECTOR FRESCATORE: If I
16 could add as well to your first questions --
17 ASSEMBLYWOMAN NIOU: I actually wanted
18 to continue to ask a couple of other
19 questions. So do we -- because I have
20 limited time. Do we know how many
21 COVID-positive patients were actually
22 admitted to nursing homes during that
23 March 25th order period.
24 COMMISSIONER ZUCKER: Like I said, we
375
1 can get you that information. That was asked
2 before.
3 ASSEMBLYWOMAN NIOU: Yeah, okay --
4 COMMISSIONER ZUCKER: But I -- can I
5 clarify this? You were saying how many
6 COVID-positive patients were admitted to
7 nursing homes. Now -- and this is a very
8 important point -- whether someone is
9 COVID-positive does not mean they are
10 contagious.
11 ASSEMBLYWOMAN NIOU: Okay.
12 COMMISSIONER ZUCKER: And I will
13 reiterate this, you know, over and over.
14 ASSEMBLYWOMAN NIOU: I understand.
15 COMMISSIONER ZUCKER: No, I really
16 want to make sure of this point because it's
17 important. The test that measures COVID
18 measures dead virus. You can walk around for
19 weeks with a COVID-positive test. It does
20 not mean that you are contagious.
21 So saying that someone went back to a
22 nursing home and they had a COVID-positive
23 test does not mean that they are contagious.
24 And in fact when we looked at this
376
1 information and when I was trying to go
2 through this before about how long someone
3 was in the hospital and the incubation period
4 and their initial symptoms, you will find
5 that people were already past their
6 infectious period, and the viral load is much
7 higher earlier on. And I think that's an
8 important point.
9 And this is where the issues of fact
10 get lost when there's a narrative out there
11 which is just not true. And I don't mean to
12 be so harsh about this, but it is important,
13 when it comes to science, to make sure it's
14 correct.
15 ASSEMBLYWOMAN NIOU: Okay, so I'm
16 really glad that I was able to allocate some
17 of my time to that important PSA. But I just
18 wanted to also ask the chairwoman if I
19 could -- I apologize to my colleagues,
20 because I really did want to get to my next
21 question and I wasn't able to.
22 CHAIRWOMAN WEINSTEIN: Ask your
23 question.
24 ASSEMBLYWOMAN NIOU: Okay, great,
377
1 thank you.
2 How much does each COVID patient
3 actually get reimbursed in Medicare in a
4 nursing home, and how much higher is that
5 compared to a regular nursing home resident
6 who is reimbursed via Medicaid? Because I
7 want to just -- you know, I feel like we need
8 to have that answer very clearly because, you
9 know, I'm starting to feel, with all of these
10 answers, that there's a clear financial
11 motive behind every single decision that this
12 administration has made.
13 COMMISSIONER ZUCKER: With regards to
14 reimbursement, maybe Donna can answer that.
15 MEDICAID DIRECTOR FRESCATORE: Yeah,
16 I'd like to suggest may we circle back to
17 your question, because the Medicare
18 reimbursement, as you know, is not for
19 custodial care, it's for skilled care in a
20 nursing facility. So it is a different level
21 of care.
22 But we're happy to talk more or hear
23 more about your question.
24 ASSEMBLYWOMAN NIOU: Yeah, I would
378
1 really like to get that information. And if
2 you could just get that for me, that would be
3 great, because otherwise --
4 MEDICAID DIRECTOR FRESCATORE: There's
5 very different criteria, is my point, about
6 when Medicare pays for a nursing care stay.
7 It's not custodial care, it's care that's
8 generally rehabilitative, it includes
9 therapies, and Medicare pays more than
10 Medicaid for that reason alone.
11 ASSEMBLYWOMAN NIOU: Okay. I just
12 feel like there are some differences also in
13 just the financial incentives that folks are
14 getting different kinds of care with
15 different kinds of financial motives behind
16 them, and we probably need a full oversight
17 hearing ASAP.
18 CHAIRWOMAN WEINSTEIN: Thank you. So
19 now we'll go back and go to the Senate.
20 CHAIRWOMAN KRUEGER: Thank you.
21 Senator O'Mara. Oh, excuse me.
22 Senator Ritchie was supposed to go before
23 Senator O'Mara.
24 So hello, Senator Ritchie.
379
1 SENATOR RITCHIE: Hi, Senator Krueger.
2 Thank you.
3 Commissioner, my questions are pretty
4 much the same two questions I have asked year
5 after year during the budget hearings. And
6 you know that I represent a very rural area.
7 We have some economic challenges. A lot of
8 the patients that are in our hospitals and
9 our nursing homes are Medicaid. And I look
10 at the Governor's comprehensive plan on the
11 nursing homes, and we all would agree we want
12 to do whatever we can to improve patient
13 care. But if there's no funds behind it, I
14 don't know how this is going to happen.
15 As it is, we've had several nursing
16 homes in my district that have closed. Our
17 biggest nursing home, as your staff well
18 knows -- we've called multiple times -- is on
19 the brink of closing its doors. So without
20 an increase in the Medicaid reimbursement
21 rate, I don't know how they can stay open,
22 let alone implement any changes as far as
23 staffing and new patient care.
24 And along with that, the other
380
1 question I ask every year is we are so
2 short-staffed on medical professionals,
3 especially nurses. We have two SUNY schools
4 that I plead every year is there any way we
5 can try to find some way to boost the
6 enrollment and help the situation, and it's
7 gotten worse in the pandemic.
8 So I guess my question is how do we
9 accomplish this goal of better care, keep our
10 nursing homes and hospitals open, if we're
11 not going to look at upping the Medicaid
12 reimbursement? And what can DOH and the
13 state really do this time to help with the
14 short-staffing issue with regards to doctors
15 and nurses?
16 COMMISSIONER ZUCKER: (Muted.) On the
17 second question, we are addressing this issue
18 of staffing. This goes back to what I was
19 saying earlier, that we need to look at how
20 we address the professional development for
21 health professionals, both in urban but
22 particularly in rural areas.
23 This is a conversation I've had also
24 with our SUNY system leadership as well,
381
1 particularly the nursing schools that they
2 have, as well as their medical schools, on
3 how do you get people out there.
4 So we will continue to do this. I
5 think the pandemic has given all of us -- has
6 reenergized us to make sure that the
7 healthcare professionals across the state are
8 there and available, and I don't even need to
9 go through all the different specialties.
10 Regarding the reimbursement, Donna,
11 did you want to address the Medicaid number
12 for the hospital challenges?
13 MEDICAID DIRECTOR FRESCATORE: Yeah, I
14 think on the Medicaid nursing home -- I mean,
15 I cannot speak to any one nursing home or
16 facility's, you know, rates in particular,
17 you know, today. Happy to talk about that
18 separately.
19 But, you know, I think that as
20 respects the nursing home initiatives and the
21 accountability and the patients over profit
22 in the 30-day amendments to the
23 Executive Budget, we -- you know, we believe
24 that based, you know, on past reporting that
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1 there are many nursing homes that already are
2 at the levels that are required, the
3 40 percent on resident-facing care and the
4 70 percent on patient care.
5 And we'll know more about that as time
6 goes on. That has an implementation -- an
7 effective date of January 1, 2022, as you
8 know, and it anticipates regulations.
9 SENATOR RITCHIE: Thank you.
10 CHAIRWOMAN KRUEGER: Okay. Assembly?
11 CHAIRWOMAN WEINSTEIN: Yes, we have
12 Assemblyman Perry next.
13 ASSEMBLYMAN PERRY: Thank you, my
14 colleague. And good evening to the team from
15 the Department of Health.
16 CHAIRWOMAN KRUEGER: Not evening yet.
17 ASSEMBLYMAN PERRY: Some of my
18 colleagues raised questions about the CDPAP
19 program and the whole new implementation of
20 this program that is supposed to be reducing
21 costs.
22 So Dr. Zucker, I'd just like to ask
23 you that I think it's -- that the program was
24 implemented as a cost-saving mechanism, and
383
1 it became much more used than anticipated or
2 expected, and the costs soared. So you want
3 to reduce the cost of this program that so
4 many individual families depend on.
5 Many of the providers who participated
6 over the last couple of years have complained
7 that the process under this new program is
8 being implemented and the screening and
9 reviewing of these applications was very
10 ad hoc, so a lot of -- there's a claim of
11 arbitrary and capricious action and behavior
12 on the part of the company that was picked to
13 do this review. There are companies that
14 were provided -- that were selected who
15 submitted almost exactly the same
16 submission -- of companies who got compared
17 to those who didn't get.
18 I think there's a need for a real,
19 real clear, transparent review of all of
20 those applications. I was alarmed to learn
21 from my colleague just now that there are
22 counties where not even a single provider
23 within the county was selected. That is
24 outrageous.
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1 It seems something is definitely wrong
2 with the whole process and that it was rushed
3 or it was not done by people who had the
4 ability and the knowledge and the system in
5 place to do this review and make it fair and
6 transparent, and so that people who are
7 eligible and qualified to do the job are
8 selected.
9 So I would like to hear from you if
10 you will review this program before you
11 implement it. Because the complaints and the
12 problem are outrageously large and it's not
13 going to reduce the cost of this program if
14 so much money is going to a contracted
15 company just to administer it, money that
16 could be used to provide the program.
17 MEDICAID DIRECTOR FRESCATORE: Just --
18 if I could address that.
19 First, I want to be clear that for the
20 Consumer Directed Program the department has
21 and continues to support consumer-directed
22 care. There is no cut to the level of
23 service here, so consumers don't lose hours.
24 I also want to clarify that there was
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1 no contractor that reviewed these
2 applications. These applications to become a
3 fiscal intermediary were reviewed by DOH
4 staff. I just want that to be clear on the
5 record.
6 The process is in its first stage.
7 We've made conditional awards. The next step
8 is to do any debriefings asked for, and many
9 parties already asked for them. We talked
10 about that earlier.
11 CHAIRWOMAN WEINSTEIN: Thank you.
12 You know, this question has been asked
13 a number of times and you've given the same
14 answers. So I'm going to ask my colleagues
15 to pay more attention when you speak so that
16 they don't reask the same questions.
17 So we're going to go on to the Senate.
18 CHAIRWOMAN KRUEGER: Fair enough.
19 Fair enough. Good point, Helene.
20 Now it's Senator O'Mara, ranker on
21 Finance.
22 SENATOR O'MARA: Thank you, Senator.
23 Thank you for being with us today,
24 Commissioner, the many hours you're spending
386
1 with us. I do appreciate your time.
2 I do have some questions for you, but
3 also some concerns about many of your
4 comments today about being -- wanting to be
5 open and transparent and have a dialogue with
6 the Legislature when all of your actions
7 speak to anything but that.
8 Your department waited until last
9 evening to brief our staffs on $1.6 billion
10 in Medicaid cuts. We've had no time to
11 review and respond to this proposal and
12 what's out there. You tell us that after --
13 stonewalling the Legislature for over six
14 months on information requests, that finally
15 when you're ordered to turn it over -- and
16 that the Empire Center, that was requesting
17 those records, issued a report a week ago,
18 yet you haven't taken the time to really look
19 at that except you know enough to deny that
20 whatever he's reporting is not accurate.
21 You stonewalled the Legislature on
22 records, you stonewalled the Empire Center on
23 records. And -- but in every one of -- and
24 then you've used the DOJ investigation as an
387
1 excuse for not providing records. Yet in
2 every one of your deferrals of responding to
3 the FOIL request, and in any court arguments
4 over the lawsuit on that, you never raised
5 the Department of Justice investigation as a
6 reason for that delay. So nothing's really
7 ringing true here.
8 But I have a question for you. Who on
9 the second floor -- and you know what I mean
10 by the second floor, the Governor's office
11 and his top aides -- who did you have
12 discussions with over that six-or-seven-month
13 period about delaying the release of the
14 records to either the Legislature or to the
15 Empire Center?
16 COMMISSIONER ZUCKER: Well, as the
17 Governor has said, you know, last week, that
18 a void was created and that the information
19 should have been released sooner. And he
20 regrets that, and I share his feeling on --
21 feelings about that.
22 SENATOR O'MARA: Commissioner, whose
23 decision was it not to release the records?
24 COMMISSIONER ZUCKER: I -- I -- I said
388
1 to you -- well, as I've said, that the
2 information should have been released sooner,
3 which is what the Governor said. But the --
4 SENATOR O'MARA: Commissioner, whose
5 decision was it to not release the records?
6 COMMISSIONER ZUCKER: The details and
7 the specifics of how this came to pass are
8 the subject of an ongoing investigation. And
9 when a full determination has been made
10 and -- it will be released to the public
11 about this process.
12 However, at the present time --
13 SENATOR O'MARA: Commissioner --
14 commissioner, have you received any subpoenas
15 from the New York State Assembly or the New
16 York State Senate in regards to the nursing
17 home investigation?
18 COMMISSIONER ZUCKER: The
19 department -- the legal issues that are dealt
20 with the legal department. And if we get a
21 letter or a request --
22 SENATOR O'MARA: Have -- you would
23 know if you received subpoenas from the State
24 Legislature requesting records related to
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1 this. Have you or have you not?
2 COMMISSIONER ZUCKER: The -- at this
3 point in time, like I said, any of these
4 issues that deal with the legislation of --
5 or from the Legislature, that deals with the
6 legal department. And I leave it for them to
7 process that.
8 SENATOR O'MARA: Has the Department of
9 Health or the Governor's office, the State of
10 New York, responded to the DOJ federal
11 request for information from August or
12 October of last year?
13 COMMISSIONER ZUCKER: So this goes
14 back to the issue about the DOJ letter,
15 right? And as I said, that my -- I'm aware
16 of the letter and I have said that the --
17 just like my data team deals with the data
18 analytics, my legal team deals with these
19 issues of any of the letters that -- that
20 come in. So I --
21 SENATOR O'MARA: So you don't know
22 whether your legal team has responded to the
23 federal requests?
24 COMMISSIONER ZUCKER: There is a
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1 letter that went back, right, for -- from --
2 to DOJ and --
3 SENATOR O'MARA: When will we be
4 provided with that letter?
5 COMMISSIONER ZUCKER: There is a
6 process here. There is a process. And I am
7 sure that you respect the process that an
8 investigation is ongoing, and that I am not
9 going to be disrespectful of a process that
10 involves any kind of federal inquiry, any
11 inquiry. So --
12 SENATOR O'MARA: Have you -- have you
13 received a subpoena to testify before any
14 grand jury?
15 COMMISSIONER ZUCKER: I'm going back
16 to the same issue, that I'm saying there's a
17 federal inquiry process that's going on
18 and -- that I hope that you, as well, will
19 respect as much as I will. And that if
20 that -- when that process goes forward, then
21 I will comment. But right now this is an
22 investigation that our legal team will
23 address.
24 SENATOR O'MARA: My time is up. But I
391
1 find virtually everything you've said here
2 today to be totally without credibility.
3 COMMISSIONER ZUCKER: I'm sorry to
4 hear that.
5 CHAIRWOMAN KRUEGER: All right. Thank
6 you. Assembly.
7 CHAIRWOMAN WEINSTEIN: We're going to
8 go -- yes -- to Assemblyman Jacobson.
9 ASSEMBLYMAN JACOBSON: All right. Do
10 you hear me now?
11 CHAIRWOMAN WEINSTEIN: Yes.
12 COMMISSIONER ZUCKER: I hear you.
13 ASSEMBLYMAN JACOBSON: Thank you.
14 Thank you, Madam Chair. And thank you,
15 Dr. Zucker, for your public service and
16 testimony today.
17 I wish to address the disastrous
18 vaccination process in the state with moving
19 vaccination sites and an inconsistent,
20 confusing and difficult appointment process.
21 First, I'm advocating for the state to
22 establish permanent vaccination sites in the
23 two cities I represent, Newburgh and
24 Poughkeepsie.
392
1 Second, I'm calling on the state to
2 simplify the existing sign-up process, which
3 can at best be described as haphazard and
4 frustrating.
5 Last month I called for this permanent
6 site. Shortly after that, the state
7 established a pop-up site at the
8 Newburgh Armory and another at Beulah Baptist
9 Church in the City of Poughkeepsie. Pop-up
10 sites are well and good, but residents need
11 reliability and consistency. We did it for
12 early voting; we can do it for vaccines.
13 The cities of Newburgh and
14 Poughkeepsie are two of the hardest-hit areas
15 in the Hudson Valley, if not the state.
16 Newburgh's infection rate is 8.4 percent,
17 while the state is at 3.34 percent positivity
18 rate. Establishing permanent vaccination
19 sites in these cities would go a long way to
20 addressing the Newburgh microcluster and help
21 the many Black and Latino residents of both
22 cities who have been disproportionately
23 impacted by COVID-19.
24 Now to address the issue of vaccine
393
1 sign-ups. Currently eligible New Yorkers in
2 search of an appointment face a hodgepodge of
3 constantly changing rules and guidelines.
4 People sign on the state site, and they think
5 that will be enough. Then they're told they
6 may sign up on the state website, their home
7 county's website, and on the website of every
8 nearby pharmacy that might be fortunate
9 enough to receive a small allotment of the
10 vaccine.
11 Of course I recognize the most
12 fundamental problem had been the nationwide
13 shortage of the vaccines. However, now we
14 have a new administration in Washington and
15 the Biden administration is doing its job by
16 accelerating vaccine production. We must get
17 ready and reform the sign-up process now.
18 Currently appointments to get a
19 vaccine are filled within minutes of being
20 announced, and eligible residents find
21 themselves unable to make an appointment,
22 while additional categories continue to be
23 added to the list of those eligible. While
24 we are waiting for the vaccine availability
394
1 to catch up with need, which will be soon, we
2 need to set up a user-friendly system where
3 eligible residents can sign up either by
4 phone, without endless wait times, or online
5 and receive an alert when an appointment is
6 available within a reasonable geographic
7 radius. We need one-stop shopping -- sign up
8 once, and you will be assigned once a
9 vaccination appointment becomes available.
10 It's just common sense to do it that way.
11 Also, assisted living facilities and
12 senior housing should be treated like nursing
13 homes and have pharmacies or healthcare
14 providers go to these residences and
15 administer the vaccines. These residents are
16 generally not mobile, nor computer-savvy, and
17 need the vaccines to come to them.
18 Thank you for your prompt attention to
19 these pressing matters.
20 COMMISSIONER ZUCKER: Thank you.
21 Thank you. We do have, just as an aside, we
22 have a hundred community pop-up sites, we
23 have 33 sites in NYCHA housing, we have six
24 FEMA sites --
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1 ASSEMBLYMAN JACOBSON: We need
2 permanent sites.
3 COMMISSIONER ZUCKER: -- like Yankee
4 Stadium -- what?
5 ASSEMBLYMAN JACOBSON: We need
6 permanent sites so that people know where to
7 go. And if you have a pop-up site, if you
8 don't get it in the first 30 seconds, you
9 can't get an appointment.
10 COMMISSIONER ZUCKER: We're working on
11 that. We'll address it with our team. But I
12 just want you to know, we have over four --
13 probably by the end of today or tomorrow,
14 4 million people who have been vaccinated who
15 have been allocated for -- or administered, I
16 should say. And we are moving forward on
17 this. I hear your concerns. I recognize
18 them. We will continue to work to achieve
19 the goals that you and all of us --
20 ASSEMBLYMAN JACOBSON: We need a
21 simple process.
22 CHAIRWOMAN WEINSTEIN: Assemblyman, we
23 have to move on to the Senate.
24 CHAIRWOMAN KRUEGER: Thank you.
396
1 Oh, I think we're up to me. Hi. So,
2 so many questions have been asked, and I
3 don't want to repeat anything. But I just
4 want to phrase something maybe slightly
5 different to clarify.
6 So we have this global cap many people
7 have been talking about, and we've been
8 talking about it for a year. And when it
9 went into effect -- was it 2011, 2012? Do
10 you remember, Donna? What was the number of
11 people on Medicaid when we put the global cap
12 into effect?
13 MEDICAID DIRECTOR FRESCATORE: Far
14 fewer. I don't have an exact number,
15 Senator.
16 CHAIRWOMAN KRUEGER: Well, I think it
17 was about 4 million. I could be wrong. And
18 you said we're now going -- we're going to
19 hit 7 million.
20 So a global cap, if it was a
21 limitation on how much money per person in
22 the program, would actually conceivably be
23 justified because you're trying to limit
24 growth in the program per person.
397
1 But we've almost doubled the Medicaid
2 program, I think, since we started the global
3 cap. And so to make the argument that you're
4 not doing harm to people's healthcare when
5 you keep trying to reduce, reduce, reduce the
6 overall cost of the program that is now
7 healthcare for 7 million people instead of
8 4 million people, it's just an impossible
9 scenario. It doesn't matter how many times
10 we go back and look at the numbers and ask
11 you for the data -- you just can't provide
12 health insurance for 7 million people on a
13 lower cost from what you started off on for
14 4 million people, and you shouldn't be
15 trying.
16 So it's not a question, it's a
17 statement that we really just need to go back
18 and establish the rational definition for
19 what a global cap is, and then ask whether we
20 should be having one at this point in time.
21 Particularly because not only do we
22 know we're in the middle of a world pandemic,
23 but we've also got more federal Medicaid
24 funds coming in than likely we will ever see
398
1 again, and we should be using them not just
2 to help the people who need it now, but to do
3 all those other things you've talked about
4 today that we all want you to do, which is to
5 rebuild the public health system in all
6 62 counties of the state.
7 We used to pride ourselves on having
8 an amazing public health system, and I've
9 watched it be taken apart. And we hear from
10 counties -- and smaller counties in upstate
11 New York and other counties throughout the
12 state have things they used to be able to do
13 they no longer have staff to do. And so why
14 would it surprise us if our nursing homes
15 were actually in terrible shape long before
16 the pandemic hit them? We had statistics
17 showing that we had a huge problem with
18 nursing homes being understaffed and a higher
19 rate of illness than most national nursing
20 homes, and a correlation between allowing
21 for-profits to have taken over the markets
22 versus the traditional model of
23 community-based nursing homes.
24 And we knew all this was happening,
399
1 and yet it just -- we couldn't get our arms
2 around it. And you want to get your arms
3 around it, and I believe both of you do. But
4 we're not giving you a system that's going to
5 let you unless we actually are funding it
6 appropriately.
7 And so I'm not even going to ask you a
8 question, I've just already said what I want
9 to say, that we really have to be honest
10 about what we've done to our public health
11 system, what price we're paying for it.
12 Because one of the prices we've paid for
13 it -- whoever wants to point fingers at
14 anyone, that's not really my style -- is we
15 had a much higher death rate in our state
16 from the pandemic than other states did.
17 Now, granted, we got it earlier before
18 everybody learned their lessons. But if we
19 had had a better public health system in
20 place, the personnel in place, functioning
21 nursing homes, distribution of healthcare
22 beyond giant hospitals -- somewhere along the
23 line today people talked about CONs. It's a
24 huge issue, from my perspective, that we
400
1 continue, despite endless conversations about
2 hospital healthcare is the most expensive
3 healthcare, we should be careful and focused
4 about making sure we have fair distribution
5 of hospitals statewide, not some places with
6 one hospital for five counties and other
7 places with too many hospitals.
8 And I personally come from the one
9 area of the state that has the largest number
10 of hospital beds per patient of anywhere in
11 the state, and I don't understand why. I
12 don't think it's good for healthcare. I
13 don't think it's good for fair and equitable
14 distribution of healthcare. And I think we
15 need a CON system where we get to tell big
16 private hospitals: We don't need another one
17 of you over here. We could use three of you
18 down the road, three of you up there, but we
19 don't really need another one in the East 60s
20 or the East 70s on Manhattan Island.
21 So I just hope that because of all of
22 the nightmares we're living through -- and we
23 all are, you more than anyone, people who
24 work in your agency and come in every day and
401
1 know what they're facing. And thank you to
2 all the people who aren't here at DOH who are
3 trying to get things done every day with a
4 lot of angry people at them and a lot of
5 angry legislators at them -- who are angry at
6 them.
7 I hope we learn from this the lessons
8 of what we could have done right to avoid
9 some of it, what we can do better because we
10 have survived or will ultimately survive
11 this. And be -- you know, just be the State
12 of New York we always knew we could be. And
13 I have to say on health policy we used to
14 have a much stronger system. We just did.
15 Our public health system was better. My
16 friendly Insurance chair here, when he was
17 pleading with you about the issues for mental
18 health services and substance abuse services
19 at the county levels all over the state --
20 yes, of course we have to do that. That's
21 what we should be investing our healthcare
22 money in, and in preventive services.
23 So with that, I do -- I usually don't
24 even talk that much at these hearings, I just
402
1 direct. But I've done my rant, and thank you
2 for your service.
3 And back to you, Helene.
4 CHAIRWOMAN WEINSTEIN: Assemblywoman
5 Solages.
6 ASSEMBLYWOMAN SOLAGES: And thank you
7 to -- I appreciate the endurance of the
8 chairs. And thank you, Commissioner, for
9 this opportunity.
10 I just agree with my colleagues on
11 transparency and communication and also the
12 importance of a permanent vaccine site in
13 suburban and rural communities. I think that
14 would be a great effort, especially to
15 target, you know, underserved communities.
16 However, I want to discuss the crisis
17 of maternal mortality and morbidity, because
18 we know that women are twice as likely to die
19 from complications of pregnancy and birth
20 than their mothers were a generation ago.
21 So I'm still waiting on communication
22 about the Doula Pilot Program in New York
23 State. I am a sponsor of the legislation
24 that expands Medicaid coverage for the Doula
403
1 Pilot Program. I was excited in June of 2019
2 when your administration announced that they
3 were going to do a pilot program. However,
4 I've seen that there's been very little
5 effort made. Last year I asked you the same
6 question; it was said "I'm going to get back
7 to you," and I haven't received a response.
8 So what is the status of that program?
9 COMMISSIONER ZUCKER: We will -- I am
10 sorry I didn't get back to you about that. I
11 do remember the question last year, and then
12 it was shortly -- well, it was when this all
13 began, so -- and we haven't --
14 ASSEMBLYWOMAN SOLAGES: Yeah. So I
15 won't hold it against you, but -- but today's
16 a new year, so.
17 COMMISSIONER ZUCKER: All right.
18 Well, it's a new year, and I will get back to
19 you on it.
20 ASSEMBLYWOMAN SOLAGES: Mm. Um --
21 COMMISSIONER ZUCKER: I don't -- I
22 have to get the data on that. But I don't
23 have it right at the top of my head.
24 ASSEMBLYWOMAN SOLAGES: I hear from
404
1 the doulas, it's not going well.
2 You know -- you know, we say that we
3 care about maternal mortality and morbidity,
4 but in this budget we make a 20 percent cut
5 to Nurse-Family Partnerships, and there's
6 deeper cuts to that program as well.
7 So, you know, what is the goal? Are
8 we trying to improve -- sorry, are we trying
9 to improve maternal and child health and
10 reduce maternal births? Because by cutting
11 Nurse-family Partnerships, we're not sending
12 that signal.
13 COMMISSIONER ZUCKER: No, it's -- as
14 you know, it's a major commitment of ours to
15 address the maternal mortality issue. It was
16 years ago, when we did the tour around the
17 state. And we have identified programs to
18 address this and have had -- our Maternal
19 Mortality Advisory council was looking at
20 this, and we do have the doula program that
21 we have been addressing in the past.
22 I know that this was something which I
23 was supposed to get back to you about.
24 ASSEMBLYWOMAN SOLAGES: Yeah, so it's
405
1 two for two.
2 So I'm going to move on to the public
3 health workforce outside of New York City.
4 We know that public health -- our departments
5 of health have been reduced about one-third
6 between 2011 and 2018.
7 So, you know, is the Department of
8 Health looking to strengthen the public
9 health infrastructure in New York State by
10 increasing funding through Article VI? Is
11 that something that you guys are interested
12 in doing?
13 COMMISSIONER ZUCKER: Well, we are
14 trying to strengthen the public health force.
15 If you're asking whether by not giving
16 funds to the local communities -- is that
17 what you're implying? I'm not sure --
18 ASSEMBLYWOMAN SOLAGES: Yes, yes,
19 that's why I'm implying.
20 COMMISSIONER ZUCKER: Well, we are
21 trying -- right, and we are looking at the
22 budget and there are a lot of challenges.
23 There was a question previously
24 regarding New York City and what to do, and I
406
1 mentioned the reasons for the cuts there.
2 And we are trying to figure out other ways to
3 provide the public health services that are
4 needed in the community. We work closely
5 with all of the communities, and we have been
6 working with them through this pandemic as
7 well.
8 It is a tight budget. We'll see what
9 we can do and continue to work with them.
10 ASSEMBLYWOMAN SOLAGES: Because our
11 departments of health have been doing a great
12 job locally throughout COVID and, you know,
13 they really need to be supported.
14 COMMISSIONER ZUCKER: And we recognize
15 that.
16 CHAIRWOMAN WEINSTEIN: Back to the
17 Senate.
18 CHAIRWOMAN KRUEGER: We have the
19 second round for Senator Rivera.
20 SENATOR RIVERA: I'm back.
21 Three things. First, Essential Plan.
22 In your testimony you said that the -- and
23 I'll actually read the quote: "The budget
24 will eliminate monthly payments for over
407
1 400,000 New Yorkers," which I'm very --
2 that's a good thing. So how do you plan to
3 cover that elimination of premiums, by the
4 way?
5 COMMISSIONER ZUCKER: Donna, do you
6 know that?
7 MEDICAID DIRECTOR FRESCATORE: Yeah,
8 the federal rules around the Benefit Trust
9 Fund, where the state receives 95 percent of
10 the tax credits, allows for two things:
11 Services and reduction in consumer costs.
12 This is reduction in consumer costs. We will
13 increase --
14 SENATOR RIVERA: Okay. Gotcha. So
15 the trust fund -- so it's the trust fund.
16 How big is it right now? How big is --
17 MEDICAID DIRECTOR FRESCATORE: The
18 balance in the trust fund that we expect at
19 the end of this fiscal year is 4.5 billion.
20 SENATOR RIVERA: Four-point-five
21 billion.
22 MEDICAID DIRECTOR FRESCATORE: Yeah.
23 SENATOR RIVERA: I asked the question
24 because I want to make sure that we move
408
1 through these. So why -- so that's -- but I
2 believe, by the way, that that's a good
3 thing. However, why are you only eliminating
4 medical premiums and not the $30 vision and
5 dental premium for patients? Is there a
6 particular reason why you chose not to do
7 that one?
8 MEDICAID DIRECTOR FRESCATORE: Well, I
9 think what we saw was that -- during COVID
10 was that the $20 premium for the medical care
11 was causing some people not to be able to
12 continue it, or not want to continue it.
13 And we also, in addition to this
14 premium helping existing consumers, the
15 400,000, we also believe it drives about
16 100,000 new enrollees.
17 SENATOR RIVERA: I would certainly --
18 I would certainly hope that we use that --
19 that we use that money more expansively, more
20 expansively and extensively, because it's
21 there and we should certainly use it.
22 But I want to move on to safety nets,
23 and actually Liz Krueger -- if Liz Krueger
24 was a basketball player, like basically she
409
1 would be like that was the biggest of slam
2 dunks, it's like she flew over a car, because
3 it's like -- it was absolutely on point.
4 Now, the Governor, it is true, has
5 been consistent in the message, at least,
6 that there are important safety-net
7 hospitals. You folks certainly did that
8 here. But so if you are -- so if you are
9 indeed, if the administration is so committed
10 to safety-net hospitals, then how do you
11 rationalize the proposed cuts to the ICP for
12 public hospitals?
13 MEDICAID DIRECTOR FRESCATORE: I think
14 the -- for the four or so hospitals that
15 would be affected, the state funding would
16 not be available. But under the DSH caps,
17 the funding could still be received with
18 local dollars, if there was an --
19 (Overtalk.)
20 SENATOR RIVERA: So basically you're
21 putting the onus on counties. Right?
22 MEDICAID DIRECTOR FRESCATORE: It
23 was -- it's the state share savings, yes.
24 SENATOR RIVERA: So --
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1 MEDICAID DIRECTOR FRESCATORE: And,
2 you know, those -- as I understand it --
3 SENATOR RIVERA: -- hold on --
4 MEDICAID DIRECTOR FRESCATORE: Sorry.
5 SENATOR RIVERA: Go ahead, go ahead.
6 I'm going to let you finish that one. Go
7 ahead.
8 MEDICAID DIRECTOR FRESCATORE: I'm
9 just getting a little feedback, I'm sorry,
10 Senator.
11 So -- go ahead. I think I've answered
12 the question, yes.
13 SENATOR RIVERA: Okay. So because --
14 the thing is that I'm concerned about you
15 putting this on counties. Because given the
16 ongoing fiscal strains in counties, I mean,
17 should it be on the counties to make up the
18 difference to protect these hospitals? I'm
19 concerned about that.
20 So instead of cutting safety nets that
21 have been essential -- and they're called
22 essential for a reason, right -- why don't we
23 protect them? I mean, this is actually
24 something I'd like to ask both of you,
411
1 particularly the commissioner. So do you
2 believe that we should be raising revenue to
3 be able to avoid deep cuts to safety-net
4 hospitals -- (ongoing audio feedback) --
5 during this -- don't tell me that the
6 feedback's coming now when I'm asking about
7 revenue.
8 CHAIRWOMAN KRUEGER: Senator Gallivan,
9 go on mute.
10 (Laughter.)
11 SENATOR RIVERA: Commissioner?
12 CHAIRWOMAN KRUEGER: Are you still
13 there, Commissioner?
14 COMMISSIONER ZUCKER: Yeah, but the
15 question I lost because of the feedback. Can
16 you --
17 SENATOR RIVERA: Yeah, I figured. Let
18 me just --
19 CHAIRWOMAN KRUEGER: Repeat the
20 question.
21 SENATOR RIVERA: I'm going to need
22 those 15 seconds back.
23 The question is would you, to avoid
24 deep cuts to safety nets that you say that
412
1 you want to protect so much, would you --
2 would you say that we need to raise revenues?
3 COMMISSIONER ZUCKER: That would be
4 one -- that would be one option, I guess, we
5 could tackle that. I'm trying to figure out
6 how --
7 SENATOR RIVERA: Well, I'm going to --
8 if you were a legislator, I would sign you on
9 to the entire package of Invest in Our
10 New York.
11 But this is the last point I want to
12 make, because I only five minutes. And I
13 have a couple of other colleagues that were
14 giving me questions, I just couldn't get to
15 them.
16 But listen, the -- as far as the
17 global cap, I just want to underline this. I
18 mean, the purpose of it, which -- it's
19 arbitrary, and we all recognize that -- is to
20 regulate spending on Medicaid. In the last
21 fiscal year, the program faced $2.2 billion
22 in cuts. And this budget proposal today cuts
23 well beyond what is deemed necessary for the
24 global cap measure. I mean, you told us
413
1 yourself that you had savings here.
2 So if public health is the priority,
3 as you stated, Commissioner -- and Donna as
4 well -- and given that 5.4 is made available
5 through the Enhanced FMAP, a portion of which
6 is also -- and as I said, it's just bananas
7 to me that it's being used for General Fund
8 relief -- why should Medicaid providers take
9 a deeper cut so this administration can use
10 Medicaid funds for whatever purpose they see
11 fit?
12 And I'm going to leave that question
13 hanging because that's going to be an
14 underlying thing in this whole conversation
15 about the budget. Just still kind of crazy
16 to me.
17 Madam Chair, that's my time in a
18 second round.
19 CHAIRWOMAN KRUEGER: Thank you,
20 Senator.
21 I believe the Senate is done, Helene.
22 And so just take us home, the Assembly.
23 CHAIRWOMAN WEINSTEIN: Okay. Well, I
24 know Assemblyman Gottfried needs to go to
414
1 conference, so why don't we have him do his
2 second now. I'm not sure if he's going to
3 wait till this portion of the hearing ends.
4 And then we'll go back, we still have about
5 six members.
6 Assemblyman Gottfried.
7 ASSEMBLYMAN GOTTFRIED: Okay, thank
8 you. So I have a few things. I'm not sure
9 I'm phrasing them as questions, but just
10 maybe you can send me responses.
11 Earlier in the day I asked the
12 superintendent of Insurance, you're using
13 420 million from the Essential Plan Trust
14 Fund for something called rate enhancements.
15 I'm not quite sure what they are. But, I
16 said, federal law says that the trust fund
17 can only be used to reduce the premiums and
18 cost-sharing of or provide eligible
19 individuals. And I said, how does rate
20 enhancements come in under that?
21 If you have a legal opinion handy that
22 explains that, do not send it to me --
23 because oh, my goodness, that would be
24 attorney-client privilege. So instead, why
415
1 don't you just write me a memo. Because
2 attorney-client privilege doesn't stop you
3 from writing me a memo explaining in some
4 detail legally how that's kosher.
5 MEDICAID DIRECTOR FRESCATORE: May I
6 answer that as a non-attorney?
7 ASSEMBLYMAN GOTTFRIED: Maybe let me
8 finish just because of the clock.
9 MEDICAID DIRECTOR FRESCATORE: Okay.
10 ASSEMBLYMAN GOTTFRIED: The
11 commissioner I think said that "We support
12 the Consumer Directed Program" -- and, Donna,
13 it may have been you who said "No one will
14 lose services."
15 Well, first of all, for years the
16 department has been trying everything it can
17 imagine to eliminate the Consumer Directed
18 Program. So don't tell people you support
19 it, number one.
20 And number two, the reason you're
21 trying to get rid of a whole lot of highly
22 qualified fiscal intermediaries is so that
23 you can more tightly control the program so
24 that people do lose services, because the
416
1 fiscal intermediaries will know that if they
2 don't run a ship that denies people services,
3 they'll lose out on the next round of RFP.
4 The commissioner I think early on said
5 in relation to hydrochloroquil {sic} that the
6 doctor-patient relationship is paramount. We
7 may remind the executive chamber of that when
8 we're in budget negotiations about your
9 proposal to eliminate prescriber prevails.
10 The last thing to note is many times
11 today you've said -- and I'm sure you'll say
12 it many more times -- "We'll get back to
13 you." This is my 34th budget hearing as
14 chair of the Health Committee. I've heard
15 that statement any number of times. I don't
16 know if anybody has ever gotten back to us,
17 certainly virtually never before we were --
18 had to be done doing the budget.
19 So it kind of feels, and I'm doing a
20 lot of literary references today, it kind of
21 feels like Lucy and Charlie Brown and the
22 football.
23 MEDICAID DIRECTOR FRESCATORE: Can we
24 respond in the time that remains,
417
1 Assemblyman?
2 ASSEMBLYMAN GOTTFRIED: Sure. Sure.
3 MEDICAID DIRECTOR FRESCATORE: So on
4 the provider reimbursement, I just -- I want
5 to be clear about what it is. So when the
6 Essential Plan was set up, we needed to make
7 some assumptions about how much a health plan
8 would pay providers to be able to retain a
9 network. Right?
10 The assumption for the population that
11 we're talking about here was Medicaid plus
12 20 percent. What this investment does is it
13 brings that reimbursement rate closer to
14 commercial insurance rates, so as to make
15 certain we preserve access.
16 We believe -- and we can send you your
17 memo, but we believe that that is an
18 appropriate use of the trust fund money
19 because it is services. It's paying more
20 than, you know, a hundred -- instead of $100,
21 paying a hundred and -- you know, or $120,
22 paying $130 for service. Our thinking is it
23 would apply to both inpatient and outpatient.
24 And you know, as we've talked I think
418
1 over the years, that the assumption about
2 provider reimbursement is really important to
3 the access issue.
4 On CDPAPs, we're not trying to
5 eliminate the program. We had a lot of
6 discussion about the fiscal intermediary. I
7 take away from this --
8 THE MODERATOR: We're getting feedback
9 from the commissioner.
10 MEDICAID DIRECTOR FRESCATORE: I take
11 away, you know, from this conversation today
12 that there are concerns about the process
13 that was used to select the fiscal
14 intermediaries.
15 We are in step one of that process.
16 It now will go through any debriefings. If
17 there's protests with the Comptroller's
18 office, then each and every offerer is
19 subject to a vendor responsibility, which is
20 part of the state contracting process. And
21 we -- you know, I hear your concerns today
22 about geography, hear your concerns about,
23 you know, your perceptions of who the good
24 FIs are and who the bad FIs are.
419
1 One of the benefits of this process,
2 when it's all said and done, is we will have
3 quality measures and metrics going forward so
4 we can see and judge the kinds of service --
5 the quality of the service these consumers
6 are receiving.
7 So thank you for letting me answer.
8 ASSEMBLYMAN GOTTFRIED: So just to be
9 clear, doctors and hospitals who treat
10 moderate-income patients on the Essential
11 Plan, they get a rate increase. Doctors and
12 hospitals who treat poor people on Medicaid
13 get a Medicaid cut.
14 MEDICAID DIRECTOR FRESCATORE: So --
15 so --
16 ASSEMBLYMAN GOTTFRIED: Just to be --
17 make sure I heard you right.
18 MEDICAID DIRECTOR FRESCATORE: Well,
19 how the reimbursement has been structured is
20 those individuals who would otherwise have
21 been in the Medicaid program are reimbursed
22 at the Medicaid -- reimbursement is at the
23 Medicaid rate.
24 For those who would have been in
420
1 qualified health plans had we not adopted the
2 Basic Health Program and we would have had
3 commercial rates, was where that increment
4 was.
5 ASSEMBLYMAN GOTTFRIED: So there's a
6 rationale, you say, but the bottom line is
7 moderate-income people, their doctors get
8 paid -- will be paid better tomorrow than
9 they are today. Doctors who treat poor
10 people will be paid worse tomorrow than they
11 are today.
12 MEDICAID DIRECTOR FRESCATORE: No,
13 there's -- not worse. That reimbursement --
14 ASSEMBLYMAN GOTTFRIED: Well, 1
15 percent worse. They're going to have a
16 1 percent cut.
17 MEDICAID DIRECTOR FRESCATORE: I'm
18 sorry, the 1 percent does not apply to the
19 Essential Plan.
20 ASSEMBLYMAN GOTTFRIED: I know that.
21 It applies to Medicaid. Doctors treating
22 Medicaid patients will be paid 1 percent
23 less. Doctors treating moderate-income
24 people on the Essential Plan will be paid
421
1 some percentage more.
2 MEDICAID DIRECTOR FRESCATORE: So I --
3 we will send you the Essential Plan
4 explanation so that you have it, but I wanted
5 to be able to at least explain what that
6 reimbursement was and -- as background today.
7 ASSEMBLYMAN GOTTFRIED: And when do
8 you think you might have that ready to send
9 to me?
10 MEDICAID DIRECTOR FRESCATORE: You
11 know, our folks start working on it tomorrow.
12 And --
13 CHAIRWOMAN WEINSTEIN: Okay, and -- I
14 mean, that needs to be sent to
15 Senator Krueger and myself also.
16 MEDICAID DIRECTOR FRESCATORE: Yes,
17 absolutely. Absolutely. Thank you.
18 CHAIRWOMAN WEINSTEIN: Okay. We're
19 going to move on. Thank you.
20 We're going to go to Assemblywoman
21 Bichotte Hermelyn.
22 ASSEMBLYWOMAN BICHOTTE HERMELYN:
23 Thank you, Chair. Thank you, Commissioner
24 and everyone for being here.
422
1 I just have -- I have a list of
2 things, so I'll just talk about my concerns
3 and you can answer. So first, I do want to
4 thank my colleague for mentioning and
5 addressing the maternal mortality issues and
6 the doula. So certainly I would like to be
7 one who would like to know the update on that
8 issue.
9 And for the record, I do join my
10 colleagues around transparency,
11 accountability and reporting of the nursing
12 home deaths and everything that's happening
13 there.
14 The budget proposed to limit Medicaid
15 reimbursement to include only staffing costs
16 related to contractual arrangements that
17 comply with regulatory requirements. Our
18 state's seniors have been disproportionately
19 affected by this pandemic, and we've seen
20 firsthand, through a loved one, how hard the
21 virus can hit elders. And I'm just wondering
22 how can we be considering any cuts to
23 Medicaid during a global pandemic, especially
24 low-income and marginal communities that were
423
1 hit the hardest.
2 The second question is the budget
3 proposes to require PPEs through state
4 contracts of over 50,000 be produced in --
5 you know, to be produced made in the U.S.
6 The head of the agency making the purchase
7 can waive this requirement under
8 circumstances related to cost, public
9 interest, availability and timing.
10 During case increases, we saw doctors
11 suffering from PPE shortages. How can we
12 ensure that our supplies always meet our
13 demand? Also, I know there were some issues
14 around MWBEs being left out of the
15 procurement process. I'm very interested in
16 knowing that because, again, MWBEs, their
17 communities are the ones that were hit the
18 hardest.
19 Telehealth is very important. I want
20 to thank you for expanding that. But I
21 haven't seen anything about language access.
22 My mother is elderly; I know everything about
23 a lot of managed long-term care and Medicaid
24 and Medicare. And she uses a flip phone, so
424
1 I have to be on three-way to speak to the
2 doctor and her because there's a language
3 access issue.
4 So I definitely want to see if there's
5 anybody who's translating, you know, in her
6 language and other people's languages --
7 Haitian Creole, Spanish, Russian, Polish.
8 I just want to say that I am
9 supportive of repealing the Medicaid Global
10 Spending Cap. I'm in support of a safe
11 staffing ratio to increase -- we need to
12 address that for nursing homes and hospitals.
13 Access to coverage for immigrants, who are
14 currently ineligible. And I also agree with
15 my Senator in terms of raising revenue,
16 Invest in Our New York to ensure that our
17 safety-net hospitals are covered.
18 Lastly, under managed long-term care,
19 I am concerned about the home care workforce
20 recruitment and retention. And I think more
21 than ever we need to make sure that we
22 invest, because home care workers are needed
23 drastically. Thank you -- desperately.
24 Thank you.
425
1 CHAIRWOMAN WEINSTEIN: Thank you.
2 To the extent that there are some
3 questions there, we appreciate the responses
4 sent to Senator Krueger and myself.
5 Next we go to Assemblywoman Byrnes.
6 ASSEMBLYWOMAN BYRNES: Are we there?
7 Hang on. Hang on. Are we up?
8 CHAIRWOMAN WEINSTEIN: There you are.
9 Go ahead.
10 ASSEMBLYWOMAN BYRNES: All right,
11 thank you very much. I want to thank you,
12 Madam Chair, and Dr. Zucker for being here
13 today.
14 And I want to note, first of all, that
15 earlier, Dr. Zucker, there were some
16 statements you made when chatting with other
17 Assemblymembers, and I just want to put
18 something into the record. "This preliminary
19 data for the 62 facilities, in time periods
20 noted above, suggest that COVID-19 resident
21 deaths associated with nursing homes in
22 New York State appeared to be undercounted by
23 DOH by approximately 50 percent."
24 With deepest regard, sir, that was not
426
1 the headline, that was the conclusion of the
2 Attorney General report. What I really would
3 like to go and chat about right now, however,
4 is going back to what Mr. Gottfried talked
5 about many hours ago, and that is the CDPAP
6 program and the fact that it's being reduced
7 to 68 agencies.
8 The reason I want to talk about it is
9 because it does appear to be eliminating a
10 really important program in the City of
11 Rochester community, All-American Home Care,
12 a fantastic business.
13 When they received the application
14 recently they were told that after it was
15 filled out there would be a debriefing, they
16 would be given strengths, weaknesses, a
17 score, and an opportunity to protest should
18 they disagree with the finding. After the
19 application was filled out, then they
20 received a score but no strengths, no
21 weaknesses. They had five days to protest,
22 but nothing to protest from, because no
23 information.
24 So, Dr. Zucker, what I would really
427
1 like to know, sir, is when you have a
2 company, good company, that is given a report
3 with no strengths and weaknesses to even
4 attempt to protest from, are you going to be
5 extending the deadline, that five day
6 deadline to protest, so that they have a fair
7 and reasonable opportunity and due process
8 right to be heard on their business?
9 Obviously you can't protest a score without
10 knowing how the score was even developed.
11 Dr. Zucker?
12 COMMISSIONER ZUCKER: So I think that
13 everyone should have due process. So I'd
14 like to look at this -- the information
15 further. I don't want to make a comment on
16 something which I don't have all the facts.
17 I have your facts of what you've presented,
18 but I'd like to take a look at all the
19 information. But I am a big supporter of
20 making sure that everyone has an opportunity
21 to be heard.
22 ASSEMBLYWOMAN BYRNES: Would you -- if
23 this is -- what I'm saying is true, would you
24 extend the deadline to protest?
428
1 COMMISSIONER ZUCKER: I need to --
2 MEDICAID DIRECTOR FRESCATORE: So let
3 me -- let me, if I can, Dr. Zucker, jump in,
4 because I think I've touched on this before.
5 And that is that hearing concerns, you're
6 right, any offer that was told that their
7 proposal was not accepted first got a letter
8 offering a debriefing and some basic
9 information with an invitation for them to
10 come back and learn now. We are now getting
11 those requests, we are handling and
12 processing those requests.
13 As to the five days, I don't know when
14 that clock starts counting, but I will go
15 back and take a look at it. I would agree
16 that until there's an opportunity for an
17 offerer to hear about what their strengths
18 and weaknesses were, in the judgment of the
19 department, they should not have to file a
20 protest.
21 That protest, by the way, is with the
22 Comptroller's office. I will go back and
23 look at the timing of that. I appreciate you
24 raising that point, which was not raised
429
1 earlier, about the five days.
2 ASSEMBLYWOMAN BYRNES: I can provide
3 you the information on the name of the
4 company.
5 MEDICAID DIRECTOR FRESCATORE: Yeah.
6 I mean, it would apply, the requirement is
7 across all of the offerers. So I appreciate
8 you telling me the company, but it's not
9 needed for us to look at that.
10 ASSEMBLYWOMAN BYRNES: Thank you,
11 ma'am.
12 CHAIRWOMAN WEINSTEIN: Thank you.
13 Assemblyman Norris.
14 ASSEMBLYMAN NORRIS: Thank you,
15 Madam Chair. And thank you, Commissioner,
16 for the opportunity to speak.
17 I first want to just thank you and
18 your team. I live in Lockport, New York. I
19 represent Lockport and eastern Niagara
20 County. And your team has been very, very
21 helpful with our local hospital, and
22 certainly during these trying times. And
23 they will be going to a modified facility in
24 time, and I would just hope that you will
430
1 continue to provide the assistance, and your
2 team, because we are very grateful for that.
3 The rural areas all throughout
4 New York State, but particularly here, it's
5 very, very important for a hospital system in
6 this new hub, it's going to be very
7 important. So I thank the department for
8 that.
9 Regarding the trust that you've talked
10 about, and the openness, I just want to
11 remind you that it's very, very important as
12 we move forward, when we're dealing certainly
13 with the public, that the trust and the
14 openness from you in particular is done.
15 Because as we're dealing with the
16 vaccinations, which quite frankly has been a
17 disaster in terms of the rollout -- and I
18 understand the supply issue that you've
19 raised, but also we need to get our schools
20 open and we need to get our businesses fully
21 operational as we deal with this pandemic.
22 So I just encourage you to please come
23 back. I've sat through all of your testimony
24 today, and I appreciate the testimony, but
431
1 there are many more issues that need to be
2 addressed.
3 And I would like to just ask, for
4 clarification purposes -- in terms of COVID
5 deaths, one COVID death is too many. My
6 heart breaks for everyone who lost someone
7 because of COVID. But could you provide
8 clarification to me and my constituents?
9 Because I've asked in three letters to you
10 how a COVID-19 death is classified and how is
11 it exactly determined. Is it the death
12 certificate that is used? And is it the
13 consequences or the major cause used under
14 those criteria?
15 And secondly, in terms of the
16 vaccination rollout, I would like to just
17 implore you to please simplify the process.
18 My office and my constituents are extremely
19 frustrated. Obviously it's difficult for
20 them to get appointments. They're spending
21 hours and hours, and I implore you and the
22 administration to make this process
23 streamlined as we move forward, to provide
24 that credibility to ensure that our residents
432
1 are vaccinated in due time when the supply
2 comes and we have a plan to do that.
3 And particularly using our businesses
4 as mobile sites, go right to the businesses,
5 if you can, to make sure -- many people
6 employed, hundreds of people -- and also into
7 our doctor's offices. When can we expect the
8 vaccinations into our doctor's offices?
9 Thank you very much for your time,
10 Dr. Zucker.
11 COMMISSIONER ZUCKER: Thank you.
12 And we are working to get it into
13 doctor's offices, and we're working to roll
14 out the vaccination plan across the -- more
15 aggressively. I mean, we're pretty darn
16 aggressive right now. The issue comes back
17 to what I said originally, which is this is a
18 supply-and-demand issue. And hopefully when
19 we have more vaccine, we will be able to get
20 it out. I hear you on that.
21 I agree with you that any death from
22 COVID or, for that matter, from anything is
23 always tragic and affects a lot of families.
24 I know that your time is out, and I'm not
433
1 sure whether the chair wants me to respond.
2 I can give you some --
3 CHAIRWOMAN WEINSTEIN: Why don't you
4 respond in writing. We've kept you here so
5 long, and we still have --
6 COMMISSIONER ZUCKER: Okay. Okay,
7 fine.
8 CHAIRWOMAN WEINSTEIN: -- four-plus
9 members to ask questions.
10 ASSEMBLYMAN NORRIS: I would like a
11 written response to that. I would really
12 appreciate a written response to the
13 question.
14 CHAIRWOMAN WEINSTEIN: We'll get
15 written responses for all of these questions.
16 We're giving the commissioner a lot of
17 homework.
18 Assemblywoman Hyndman.
19 ASSEMBLYWOMAN HYNDMAN: Thank you,
20 Chair Weinstein.
21 I'm going to give the commissioner
22 some more homework. Sorry about that.
23 My -- I have a couple of questions on
24 a different tack. See, I'm an advocate for
434
1 sickle cell, as it greatly affects
2 African-American communities. And a lot of
3 the CBOs have told me that there's a delay in
4 accessing funds for sickle cell. And my
5 question, what could be causing that delay
6 and what can we do to streamline it, as
7 sickle cell patients during this pandemic are
8 obviously greatly affected because their
9 immune system is severely compromised.
10 That's my first question.
11 My second question is I'm an advocate
12 for wastewater testing, which has shown
13 surprising results of detecting pandemic
14 spikes in tests that have been done by
15 Syracuse University. Is there any move by
16 the Department of Health to put this on a
17 statewide level so with pandemics in the
18 future we could test wastewater?
19 And the last part I have is
20 St. Alban's Veterans Nursing Home is in my
21 district. And as you know, Blacks and
22 Latinos are very hesitant to take the
23 vaccine. We have mass testing next door in a
24 fellow Assemblymember's district, but there's
435
1 really some problems in messaging. And
2 what's happened, a lot of people are looking
3 at that story from the city and saying, Why
4 would I get testing if people are
5 experimenting again on African-Americans?
6 Even though St. Alban's Veterans Nursing Home
7 isn't predominantly African-Americans, it's
8 veterans. But still a very vulnerable
9 population.
10 So if anything, we are trying to do
11 mass marketing to get people to get the
12 vaccinations, but it's -- definitely people
13 are very hesitant. So anything you could
14 provide in a way that -- I'd appreciate it.
15 And those are my questions. I'd appreciate
16 if I could get a response -- not now, but
17 definitely through the chairs. Thank you.
18 COMMISSIONER ZUCKER: You're welcome.
19 I can answer those quickly right now.
20 First issue on the access to funds, yes,
21 sickle cell disease is something we have been
22 very focused on. And you are absolutely
23 correct, there is a risk of those who have
24 sickle cell disease that they're at risk of
436
1 clot and sickle cell crises. And with this
2 disease, I can see how it's easily
3 exacerbated. And it is one of the reasons
4 that we need to make sure that all those who
5 have sickle cell are vaccinated.
6 On the wastewater issue, we actually
7 are looking at this and we have looked at
8 this across the state. It is a very good
9 point that you raise; that is a way to pick
10 this up earlier. It's also a way to pick up
11 a lot of things earlier. And so we have been
12 doing that, and I have my environmental team
13 working on that.
14 On the issue of the veterans homes, no
15 one is experimenting on anyone. Please, if
16 you can -- I carry that message out there,
17 and if you can please carry that message out
18 for me as well, that would be great.
19 The -- we -- it goes back to what we
20 said before, and I know we've spoken about
21 this already, about trust. And I really
22 would ask that everyone carry the message the
23 vaccine is safe, it's effective, the more
24 people vaccinated, the sooner we'll get
437
1 through this whole pandemic.
2 But no one is experimenting on anyone.
3 I know this is something which has surfaced
4 and there's this hesitancy and worry, but I
5 please wish that you would bring that message
6 back to your community as well.
7 ASSEMBLYWOMAN HYNDMAN: Thank you.
8 CHAIRWOMAN WEINSTEIN: Thank you.
9 We're going to go to Assemblywoman
10 Seawright.
11 ASSEMBLYWOMAN SEAWRIGHT: Thank you,
12 Chairwoman. I know it's been a long day, and
13 thank you, Commissioner. I just have three
14 really, really quick questions.
15 I'm getting reports from residents at
16 Coler Hospital, a long-term-care facility on
17 Roosevelt Island in my district, that staff
18 are refusing to be vaccinated. Is there or
19 are there any guidelines from the state that
20 we can mandate an education program for staff
21 in nursing homes to help dispel the myths
22 about the vaccine? That's number one.
23 Number two, should New York State
24 terminate its flagship extramural medical
438
1 research program during this most challenging
2 pandemic when medical research is arguably
3 more important now than in generations?
4 And then third, Asphalt Green. I just
5 want to echo what Senator Hoylman said
6 earlier about a dedicated site in Manhattan
7 for Manhattan residents. Asphalt Green, a
8 large nonprofit facility in Manhattan, has
9 offered to be a vaccine site, and my staff
10 spent many hours frustrated but helping
11 elderly senior citizens in my district sign
12 up for vaccination appointments. Just today
13 I received feedback that on 135th Street
14 people waited over four hours in line to get
15 the second shot and over two hours in line to
16 get the first dose. Many of these were
17 senior citizens with walkers and canes, ready
18 to give up and just leave. And so more has
19 to be done.
20 And so those are my three questions.
21 COMMISSIONER ZUCKER: So on the first
22 one, thank you. On the first one, about
23 better education material, we do a lot of
24 webinars. I can do more, I can address that,
439
1 I can get my staff to do that as well. I
2 understand that staff not getting vaccinated
3 is a big issue.
4 And we can't sort of mandate things
5 the way we did with flu because this is still
6 an experimental -- it's still a, you know --
7 I wouldn't say experimental. It's still not
8 been formally approved. It's an emergency-
9 use authorization. So it's EUA, so you can't
10 get -- put something in place from the
11 government for something that's in an
12 emergency-use authorization. Let me make
13 sure that I'm clear on that. That's number
14 one.
15 Number two, on the extramural research
16 funding, there are other sources of where one
17 can get funding. And we are just, as I said,
18 in a tight budget. And we look at all of
19 these things -- and believe me, my heart goes
20 out to this, as a scientist doctor, one who's
21 done research, you know, I looked at them and
22 I said, This is a little tough. And you take
23 that pause, and you say, well, what else can
24 we do? And those are some of the tough
440
1 decisions you have to make. And I
2 understand -- believe me, I understand the
3 benefit of scientific research.
4 And then number three, I hear you
5 about the Manhattan issue. I heard some of
6 your colleagues mention about maybe using the
7 Javits Center when we have more vaccines
8 primarily for the Manhattan residents. Let
9 me see what we can do. I heard Senator
10 Hoylman's point as well. That's something I
11 can bring back to the team.
12 And actually one more point which ties
13 to this, which is the issue of the elderly.
14 We have a program that we have developed and
15 we're working on to get those who are sort of
16 more homebound to be able to get their
17 vaccine at home. Because we don't want --
18 it's still winter, it's going to be winter
19 for a couple more weeks -- the sooner the
20 better for it to end. But we really don't
21 want people going out. And other people,
22 even it it's summer or spring, it doesn't
23 matter, they can't really get out.
24 So we're trying to figure out a way to
441
1 get them vaccinated as well. So we're
2 working on all of this, and we'll move
3 forward for you.
4 ASSEMBLYWOMAN SEAWRIGHT: Thank you,
5 Doctor.
6 CHAIRWOMAN WEINSTEIN: Assemblyman
7 Palmesano. Phil?
8 ASSEMBLYMAN PALMESANO: Yes. Thank
9 you, Commissioner. Just a couple of quick
10 questions, hopefully.
11 And there's a lot of talk about
12 communication and partnership, and along
13 those lines my first question is, why are our
14 counties not being notified and getting the
15 information on how many vaccines are actually
16 being shipped into their counties, whether at
17 a hospital, nursing home, pharmacy,
18 et cetera?
19 Why not share those details with the
20 counties to let them know where they are,
21 which locations, how many total? Because
22 wouldn't that help them be better able to
23 communicate and effectively take care of the
24 residents in their communities?
442
1 COMMISSIONER ZUCKER: I think the
2 information is getting there, but let me find
3 out for you what the catch is. I know we're
4 working very closely with the local -- the
5 counties and we're in constant contact with
6 the county leadership as well as the local
7 health departments. So there should be that
8 communication.
9 If there's some daylight between
10 there, let me see what we could do.
11 ASSEMBLYMAN PALMESANO: That would be
12 helpful.
13 Relative to state distribution sites,
14 you know, being from the Southern Tier, you
15 know, we have -- you know, in the rural areas
16 where some of our residents are an hour-plus
17 away from Binghamton or Rochester, you know,
18 there's some concerns in rural areas, I know
19 some of the other people mentioned that,
20 about getting limited access.
21 I know it's just a supply and demand
22 issue, but why -- what are you working to do
23 to try to help ensure fairness in that? Why
24 not allow our counties to be more
443
1 participating in that process as far as the
2 state distribution sites?
3 COMMISSIONER ZUCKER: And that's what
4 I was saying, we're working with the local
5 health departments. And I'll find out,
6 particularly in your area that you represent,
7 as to which counties specifically and what
8 has transpired.
9 ASSEMBLYMAN PALMESANO: That would be
10 great. Because even if it would be like
11 mobile units or have set up different
12 transportation units, things like that, to
13 provide that access.
14 COMMISSIONER ZUCKER: We actually
15 spoke about that, at one point, about the
16 mobile unit issue. So these are things that
17 have been in the mix.
18 ASSEMBLYMAN PALMESANO: Great.
19 One other question is relative to
20 residency limitations, why are residency
21 limitations in place at New York City sites
22 but no such residency or regional-type
23 residency requirements at like the upstate
24 points of distribution?
444
1 Because, you know, I've heard stories
2 where -- and I can understand why --
3 residents from New York City coming and
4 traveling upstate and taking up slots that
5 are at some of these upstate facilities. I
6 understand why. If you have vaccine
7 availability, you're going to take that.
8 But if there's restrictions on access
9 to the New York City sites, why not have
10 similar regional restrictions on the upstate
11 sites, which have limited access?
12 COMMISSIONER ZUCKER: So we have been
13 tracking that issue. And I'll have to sort
14 out what the -- and I understand what you're
15 saying as to sort of make sure it's focused
16 on the region where somebody is presently --
17 or is a resident. Let me look into that.
18 But we do track that. We do track
19 these numbers, actually, as to where someone
20 is getting the vaccine and which county,
21 whether they're traveling also. So generally
22 it's the percentage that are in each region
23 is very high. So if there's something in a
24 particular region where it's dropped down,
445
1 then we should figure out specifically what's
2 happening in that specific part of the state.
3 ASSEMBLYMAN PALMESANO: Thank you,
4 Commissioner.
5 CHAIRWOMAN WEINSTEIN: Thank you.
6 I think we're going to go back to the
7 Senate. We have a new Senate entry.
8 CHAIRWOMAN KRUEGER: We do, thank you
9 very much. We have Senator Jeremy Cooney
10 from Rochester.
11 Although just to answer as a New York
12 City resident, we go looking for vaccines
13 everywhere. The only place we've ever found
14 them are Plattsburgh, which is a really,
15 really long trip from New York City, just
16 saying. Unless you represent Plattsburgh.
17 But I think that might be the only place
18 you'll run into city people in search of
19 vaccines upstate.
20 Jeremy Cooney.
21 SENATOR COONEY: Thank you,
22 Madam Chair. You're welcome to come up to
23 Potsdam and Syracuse. There's other places
24 too.
446
1 CHAIRWOMAN KRUEGER: Oh, Potsdam,
2 right. Potsdam sometimes.
3 (Laughter.)
4 SENATOR COONEY: Well, Commissioner,
5 thank you for hanging in there with us today.
6 I represent the 56th Senate District,
7 which is in Monroe County, the greater
8 Rochester area. I want to thank you for
9 helping us get this FEMA site in my district,
10 the former Kodak Hawkeye Plant. This is
11 obviously targeting a number of zip codes
12 specifically within our Black and brown
13 communities, which are represented in my
14 district.
15 And it's been a challenge to try to
16 get people ready to go in and get an
17 appointment before March 3rd. I know that
18 your team is working very hard. Certainly my
19 office and the other state legislators are
20 working very hard. My question to you, and
21 my ask for your consideration, is that we
22 possibly extend the exclusive period for
23 individuals who are qualified to meet
24 these -- to receive these vaccinations in
447
1 these zip codes by an additional week so that
2 we can get more of this underserved
3 population vaccinated.
4 In my district I represent the Town of
5 Brighton. Over 22 percent of Brighton has
6 received the vaccine that's eligible. It's
7 under 10 percent, sometimes under 5 percent
8 in the urban portions of my district. So
9 we're trying to make sure that there's equity
10 and fairness. I understand that you get
11 that. So hopefully you'll be able to
12 consider this request.
13 COMMISSIONER ZUCKER: I hear you.
14 Thank you.
15 CHAIRWOMAN WEINSTEIN: So now we go
16 back to Assemblyman Salka.
17 ASSEMBLYMAN SALKA: Got to get my
18 video going here. Okay.
19 Commissioner, thank you very much for
20 your time today. It's been a long day, I'm
21 sure. But being a physician, you know what
22 long days are all about.
23 I would like to discuss the cut, the
24 20 percent cut in the CPH, the Committee for
448
1 Physician Health. We know that our providers
2 now, from physicians, nurses, therapists and
3 lab staff -- it runs the gamut of people that
4 are providing services that are in our health
5 institutions, but the physician has always
6 been the team leader, if you will. And we
7 notice that there was a 20 percent cut in a
8 program or -- that in fact provides support
9 services for physicians.
10 And I just would like to know what the
11 justification is for that. And I would urge
12 you to reconsider that, only because we
13 understand that as important as physicians
14 are now, more important than ever in
15 providing the healthcare needs for our
16 community with the pandemic, this is
17 something that I would find that would be
18 damaging to the quality of care that we can
19 give.
20 Physicians are -- especially in
21 upstate New York -- are very hard to come by.
22 Recruiting physicians, especially specialists
23 in rural hospitals, where I was on staff for
24 a number of years, is extremely difficult.
449
1 So I would urge you to reconsider that cut.
2 And as a matter of fact, it would be great if
3 that program could even be propped up a bit
4 in such challenging times.
5 The other issue that I did want to
6 bring up, and I want to concur and do some
7 additional lobbying, is the vaccine rollout.
8 Back in January I did send a letter to your
9 office and the Governor's office suggesting
10 that maybe a hotline could be set up for our
11 seniors. Because as we know, a lot of them
12 aren't really computer literate. And for
13 them to be able to use their landlines, or
14 maybe if they do have a cellphone, it becomes
15 a little bit easier.
16 So I would urge you to at least look
17 at the possibility of setting up some kind of
18 better line of communication so that our
19 seniors can make the appointments.
20 And I voice a lot of frustration, too,
21 of my constituents that have attempted to
22 reach out to whatever respective lines are
23 out there, only to be placed on hold for 15,
24 20 minutes, and then the line goes dead.
450
1 So we've got some work to do on our
2 vaccine rollout and our setting up of
3 appointments.
4 COMMISSIONER ZUCKER: So two things.
5 One is some of those 20 percent cuts
6 may likely be restored, we could talk about
7 that. So that's a positive.
8 And there is a hotline. We do have a
9 hotline, I just don't have the number off the
10 top of my head. But there is a hotline.
11 ASSEMBLYMAN SALKA: For seniors
12 exclusively.
13 COMMISSIONER ZUCKER: Oh, you're
14 interested exclusively -- I think that's our
15 overall hotline. But --
16 ASSEMBLYMAN SALKA: They're having a
17 tough time with it.
18 COMMISSIONER ZUCKER: I know they are.
19 I know they are.
20 ASSEMBLYMAN SALKA: They are. And
21 they need the vaccine more than ever. And
22 some of them are in near panic when they call
23 our office.
24 COMMISSIONER ZUCKER: That's why we're
451
1 trying to figure out what are other ways to
2 get them vaccinated and to work with the
3 community to get those who are eligible to be
4 vaccinated, particularly those, you're right,
5 who don't use a smartphone or the internet.
6 ASSEMBLYMAN SALKA: Thank you,
7 Commissioner.
8 CHAIRWOMAN WEINSTEIN: Thank you.
9 So actually it's hard to believe that
10 I have a question that nobody asked. I
11 assumed somebody would have.
12 So actually you had had a conversation
13 with Assemblywoman Seawright, I think it was
14 mentioned a few other times, about trying to
15 come up with a plan for how we can vaccinate
16 homebound -- primarily homebound elderly.
17 And my question relates to one that I've
18 raised previously with the Governor's office,
19 particularly because I have a district that
20 has a lot of elderly residents.
21 A lot of -- a number of the folks who
22 are homebound are qualified -- are eligible
23 because of their age. Or now because of
24 comorbidities, but they were age-eligible.
452
1 But they don't have paid aides who are
2 eligible to get vaccines even if they are not
3 age-eligible, but they have family members
4 who are below the age of 65 and don't have
5 other health issues that allow them to
6 qualify.
7 And there is a lot of concern amongst
8 these -- the family members that not only are
9 their -- the person they're taking care of
10 who's homebound not having a vaccine, but
11 they themselves can't get a vaccine and are
12 fearful of what happens if they become ill.
13 So, you know, I would hope that
14 there's some plan to look to expand to
15 caregivers. I believe that Massachusetts was
16 doing that, that someone who was living with
17 someone who was homebound.
18 And then the other issue I just want
19 to raise since there's been so much talk
20 about vaccines -- and clearly the supply is
21 limited, and that's recognized. I happen to
22 represent three -- parts of three zip codes
23 in southern Brooklyn that according to the
24 city's seven-day rolling zip code average are
453
1 number 2 with 12.95 percent positivity as of
2 today, the fifth one, and then the seventh
3 one, with 12.37 percent positivity. Again,
4 these are mostly elderly individuals that are
5 constantly calling my office.
6 We're a transit desert, and there
7 isn't a site that's available. I actually
8 have two zip codes that are eligible -- a
9 portion of two zip codes that are now
10 eligible at Medgar Evers, and people have
11 been calling there. But I would just urge
12 that when -- as vaccines become more
13 available, or even before that, to try and
14 focus on a site in southern Brooklyn.
15 And I just wonder if you could address
16 the question, Commissioner, about the family
17 caregivers and when they might be eligible.
18 COMMISSIONER ZUCKER: Sure. So
19 that -- we actually were speaking about this
20 for a period of time. And I hear you. I
21 hear you.
22 One of the things is that when we open
23 this up to preexisting conditions, we feel
24 this opens up a very large population of
454
1 individuals, including many people who are
2 caregivers to those who are elderly. But
3 there is still going to be that pool of
4 individuals who -- maybe the grandchild,
5 perfectly healthy, caring for the grandparent
6 and doesn't fall into that mix. And so we
7 were having some conversations about that,
8 and I will bring it back to the team to see
9 what we can do.
10 But this is not something that hasn't
11 crossed our plate from just our discussions
12 internally about this issue of how do you
13 make sure that person doesn't bring it in and
14 expose someone who's elderly. And that is
15 also part of the reason we do want to get
16 those who are homebound vaccinated as quickly
17 as possible, to give them protection so that
18 they're not at risk.
19 CHAIRWOMAN WEINSTEIN: Thank you.
20 So there are no more questions from
21 the Assembly. So before -- well, I guess it
22 probably is close to dinnertime. We're going
23 to send it back to Senator Krueger. Thank
24 you, Commissioner, for being here and for the
455
1 work you and your team have been doing all
2 along.
3 So Senator Krueger?
4 THE MODERATOR: You're muted, Senator.
5 CHAIRWOMAN KRUEGER: I did get texted
6 one more question, so just for you to either
7 respond to quickly or to put in your written
8 responses.
9 So we're all operating under a
10 declaration of a statewide emergency from
11 COVID. Who decides when the emergency is
12 over? Is that you or someone else? And is
13 there an anticipated date?
14 COMMISSIONER ZUCKER: I think that's a
15 discussion that I will have with the chamber.
16 My ability to provide the public health
17 information to the Governor's team is going
18 to be put into that mix.
19 Right now I would say that we need to
20 see what happens with these variants. Our
21 numbers are coming down, everything is
22 looking really in a positive direction. We
23 went up, as we know, in the spring and we
24 went through that. In the summer we were
456
1 down, then we picked back up. And now we're
2 coming back down. The numbers look good.
3 The more vaccination we get out, the
4 less likely we're going to have a variant.
5 If we don't have a variant that causes a
6 problem or an increased risk of disease
7 spread and/or an increase in the case
8 fatality rate, or just overall illness,
9 severity of illness, then I think we're in
10 the right direction. I hate making any
11 predictions, and so I don't want to predict
12 when that will be, but we will continue to do
13 what we need to do.
14 I will say that we need to maintain
15 the good public health practices that we
16 have, which is obviously the social
17 distancing, the masks, and to wash your
18 hands. I started this whole pandemic
19 discussing that early on when we realized the
20 benefits of masks, and that's where we are
21 right now.
22 And do I -- I would just want to say
23 that we're going to get through this. We'll
24 get through this pandemic, we'll get to the
457
1 other side. I do feel that in many ways this
2 is like other things in other times in
3 history, that things define a generation. So
4 that World War II, the Depression, the civil
5 rights movement, they all just define a
6 generation. This will define a generation.
7 But I really feel what the most
8 important thing for us to do is to stay
9 together and to recognize the whole humanity
10 factor involved here and that we all need to
11 not -- to trust each other and to recognize
12 that compassion, integrity and courage and
13 just being together as a society is helpful.
14 And I think this virus has really just
15 caused significant problems for all of us.
16 We're not used to being separate from each
17 other, and the human condition has been
18 affected. And the virus doesn't care about
19 wealth or prestige or power or fame or
20 fortune anything, it just hits everyone.
21 But the best way, I feel, is to
22 improve -- to get through this is to realize
23 we touch tomorrow the best by helping each
24 other today. And we'll get there. And
458
1 whatever I can do as the head of the
2 department, I will do. I've heard all your
3 concerns. I will address them. And we will
4 keep pushing forward. And this is not easy.
5 It's not easy for any of us. And I wish
6 everyone their health and safety and the best
7 to their families.
8 And I say to all those who lost their
9 relatives, I feel for them. I feel for them.
10 I feel for the loss to them, to their
11 families. It's very hard. And I wish you --
12 I wish you well and I wish you strength in
13 getting through the difficult time.
14 So thank you.
15 CHAIRWOMAN KRUEGER: Thank you both
16 for being with us today.
17 And since we have 48 more people
18 signed up to testify before us, we are going
19 to stay together except for perhaps the two
20 of you. But if you want to keep someone
21 listening, everyone's issues will also be
22 issues for the department. So with that,
23 thank you both very much for all of your time
24 with us today.
459
1 And I'm going to call up our last
2 government testifier, Erin Ives, acting
3 inspector general, New York State Office of
4 the Medicaid Inspector General.
5 And I'm seeing whether he has popped
6 up in a box anywhere. Are you with us? So
7 you thought we'd never be done. Oh, okay.
8 Oh, hello. I keep referring to you by
9 the wrong gender. I apologize.
10 ACTING MEDICAID INSPECTOR IVES:
11 That's okay. There was a little typo, so
12 I'll use it as my alias for testimony today.
13 CHAIRWOMAN KRUEGER: Now you've outed
14 yourself, you're here with us, welcome.
15 ACTING MEDICAID INSPECTOR IVES: Thank
16 you.
17 CHAIRWOMAN KRUEGER: We're going to
18 set the clock at 10 minutes and let everybody
19 listen or review your testimony, which is
20 available to all of us on the computer
21 screen. Okay.
22 ACTING MEDICAID INSPECTOR IVES: Thank
23 you. Good afternoon, Chairwoman Krueger,
24 Chairwoman Weinstein, distinguished members
460
1 of the Senate Finance and Assembly Ways and
2 Means committees, and Health Committee chairs
3 Senator Rivera and Assemblyman Gottfried. I
4 appreciate this opportunity to share with you
5 the activities and initiatives of the Office
6 of the Medicaid Inspector General.
7 The ongoing COVID-19 pandemic has
8 impacted every facet of the healthcare
9 delivery system, business and economic
10 sectors, and the daily lives of each and
11 every American. Without question, New York's
12 health providers continue to face
13 unprecedented challenges during this public
14 health emergency.
15 Like all health providers and state
16 and local agencies, OMIG quickly adapted its
17 processes to ensure continuation of the
18 agency's critical work. At the same time,
19 OMIG recognized the unrelenting stressors
20 COVID imposed upon the provider community.
21 To that end, throughout the pandemic OMIG has
22 worked closely with individual providers,
23 associations and other stakeholders to share
24 information, establish mutually agreed upon
461
1 time frames and practices related to audit
2 processes, and address issues and concerns
3 resulting from this new health care delivery
4 system landscape.
5 Specifically, to protect the health
6 and safety of OMIG staff and the provider
7 community, our audits have been conducted
8 remotely; information and documentation are
9 communicated and shared electronically.
10 Further, in addition to these audit activity
11 modifications, OMIG has equipped staff with
12 the resources needed to remotely perform
13 agency functions.
14 I am also proud of the many OMIG staff
15 who stepped up to the challenge and
16 volunteered their time to support various
17 critical initiatives to battle the pandemic
18 and help New Yorkers during these
19 unprecedented times. These efforts, while
20 critical to protecting health and safety
21 during the current crisis, will serve the
22 agency and the state well going forward and
23 reflect the Governor's commitment that
24 New York build back better.
462
1 Throughout the pandemic, these efforts
2 resulted in OMIG achieving two key
3 objectives: First, protect the integrity of
4 the Medicaid program; and second, maintain
5 open communications and understanding with
6 program stakeholders to avoid imposing
7 unnecessary burdens on a health care delivery
8 system under siege by the COVID virus and
9 ensure that, most importantly, New Yorkers'
10 access to health care services is sustained
11 to the best extent possible.
12 These collaborative efforts have
13 enabled OMIG to both deliver on its mission
14 to protect the integrity of the Medicaid
15 program while supporting the provider
16 community's unwavering commitment to deliver
17 health care services under the most dire
18 circumstances.
19 For example, preliminary 2020
20 calendar-year figures for the agency's cost
21 savings and Medicaid recoveries are estimated
22 at more than $2.9 billion. Breaking that
23 down, OMIG's proactive cost-avoidance
24 measures alone delivered estimated savings of
463
1 more than $2.4 billion. OMIG recoveries --
2 including audits, third-party liability, and
3 investigations -- total more than
4 $558 million.
5 Throughout 2020, OMIG also continued
6 to focus on managed-care-related program
7 integrity initiatives. For example, OMIG's
8 various match-based audits and data analyses
9 efforts resulted in 419 finalized audits with
10 more than $159 million in recoveries.
11 As part of its collaborative effort to
12 protect the Medicaid program, OMIG continues
13 to work closely with managed care
14 organizations and their special investigation
15 units to address network provider fraud,
16 waste, and abuse.
17 Also, through legislation enacted in
18 2019 designed to hold MCOs accountable for
19 the program integrity obligations outlined in
20 their contract with the state, OMIG in 2020
21 continued reviews of each of New York's
22 15 mainstream MCOs to assess their compliance
23 with contractual standards that prevent
24 fraud, waste or abuse.
464
1 In addition to the mainstream plans,
2 OMIG will review managed long-term-care
3 plans' compliance with contractual standards.
4 These managed-care reviews constitute an
5 essential component of OMIG's program
6 integrity efforts in the managed-care arena.
7 Also OMIG, in collaboration with its
8 sister agencies and numerous stakeholders,
9 continues to play a critical role in
10 implementing MRT II initiatives designed to
11 enhance accountability and oversight while
12 improving access to high-quality healthcare
13 services.
14 Rooting out fraud, waste and abuse in
15 the Medicaid program is central to OMIG's
16 work. To that end, the agency maintains
17 strong partnerships with law enforcement and
18 agencies at the local, state and federal
19 levels. OMIG investigators, auditors, data
20 analysts, and other licensed healthcare
21 professionals work closely with agency
22 partners to help identify and hold
23 accountable those who seek to exploit the
24 Medicaid program for personal gain.
465
1 For example, in 2020 OMIG worked
2 closely with the New York City Special
3 Narcotics Prosecutor and other law
4 enforcement partners in a joint investigative
5 effort that led to the arrests of a
6 Manhattan-based psychiatrist and a medical
7 assistant for their alleged roles in selling
8 prescriptions for addictive controlled
9 substances drugs -- with no legitimate
10 medical purpose -- for cash. The
11 investigation revealed a blatant disregard of
12 both the healthcare professionals' oaths to
13 do no harm as well as the rule of law.
14 OMIG will continue to work with its
15 law enforcement and government partners to
16 hold fully accountable those who jeopardize
17 the health and safety of the most vulnerable
18 New Yorkers by attempting to defraud the
19 Medicaid program.
20 Now more than ever, OMIG's
21 comprehensive Medicaid program integrity
22 efforts serve to help sustain New York’s
23 healthcare delivery system. Our office looks
24 forward to continuing our work with
466
1 providers, stakeholders, and our partners at
2 every level to overcome the challenges before
3 us and to seize renewed opportunities to
4 enhance Medicaid program integrity today and
5 tomorrow.
6 Thank you, and I'm pleased to address
7 any questions you may have.
8 CHAIRWOMAN KRUEGER: Thank you very
9 much.
10 And let's see -- we have hands up, but
11 I want to make sure I double-check with our
12 chairs. Senator Rivera, do you have any
13 questions for --
14 SENATOR RIVERA: Good for the moment,
15 Madam.
16 CHAIRWOMAN KRUEGER: Fine. Then I'm
17 going to move to Senator Harckham, who I know
18 had his hand up first.
19 Are you there, Pete?
20 SENATOR HARCKHAM: Yeah, I'm just
21 trying to unmute and start my video. There
22 we go. Thank you very much, Madam Chair.
23 Inspector, thank you so much. Good to
24 see you, even though my screen is blocked,
467
1 but -- there we go. Thank you very much.
2 Thank you for your testimony.
3 I want to talk about -- you spoke
4 about wanting to avoid unnecessary burdens in
5 your investigations and their outcome. And I
6 think we can all agree that we want to weed
7 out fraud and abuse. But I want to talk
8 about audits of opioid treatment providers.
9 There was one in New York City that found
10 $400 in administrative fraud, ended up with
11 over a $7 million penalty. They ended up
12 closing their doors. Fifteen-hundred
13 medication-assisted-treatment patients lost
14 those slots.
15 Another ongoing investigation in
16 Western New York, similar thing -- $800 in
17 administrative issues that led to about a
18 $4 million price tag. And that is going to
19 be closing, another 1500 medication-assisted-
20 treatment slots.
21 We're in the midst of an opioid death
22 crisis. Do you think that's good public
23 policy that when there's no blatant fraud or
24 abuse or theft from New York State, to be
468
1 ending 3,000 medication-assisted-treatment
2 slots when it's nearly impossible to start
3 new slots?
4 ACTING MEDICAID INSPECTOR IVES:
5 Senator, thank you for the question.
6 To start, we do recognize the vital
7 services these programs provide. And we do
8 recognize, particularly right now, with the
9 health crisis and the opioid crisis, how
10 important those services are.
11 I do want to clarify. OMIG is not
12 responsible for closing programs. We do
13 perform these audits. We think they perform
14 a critical function in terms of just
15 reviewing and making sure that the programs
16 are meeting the necessary requirements as
17 outlined by the federal government. And part
18 of why we do these audits, and a very
19 important reason, is if we don't test to make
20 sure that the programs are meeting the
21 federal requirements, the federal government
22 can come in themselves and perform these
23 audits, which jeopardizes the funding right
24 at its base for providing these services.
469
1 So we do recognize this. We have
2 heard the concerns that were raised. We also
3 work on a case-by-case basis with each of the
4 auditees. I am familiar with the audit
5 you're speaking of in Western New York, and
6 we are in communication with that provider
7 group at this point.
8 But I do want to stress how important
9 we see these programs to be, and working with
10 these providers on a case-by-case basis on
11 each of these audits.
12 SENATOR HARCKHAM: Well, I would just
13 say -- and thank you for that. But is there
14 no discussion internally that if we fine
15 these people $7 million, they're going to
16 close their door? I mean, aren't there ways
17 to have administrative sanctions and policies
18 put in place -- probation, something to keep
19 the doors open so that we're not risking 1500
20 people's lives?
21 ACTING MEDICAID INSPECTOR IVES: Yes.
22 And obviously that is a big concern. We
23 would never want to risk anyone's safety.
24 That would be contrary to our mission right
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1 at its heart.
2 We do work hand in hand, like I said,
3 with our partner agencies to look at that and
4 are constantly reviewing policies to see
5 where we may need to make improvements. But
6 I would like to stress we work with each
7 auditee individually on their audits. We do
8 have opportunities available for -- if
9 providers are having financial hardship, they
10 can go through a process with our agency.
11 But also throughout the audit process we
12 stress communication and getting as much
13 documentation as we can to support the
14 services that they're providing to make sure
15 that it is in line with program requirements.
16 SENATOR HARCKHAM: Well, that's my
17 time. I'd like to follow up offline. Thank
18 you, Investigator.
19 ACTING MEDICAID INSPECTOR IVES: Thank
20 you.
21 CHAIRWOMAN KRUEGER: Assembly?
22 CHAIRWOMAN WEINSTEIN: Yes, we have
23 Assemblyman Byrne, the ranker on Health,
24 five minutes.
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1 ASSEMBLYMAN BYRNE: Yes, thank you.
2 And I don't think I'll have to use the whole
3 five minutes, which I'm sure my colleagues
4 will appreciate.
5 And I just want to say, you know,
6 thank you for your work. Again, as you said
7 earlier, obviously we do want to eliminate as
8 much fraud, waste and abuse as we possibly
9 can. And I understand your efforts to ensure
10 Medicaid integrity. And that doesn't stop,
11 obviously, throughout the course of this
12 pandemic, and in many ways your audit work is
13 even more important now than ever.
14 Yet I have heard from various home
15 care providers that some of the OMIG
16 audits are being approached as if we're not
17 living in this crazy COVID world. And when
18 auditors can sometimes show up unannounced,
19 some providers aren't always prepared to
20 accommodate a new influx of people arriving
21 on-site, given all the various social
22 distancing policies and pandemic
23 restrictions. And in some cases it's been
24 shared with me that audit teams have
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1 expectations for in-person interviews with
2 provider managers who are justifiably working
3 remotely.
4 So what is OMIG doing to try to make
5 this audit process more flexible, considering
6 the situation that we're all living in? And
7 considering the discussions that you may have
8 heard earlier about expanding telehealth, I
9 would ask if that's, you know, possibly one
10 technology and resource that we could use to
11 try to address some of these concerns.
12 ACTING MEDICAID INSPECTOR IVES: Thank
13 you. We -- {audio glitch}. When the
14 pandemic started, we went to remote and
15 equipped our staff with resources to work
16 remotely. We have been performing our audit
17 activities remotely. We have not been going
18 on sites. So, Assemblyman, if there are
19 specific examples, let's please connect so
20 that I can talk to you about that.
21 But we have done this remotely
22 specifically to make sure that we maintain
23 health and safety of the providers, of the
24 individuals that they're serving, and of our
473
1 staff. So we have communications either
2 through Webex, we accept documentation
3 electronically.
4 And also understanding that, you know,
5 the focus needs to be on the care of the
6 beneficiaries. We have been working to make
7 sure if there needs to be flexibility in
8 terms of time frames for responses, if we
9 need to do things kind of piecemeal and work
10 with them to get responses. We have been
11 trying to be as flexible as we can to make
12 sure that we come to some mutually agreeable
13 time frames and how we're conducting our
14 audits.
15 ASSEMBLYMAN BYRNE: Thank you, ma'am.
16 And as far as the specifics, I will
17 follow up with your office. So if there is
18 any sort of miscommunication, we can have
19 that addressed. And I do thank you for your
20 time and your testimony here this late
21 afternoon, early evening.
22 ACTING MEDICAID INSPECTOR IVES: Thank
23 you.
24 CHAIRWOMAN WEINSTEIN: Thank you. We
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1 go to the Senate.
2 CHAIRWOMAN KRUEGER: I see Senator
3 Rachel May with her hand up.
4 SENATOR MAY: Right. Hi. Thank you
5 for testifying here. Okay, I got my video
6 going.
7 Just one quick question. When we did
8 our hearings last summer about nursing homes,
9 one thing we heard over and over was that the
10 fine structure was such that the operators
11 just built it into their operating budgets
12 and it didn't actually change their behavior.
13 And I'm wondering, what input do you
14 have into the levels of fines? And do you
15 think they are at the level where they do
16 discourage the kinds of behavior that we want
17 to be discouraging?
18 ACTING MEDICAID INSPECTOR IVES: Thank
19 you.
20 To clarify, OMIG performs program
21 integrity oversight in the nursing homes.
22 However, we are limited to looking at the
23 reimbursement rates, the cost reports, and
24 the Medicaid funds that are going into the
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1 nursing homes. So our audits really do focus
2 on the cost-base funds that are going into
3 the nursing homes. So I would feel out of
4 place responding to the fines.
5 SENATOR MAY: All right. Thank you.
6 ACTING MEDICAID INSPECTOR IVES: Thank
7 you.
8 CHAIRWOMAN KRUEGER: Assembly?
9 CHAIRWOMAN WEINSTEIN: We have no one
10 else. I think they used up all their energy
11 with Dr. Zucker.
12 CHAIRWOMAN KRUEGER: I think they did
13 too. Although I do have one question for
14 Erin, to follow up from Senator Harckham's
15 questions.
16 So if -- you really got me on $400 in
17 fines for administrative errors. Is
18 $8 million actually the increased fines that
19 you put on top of that from the State of
20 New York? How could that be the math? Even
21 though you don't know what the provider is
22 and I don't know what that provider is. How
23 could a $400 penalty translate to an
24 $8 million fine?
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1 ACTING MEDICAID INSPECTOR IVES: So to
2 clarify, because I do think it's important
3 terminology. We do audit against
4 overpayments, identified overpayments. So
5 payments that were already made to a provider
6 that show up in the claims.
7 For these audits we review the claims.
8 And I think you've heard us talk before, we
9 use extrapolation -- sampling and
10 extrapolation. So what we do is take a
11 sample of claims and apply, especially at
12 this late hour, very complicated mathematical
13 procedures.
14 But it does -- it's statistically
15 valid. It takes the claims and it reviews
16 across. So the $400 that they're referring
17 to may be for one claim, but that one error
18 may show up across multiple claims in our
19 audit, which is how it gets raised up to the
20 amounts that you're hearing.
21 We have been using this methodology
22 for years across multiple categories of
23 services. It's also used at the federal
24 government for the OIG audits that are
477
1 conducted. And part of our reasoning for
2 doing the audits this way -- I know when you
3 see the end dollar amount, it may have a
4 shock value. But understand that by looking
5 at that and using that statistically valid
6 sample, we're also trying to reduce the
7 administrative burden on providers.
8 We take 100 claims, look at them.
9 Where we identify an error, we do project it
10 out. So that is how you do get to the
11 mathematical totals.
12 CHAIRWOMAN KRUEGER: And so in this
13 storyline you are offering, would that
14 presumably mean the error you found was
15 people who were not eligible for Medicaid
16 coverage of whatever the service was, so when
17 you extrapolate out you're basically clawing
18 back every dollar that went into the program
19 for that patient or that universal patient
20 you think were wrongly evaluated as
21 Medicaid-eligible?
22 ACTING MEDICAID INSPECTOR IVES:
23 Correct, that can be one example that could
24 go across multiple claims for different
478
1 beneficiaries. So it could be a mistake, as
2 you point out, across multiple claims.
3 CHAIRWOMAN KRUEGER: And so there were
4 two examples that Senator Harckham gave you.
5 I mean, are these everywhere in the state?
6 How many per year of this kind of storyline
7 are you seeing?
8 ACTING MEDICAID INSPECTOR IVES: In
9 terms of specifically for the opioid
10 treatment?
11 CHAIRWOMAN KRUEGER: Yeah, we'll stick
12 with that.
13 ACTING MEDICAID INSPECTOR IVES: Okay.
14 We've conducted fewer than 15 audits.
15 And I will tell you that actually, of
16 the audits we've conducted, we finalized five
17 and they're posted on our website. The
18 majority of them have had little to no
19 findings.
20 So what we are seeing is that there
21 are providers who are doing it correctly.
22 There are providers who are meeting all the
23 program requirements. We're pleased to see
24 that and want to see that. But we do have to
479
1 focus on those who may have issues in their
2 programs that we do make sure we protect the
3 funding.
4 I think it's been a theme throughout
5 the day -- I've been listening throughout the
6 day -- to make sure that the resources we do
7 have in the program are protected. So that's
8 where our audits come into play.
9 CHAIRWOMAN KRUEGER: And is it your
10 experience that with this kind of audit where
11 you're finding errors that may total quite a
12 bit of money, that there's fraud involved or
13 just somebody didn't know how to run their
14 program correctly and was making approvals
15 that didn't fit the category of eligibility
16 for the Medicaid program?
17 ACTING MEDICAID INSPECTOR IVES: I'll
18 speak to the audits we've conducted. We have
19 not seen fraud. It does look like there were
20 some program issues, which was why it
21 remained as an audit and ended up with the
22 findings.
23 I think, as you're aware when we've
24 expressed over the years our mission, if we
480
1 do identify fraud, we do make appropriate
2 referrals to law enforcement or to the MFCU.
3 CHAIRWOMAN KRUEGER: And when OMIG was
4 started years ago, I started asking this
5 question every year, so I'm going to ask it
6 now. There are some people who believe when
7 you say Medicaid fraud you're talking about
8 poor people intentionally fraudulently
9 ripping off the Medicaid program.
10 But is that still true that that is
11 not the universe of people that OMIG is
12 finding against, that it's very hard to
13 commit individual Medicaid fraud to your own
14 advantage?
15 ACTING MEDICAID INSPECTOR IVES: We do
16 find that providers -- unfortunately, there
17 are many out there who do take advantage of
18 the Medicaid population. They will use many
19 different schemes to benefit from what is
20 supposed to be these funds going to and
21 services provided to the Medicaid population.
22 So yes, Senator, you're correct.
23 CHAIRWOMAN KRUEGER: All right, that
24 you can't really pull off Medicaid fraud
481
1 without provider participation leading the
2 way. Did I say that correctly?
3 ACTING MEDICAID INSPECTOR IVES: Yes.
4 CHAIRWOMAN KRUEGER: All right, thank
5 you. Thank you for your time today.
6 ACTING MEDICAID INSPECTOR IVES: Thank
7 you.
8 CHAIRWOMAN KRUEGER: Anyone else jump
9 in while we were having that dialogue and
10 need us?
11 CHAIRWOMAN WEINSTEIN: No. No.
12 CHAIRWOMAN KRUEGER: Nope? Then we
13 are going to let you go to continue your day
14 or your work. Thank you very much for your
15 work for the State of New York.
16 ACTING MEDICAID INSPECTOR IVES: Thank
17 you for your time.
18 CHAIRWOMAN KRUEGER: All right. For
19 those of you who have been hanging out hoping
20 we would someday get to the nongovernmental
21 representatives, we are at that point.
22 So you are set up in panels. So I
23 will read out the full panel of people. Then
24 you will each get three minutes to testify.
482
1 Then anyone who wishes to ask questions --
2 again, hand up, the best way to get Helene or
3 my attention, and you have three minutes to
4 ask the entire panel your questions.
5 So not unlike the earlier part of the
6 day, if you really want a more detailed
7 answer, you might be saying, Don't answer me
8 now, I would like your follow-up with me.
9 And I suggest that all of our panelists will
10 be willing to do follow-up with you.
11 Also we have all of your testimony,
12 panelists, and can read that. So please
13 don't feel a need or even try to read us your
14 testimony, because if you're fast enough to
15 read your entire testimony in 3 minutes, you
16 are a very good speed reader, but we won't
17 know what you're saying anyway. So it would
18 be preferable if you each bullet-point your
19 key issues from your testimony. Count on us
20 as legislators to have learned to read. And
21 again, we can follow up with you afterwards,
22 because this all becomes like speed-dating,
23 and we're starting this portion at 5:15 in
24 the afternoon on the last day of hearings.
483
1 So thank you for putting up with us.
2 And the first panel: The Healthcare
3 Association of New York State, Bea Grause;
4 the American College of Ob-Gyns -- excuse me,
5 obstretians -- I can't even do this. I
6 always say ob-gyn because it's easier --
7 Dr. Camille Clare; the New York Society of
8 Physician Assistants, Maureen Regan; the
9 director of the Greater New York Hospital
10 Association, David Rich; and the Visiting
11 Nurse Service of New York, Hany Abdelaal.
12 And we'll just start with Healthcare
13 Association of New York.
14 MS. GRAUSE: Thank you, Chairman
15 Krueger -- Chairwoman Krueger. Good
16 afternoon -- or good evening, almost --
17 CHAIRWOMAN KRUEGER: Almost.
18 MS. GRAUSE: -- Chairs Krueger,
19 Weinstein, Rivera and Gottfried and committee
20 members. My name is Bea Grause, president of
21 HANYS, representing not-for-profit hospitals,
22 health systems, and post-acute-care providers
23 across New York State.
24 We thank you for your continued
484
1 support. HANYS and our members appreciate
2 the difficult state fiscal situation.
3 However, COVID-19 also created unparalleled
4 fiscal challenges for our members. Our
5 members showed up, they worked tirelessly
6 together to coordinate response efforts and
7 ensure the highest level of public and
8 patient safety. We spent billions of dollars
9 to increase capacity, buy supplies and
10 equipment at higher-than-usual prices, and
11 bring in additional staff as needed. And all
12 this was done while, for much of that time,
13 elective surgeries were canceled.
14 A Kaufman, Hall analysis that we
15 conducted for HANYS estimated that over the
16 period of this year, a little more than one
17 year, hospitals across the state will have
18 suffered a 20-to-25-billion-dollar loss in
19 revenue. That's about 30 percent of their
20 revenue. On top of that, that doesn't count
21 the $2 billion in recurring reductions from
22 last year's budget.
23 So in review of this year's budget, we
24 urge you to consider our five principles for
485
1 recommendations. First, do no harm. I think
2 that's obvious. Second, reject cuts, any
3 cuts to Medicaid. Medicaid currently, we
4 estimate, pays about 67 cents on the dollar.
5 Third, strengthen healthcare. And
6 particularly, as was discussed earlier today,
7 the telemedicine and managed-care changes.
8 Fourth, fix harmful policies such as 340B and
9 the indigent care pool, as has been
10 discussed. And finally, support new
11 investments. We urge the Legislature to
12 support the investments that are included in
13 the Executive Budget.
14 Just a couple of quick things. Again,
15 reject the budget's 1 percent
16 across-the-board cut to the Medicaid program.
17 Adopt our proposal, HANYS' proposal, to
18 create a short-term glide path to the newly
19 adopted indigent care pool funding model, and
20 reject this year's proposal to eliminate
21 state support of the public indigent care
22 pool.
23 Delay implementation of the damaging
24 proposal for the 340B drug pricing program.
486
1 We support the increased premiums for the
2 Essential Health Plan. Enact sensible
3 managed-care reforms, including
4 classification of pay-and-pursue policies.
5 We support the enactment of telehealth
6 payment parity. Encourage -- make sure that
7 for-profit health insurers achieve the state
8 budget's Medicaid spending goals while
9 securing justified community reinvestments.
10 And finally improve reimbursement for
11 New York's struggling not-for-profit nursing
12 homes, to ensure that resident care and staff
13 are not shortchanged.
14 This pandemic has proven time and
15 again that our nonprofit hospitals, health
16 systems, post-acute-care providers and their
17 frontline and support staff, are there for
18 all New Yorkers 24/7. And in that context, I
19 want to support Dr. Zucker's March 25th
20 directive.
21 As he has stated, the first reason is
22 because the science is absolutely there, and
23 it's supported by the science. And the
24 second reason is because of the context. Our
487
1 hospitals were in urgent life-and-death
2 situations, and we believe that the directive
3 saved lives at the hospital level.
4 In closing, HANYS is committed to
5 working with you to ensure that the
6 highest-quality care is accessible and
7 affordable to New Yorkers. And we thank you
8 again for your support.
9 This concludes my testimony.
10 CHAIRWOMAN KRUEGER: Thank you.
11 Dr. Clare?
12 DR. CLARE: Good evening, or
13 afternoon. My name is Dr. Camille Clare, and
14 I'm an obstetrician and gynecologist, and I
15 serve as the chair of the American College of
16 Obstetricians and Gynecologists -- yes, it is
17 a mouthful -- ACOG, District II.
18 Thank you for this opportunity to
19 provide testimony on the proposed Executive
20 Budget. We really greatly appreciate the
21 Legislature's work over the past several
22 years to support a variety of maternal
23 mortality prevention initiatives and for
24 enacting legislation to improve New York's
488
1 maternal mortality review process through the
2 creation of the Maternal Mortality Review
3 Board.
4 This review board is critical to
5 identifying the causes and contributing
6 factors in maternal deaths, to address the
7 disparities -- as we know, Black women are
8 three to four times more likely to die of a
9 pregnancy-related death than white women --
10 and importantly, to develop and implement
11 actionable strategies for prevention.
12 The review board is active in its
13 work, and we urge the Legislature to ensure
14 that this work is supported and continues.
15 Secondly, we ask that the Legislature
16 include $250,000 in general operating funds
17 for the Safe Motherhood Initiative. Funding
18 for this program is typically added by the
19 Legislature during the budget process.
20 ACOG's Safe Motherhood Initiative works with
21 obstetrical teams across the state to develop
22 and implement clinical bundles that outline
23 standardized approaches for managing
24 obstetrical emergencies associated with
489
1 maternal mortality and morbidity.
2 Funding is necessary to be responsive
3 to recommendations from the Maternal
4 Mortality Review Board and ensure providers
5 across the state can learn from the reviews,
6 implement actionable strategies for
7 prevention, allow SMI to continue hospital
8 implementation support, enhance safety
9 bundles with a specific focus on health
10 equity and respectful care, and develop a
11 cardiac bundle.
12 We ask you to ensure changes to
13 telehealth that prioritize health equity and
14 access. As a practicing OB-GYN, telehealth
15 is an extremely important and useful tool to
16 me to contact patients during the pandemic.
17 We next ask you to reject physician
18 disciplinary process changes which would
19 disregard essential due process protections
20 when a complaint is filed against a physician
21 to the Office of Professional Medical
22 Conduct. The commissioner already has
23 authority to take summary action prior to the
24 conclusion of disciplinary hearings.
490
1 Finally, we ask you to reject the
2 proposed Excess Medical Liability Program
3 changes which would require physicians who
4 are already experiencing losses due to the
5 pandemic to pay 50 percent of the cost of
6 excess medical malpractice insurance, which
7 is a critical program for high-risk
8 specialties.
9 We appreciate the Legislature standing
10 with the physician community, particularly
11 during this extremely difficult time. Please
12 consider us a continued resource on women's
13 healthcare in the future. I really
14 appreciate the opportunity to meet with you
15 all, and am happy to answer any questions
16 that you may have. Thank you very much.
17 CHAIRWOMAN KRUEGER: Thank you.
18 Maureen.
19 MS. REGAN: Good evening. Thank you
20 very much for the opportunity to present
21 before this committee.
22 The pandemic that we are currently
23 working our way through has shed light on the
24 PA profession and our ability to treat
491
1 patients of every age in every clinical
2 discipline and in every healthcare setting,
3 including home care, school health, mental
4 health, and occupational medicine. We care
5 for those who are critically ill and those
6 seeking primary and preventative care via
7 brick-and-mortar facilities or telemedicine.
8 Health system CEOs, COOs and CMOs
9 across the state turn to PAs to help manage a
10 significant surge volume of patients in the
11 clinical and the administrative space. One
12 CMO stated he didn't really appreciate the
13 impact of PAs, colleagues he has worked with
14 for many years, and that PAs are an
15 invaluable solution based on their education
16 in medicine, their clinical and procedural
17 training, and their flexibility. He stated:
18 "You are the cross between a stem cell and a
19 3D printer."
20 Our ability to be able to respond at
21 this level was primarily due to the action of
22 the executive order setting aside the need
23 for a PA to have a supervising physician.
24 I'd like to speak to the impact of PAs
492
1 across the state over the past year.
2 Speaking with the CEO and CMIO at Urban
3 Health Center, an entity that sponsors
4 multiple federally qualified health centers
5 in the Bronx and Queens, taking care of some
6 of our most vulnerable populations, they must
7 rely on PAs to staff their primary and
8 specialty care clinics. They cannot hire
9 physicians, and when they do, the turnover is
10 significant.
11 The leadership of this federally
12 qualified health center is extremely
13 frustrated that PAs are not recognized by
14 New York State Medicaid managed care as
15 practitioners.
16 Executives who support Medicaid
17 managed care plans are also frustrated that
18 this barrier exists, as their enrollees
19 experience significant delays in getting
20 healthcare appointments.
21 PAs need to be recognized by New York
22 State Medicaid managed care and be able to
23 have their own panels. PAs are doing the
24 work and are addressing the inequity.
493
1 Patients need to be able to find PAs to
2 reduce delays in care, which are forcing
3 increased costs and other detrimental
4 effects.
5 Stakeholders cannot objectively see
6 the impact of the work PAs are doing. There
7 needs to be objective validation when
8 employers look for workforce and care model
9 solutions. All insurance entities in
10 New York State need to enroll PAs as
11 practitioners in their plans.
12 Transparency in who is providing care
13 to our patients is imperative. Our
14 policymakers and our healthcare delivery
15 systems rely on it. The federal government
16 supports direct billing for PAs. I encourage
17 New York State to do the same.
18 Northwell Health has used a PA to
19 guide their employee health, their entire
20 healthcare delivery system. At Noyes
21 Hospital in Finger Lakes, a cardiology PA
22 with emergency management experience was able
23 to transition to run a COVID testing center.
24 In Western New York, the general physician PC
494
1 developed a telehealth model run by their
2 physician leadership along with a PA. PAs in
3 Central New York have been able to do the
4 same for patients who would not have access
5 to care.
6 This pandemic has laid bare many
7 barriers and opportunities to healthcare in
8 New York State. With the support of the
9 Legislature, we look forward to addressing
10 and setting aside administrative barriers.
11 This is not a scope-of-practice issue, nor is
12 it a training issue. It's an imperative to
13 establish equitable care.
14 With all due respect to our valuable
15 physician, pharmacy and nursing colleagues,
16 the PA profession has not been mentioned once
17 in any discussion today, despite being named
18 the number-one profession by U.S. News &
19 World Report in 2021. We need to change
20 that.
21 PAs are often not included in
22 healthcare language and/or bill language,
23 leaving true intent up to interpretation --
24 and more often, misinterpretation -- creating
495
1 confusion and delays. We cannot leave this
2 up to random interpretation of HR
3 departments, recruiters, EMR vendors or
4 practice managers.
5 I ask our legislative colleagues to
6 please reach out to us, as we are a huge
7 resource for the interpretation of the
8 training and scope of PA practice. We
9 welcome the engagement. Please be sure to
10 transparently include PAs in guidance and
11 bill language pertaining to the delivery of
12 healthcare that fall within our education,
13 training and scope. Our public's health and
14 our fiscal health depend on it.
15 Thank you.
16 CHAIRWOMAN KRUEGER: Thank you.
17 Next, David Rich.
18 MR. RICH: Thank you.
19 Last year was like no other. Our
20 hospitals mounted the largest mobilization of
21 healthcare resources in the nation's history.
22 We mourn every patient that died. But we are
23 also proud of the brave women and men in our
24 institutions who cared for and safely
496
1 discharged 145,000 patients since February.
2 They pioneered innovations that have been
3 replicated around the world. They used
4 resources no hospitals had ever been asked to
5 use before. They saved thousands of lives,
6 and we owe them a huge debt of gratitude.
7 But all of this came at great
8 emotional and financial cost. Hospital
9 financials tanked in 2020, from the double
10 whammy of reduced use and increased costs.
11 Without the dollars secured by
12 Senator Schumer, our hospitals would have
13 fallen off a financial cliff. But we're not
14 out of the woods. New Yorkers are not using
15 hospital services as they did before.
16 Inpatient use is down 16 percent and ER use
17 is down 34 percent.
18 There's not going to be any more
19 hospital relief from Congress, so we need you
20 to do three things, respectfully.
21 One, provide new funding for
22 hospitals. For 13 years, hospitals have
23 effectively not received an increase in their
24 Medicaid rates. That's why we have dozens of
497
1 hospitals on a closure watch list. State
2 funding from the new COVID relief bill should
3 be used to wipe out cuts and increase
4 Medicaid rates.
5 Two, rein in the abusive practices of
6 for-profit insurance companies, who made huge
7 profits during the pandemic, collecting
8 premiums while most hospital services were
9 shut down. We urge you to revisit one of the
10 reforms that wasn't enacted last year, known
11 as "pay and pursue," which would require
12 insurance companies to actually pay for care
13 delivered to their enrollees.
14 And three, don't impose costly
15 mandates that would put hospitals in an even
16 worse financial position. This includes
17 staffing-ratio legislation that we all know
18 would cost hospitals and nursing homes
19 $4 billion.
20 With regard to nursing homes, let me
21 be clear: We support reasonable and funded
22 reforms. We represent not-for-profit nursing
23 homes, which are the gold standard for
24 long-term care, but that gold standard is
498
1 rapidly disappearing. We're losing 5 percent
2 of our not-for-profit homes per year. This
3 is a matter of great concern, and we urge you
4 to conduct a thorough examination of this
5 phenomenon.
6 For nursing homes, we need you to
7 increase Medicaid rates. And we are also
8 interested in a proposal that would require
9 homes to dedicate 70 percent of their revenue
10 to direct resident care. We want to be sure,
11 though, that the missions of not-for-profit
12 and public nursing homes are protected in the
13 process.
14 Finally, I would draw your attention
15 to an essay published yesterday by the five
16 CEOs of the largest voluntary hospital
17 systems in the state. They point to
18 scientific studies from across the globe that
19 have found that COVID patients are most
20 infectious early in their illness and are
21 very unlikely to still be infectious or
22 contagious when they are discharged from the
23 hospital. It would greatly benefit the
24 discussion about hospital discharges if we
499
1 all become acquainted with the science of the
2 infectiousness of COVID-19.
3 Thank you so much for your support,
4 and thank you for your consideration. And
5 I'm happy to take any questions.
6 CHAIRWOMAN KRUEGER: Thank you.
7 And last on this panel, from the
8 Visiting Nurse Service of New York, Hany --
9 I'm sorry, I'm going to just --
10 DR. ABDELAAL: That's okay, don't
11 worry about it.
12 CHAIRWOMAN KRUEGER: Say it for me
13 once so I can try and get it right.
14 DR. ABDELAAL: Sure. Thank you for
15 the opportunity to testify. I am Dr. Hany
16 Abdelaal, and not from the HANYS association.
17 I'm president of VNSNY CHOICE Health Plans,
18 which includes the largest non-for-profit
19 managed long term care plan as well as a plan
20 that integrates Medicaid and Medicare
21 services for dually eligibles.
22 I'm also the chair of New York's
23 Nonprofit Managed Long Term Care Coalition,
24 and that is the capacity in which I am
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1 speaking to you today.
2 Our plans help over 130,000 frail and
3 elderly New Yorkers stay in their homes
4 instead of having to go into nursing homes.
5 This includes helping our members with their
6 basic needs. And I want everyone to focus on
7 this; this is moving from place to place,
8 bathing, toileting, eating, socializing, and
9 going to the doctor. Without us, these basic
10 functions would not happen.
11 CHOICE Long Term Care Plan serves over
12 24,000 members, and I want you to hear about
13 the demographics: 73 percent are female,
14 75 percent are a race other than white. The
15 average age is 75. The average income is
16 under $900. And most of our members have
17 more than five chronic conditions. And most
18 of them speak one of 20 primary languages
19 other than English. So this is the most
20 vulnerable residents in our community.
21 During the public health emergency,
22 CHOICE, like other MLTC plans, was there for
23 our members. We made sure our most
24 vulnerable members had support despite the
501
1 aide shortage. We made sure that members who
2 were food-insecure had enough to eat. We
3 provided counseling and supported isolated
4 members, and we sent over a million masks to
5 our members during the PPE shortage.
6 So today I'm going to focus our
7 comments on the quality incentive funding
8 that the Executive Budget eliminates. This
9 has been an incredibly valuable tool to align
10 MLTCs and our providers to improve quality of
11 care for the managed long-term-care
12 population. These funds really fund
13 incentive payments, create predictive models,
14 provide realtime patient level performance
15 data to our providers, and they educate and
16 train care managers.
17 And the result of that is it works.
18 Over the last four years the Quality
19 Incentive Program has helped us improve
20 outcomes for our members on virtually every
21 measure -- that's reducing ER visits,
22 hospitalizations, serious falls, and
23 including vaccination.
24 So the Executive Budget eliminates
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1 this quality incentive pool, and this is
2 essentially a quality disincentive. Not only
3 does this fly in the face of over two decades
4 of health policy, it seriously undermines the
5 quality infrastructure that MLTC plans have
6 built and hurts the home care agencies that
7 are using value-based payments to enhance
8 their operations while paying home health
9 aides who put themselves out there every day
10 during this crisis to serve our most
11 vulnerable members.
12 Since well before the pandemic,
13 quality plans and providers were partners
14 with New York State to address these health
15 disparities and ensure the population remains
16 home. We urge the Legislature to restore the
17 quality funding pool and make the pool
18 permanent in statute to support
19 long-term-care services for tens of thousands
20 of disabled and frail New Yorkers.
21 Thank you for your time, and thank you
22 for supporting us.
23 CHAIRWOMAN KRUEGER: Thank you all
24 very much.
503
1 I know that Gustavo Rivera had a
2 question or two.
3 SENATOR RIVERA: I do, and it will be
4 brief.
5 Hello, everyone. Okay, so I have a
6 few -- obviously, hopefully you folks were
7 tuned in during the marathon session that we
8 just had, and so I wanted to ask a couple of
9 questions. Certainly you all expressed in
10 different ways the concerns that you have
11 about the Medicaid cuts. So I wanted to
12 ask -- and I've asked some of you when you've
13 come and met with me, and some other
14 organizations as well, but I want to do so
15 publicly as well, related to the raising of
16 more revenue in the State of New York and how
17 essential it is, particularly as it relates
18 to making sure that when it comes to
19 education, to healthcare and to other basic
20 services, that we do not make those cuts,
21 that we actually get more revenue.
22 Does anyone want to take this
23 opportunity on behalf of their organization
24 to actually say how essential more revenue by
504
1 taxing the wealthy would be? This is your
2 opportunity.
3 MS. REGAN: Senator Rivera, if I may.
4 SENATOR RIVERA: Please.
5 MS. REGAN: There are 25 PA programs
6 in New York State, including in urban, rural
7 and suburban areas, many hosted by SUNY and
8 CUNY institutions. A very young, qualified
9 workforce. Many of your constituents are
10 struggling with workforce solutions --
11 SENATOR RIVERA: Yes, ma'am.
12 MS. REGAN: -- the problem across the
13 state. And the ability to re-channel some of
14 those funds into those educational
15 opportunities to solve workforce issues is
16 significant.
17 SENATOR RIVERA: So you would say that
18 having more revenue to be able to provide, in
19 this particular sense, in the programs you're
20 talking about, to be able to train more folks
21 that could be new to the workforce, the
22 healthcare workforce, you would be supportive
23 of that.
24 MS. REGAN: Yes. There are over
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1 18,000 licensed PAs currently in New York
2 State. State Ed is handling about 1500
3 licenses a year. And that represents about a
4 30 percent increase in the past five years.
5 SENATOR RIVERA: So more revenue would
6 help that happen.
7 MS. REGAN: That's right. There's a
8 huge demand for people to go into the PA
9 profession.
10 SENATOR RIVERA: Gotcha.
11 I'm guessing the other folks are not
12 going to take the bait.
13 MS. GRAUSE: Senator?
14 SENATOR RIVERA: Yes, ma'am.
15 MS. GRAUSE: We don't have a position
16 on how you raise revenue, but certainly more
17 revenue for healthcare is something that we
18 would support. But we don't have a position
19 on how you raise that. That's --
20 SENATOR RIVERA: I would ask you, as I
21 have privately, to please go back to your
22 membership and develop a position,
23 particularly during the budget negotiations.
24 Greater New York, same thing. Get your
506
1 members to get on board to please, let's tax
2 the wealthy, because the folks who you serve,
3 the Medicaid patients that you serve all
4 across the state are the ones that are
5 suffering because of these cuts. And we need
6 to actually assuage some of those cuts.
7 Also, I just wanted to get people's
8 opinion on the global cap. There is a bill
9 that I have to actually get rid of it. I
10 have made the argument many times that it is
11 an -- it was an invention, there's no
12 question about that. And whether it's a
13 useful invention -- the administration
14 continues to insist that it is, I continue to
15 insist that it is not.
16 Does anybody want to take a public
17 position on the global cap during this
18 moment?
19 MR. RICH: Yes, Senator, I will.
20 We have a lot of concerns about the
21 fact that the global cap has really not
22 changed since it went into effect in 2011.
23 Last year, as part of the MRT 2 process, a
24 lot of the MRT members talked about it.
507
1 The administration also talked about
2 at least making adjustments. Because as
3 Senator Krueger pointed out before, when you
4 have so much enrollment growth, that crowds
5 out everything else. It crowds out the
6 ability to do important investments
7 elsewhere. It's why providers have not had
8 an inflation increase in 13 years -- well, in
9 nine years, but they haven't had since longer
10 than that.
11 So we would very much support, at the
12 very least, reforming it. We haven't taken a
13 position on actually getting rid of it
14 altogether.
15 SENATOR RIVERA: So this is another
16 one where I would ask you to go back to your
17 memberships and consider that amongst your
18 board.
19 Anybody else want to take a position
20 on this?
21 MS. GRAUSE: We will. We'll consider
22 it, Senator. There definitely are challenges
23 with it. But it's complicated, as you know.
24 SENATOR RIVERA: Oh, certainly it is
508
1 complicated. But certainly I believe it's
2 necessary to at the very least reform it, and
3 at the most get rid of it, which is why I
4 have a bill.
5 Anybody else? We've just got
6 50 seconds. If not, it's okay.
7 Doctor, Dr. Clare, thank you for
8 bringing up all the concerns that you have
9 about maternal mortality. It is
10 incredibly -- I'll give you the last
11 40 seconds to just tell us a little bit more
12 about how important it is to make sure we get
13 it right in this budget.
14 DR. CLARE: Yeah, I think in
15 particular funding the Safe Motherhood
16 Initiative would really be key, because we
17 want to implement some of those clinical
18 bundle strategies that we've developed, and
19 the recommendations that have come from the
20 Maternal Mortality Review Board.
21 So I think that's really one of the
22 most important things I can really advocate
23 for. That would include $250,000 to really
24 fund this initiative. We know the good work
509
1 it has done. New York State was ranked 46th
2 in the country, now we're ranked 23rd. We
3 have more work to do.
4 Definitely we know that hospitals have
5 reported that SMI has really directed their
6 impact, their ability to improve patient
7 care. So thanks for your time.
8 SENATOR RIVERA: My time is done.
9 That $250,000, we would be able to have it if
10 we taxed the wealthy.
11 Thank you, Madam Chair. Back to you.
12 CHAIRWOMAN KRUEGER: Thank you,
13 Senator Gustavo Rivera.
14 Helene, Assembly?
15 CHAIRWOMAN WEINSTEIN: Yes, we have a
16 number of members. We'll start with
17 Assemblyman Ra.
18 ASSEMBLYMAN RA: Thank you, Chair.
19 Thank you all for your testimony --
20 CHAIRWOMAN WEINSTEIN: It's just three
21 minutes -- excuse me, it's just three minutes
22 for the panel. Yeah.
23 ASSEMBLYMAN RA: Thank you all.
24 And a special thank you to all of your
510
1 members, both institutionally and personally,
2 for their work over the last almost year now.
3 It's certainly been a challenging time for
4 everybody in the healthcare field and, you
5 know, really answering the call in
6 unprecedented circumstances.
7 I just wanted to -- and I think this
8 would be particularly for HANYS and Greater
9 New York Hospitals to talk a little bit more
10 about some of the nursing home reforms? And
11 in particular it was mentioned regarding the
12 revenue restrictions that are proposed.
13 We've seen these types of things in
14 the past, you know, with not-for-profits and
15 things like that, and one of the things we've
16 seen is that perhaps costs that are
17 considered to be one thing or another by a
18 particular sector versus what they're
19 considered by the state may not always match
20 up, and it causes some issues.
21 So -- and I know you mentioned, you
22 know, it not -- it being something that could
23 particularly clash with making sure that
24 not-for-profit and public entities can comply
511
1 with their missions. So if you could
2 elaborate with regard to that a little bit
3 about things we need to keep in mind when
4 crafting that proposal.
5 MR. RICH: Sure, absolutely. Thank
6 you, Assemblyman.
7 We represent only not-for-profit and
8 public nursing homes. And for the most part,
9 they do spend more on direct resident care
10 and staffing than their for-profit
11 counterparts do. And so we prefer this kind
12 of proposal much more than staffing ratios,
13 for instance, mandatory staffing ratios.
14 What we would like to make sure,
15 though, is we've seen there are some nursing
16 homes that do not -- who have very different
17 cost structures, like specialty nursing
18 homes, pediatric nursing homes, those who
19 serve HIV and AIDS, continuing care
20 retirement communities and others who may
21 need to be exempted altogether from it.
22 We'd want to make sure that when
23 you're looking at what cost centers you're
24 including from a cost report, they really are
512
1 what we would view as things that enhance
2 resident care and patient care. And that's
3 sort of where some of the details come in.
4 But for the most part, for the
5 not-for-profit and public community, it's a
6 better proposal than the ratio bill, for
7 instance.
8 MS. GRAUSE: Yeah, I think David's got
9 that right. The devil is in the details.
10 And for not-for-profit nursing homes, the
11 vast majority of their budget goes to direct
12 patient care in the form of salaries for
13 caregivers.
14 So I think just making sure that
15 there's clarity around the expenses and what
16 would be counted in is critically important.
17 But we think, again, making sure that the
18 dollars go to patient care is really the most
19 important part of that.
20 ASSEMBLYMAN RA: Thank you.
21 CHAIRWOMAN KRUEGER: Thank you.
22 I think -- well, for me for the
23 Senate, just following up on those questions,
24 do you think we can put the genie back in the
513
1 bottle and reverse ourselves and no longer
2 allow for-profit nursing homes in New York
3 State? Do you think if we get the formulas
4 right that not-for-profit providers will come
5 back into this universe?
6 MR. RICH: You know, I think -- oh, go
7 ahead, I'm sorry.
8 MS. GRAUSE: I guess I would have to
9 say if you want to -- I think it's a money
10 question. I think if you want to have
11 services in the state, you have to cover the
12 cost of those services.
13 So I think it boils down to making
14 sure that you can have not-for-profit nursing
15 homes that can actually have a margin,
16 because without the margin, no mission.
17 MR. RICH: Yeah. And I think as we
18 mentioned before, given the fact that nursing
19 homes are often 90 percent Medicaid, and the
20 Medicaid program has really underfunded them,
21 I think that's why we're seeing the
22 not-for-profits who do have higher cost
23 structures because they do spend more on
24 residents' care and on, you know, other
514
1 things that cost more.
2 We see them bought up by the
3 for-profits, and that's because the
4 for-profits, once they buy them up, really
5 cut back on a lot of the things that the
6 not-for-profits were spending on in order to
7 fulfill their mission.
8 So it's really a function, as Bea
9 said, of the Medicaid rates. And they've got
10 to be improved if we're going to turn this
11 around.
12 CHAIRWOMAN KRUEGER: And I think
13 that's a lesson for us also when we're
14 walking into the new world of telemedicine.
15 I think that we've all seen during
16 COVID how valuable expanded telemedicine
17 options can be, particularly in areas that
18 are geographically distant from large numbers
19 of doctors and medical centers.
20 But there also seems to be a push for
21 for-profit telemedicine, and my gut is to be
22 very hesitant of that. Has anybody looked at
23 the differences between for-profit
24 telemedicine and remaining in our
515
1 not-for-profit model here in New York?
2 MR. RICH: I have not, but we will
3 certainly look at that, absolutely.
4 DR. CLARE: I would just like to add
5 that, you know, really payment parity is
6 really key for telemedicine services for all
7 payers. And also coverage for audio-only
8 options.
9 You know, I take care of patients that
10 are in a safety-net hospital system and so
11 therefore really allowing for those options.
12 It really was invaluable for me as an OB-GYN
13 in the height of the pandemic almost a year
14 ago to really have access to my patients. So
15 really payment parity is super-key, and
16 coverage for audio-only would really help
17 these services.
18 MR. RICH: We absolutely agree with
19 the payment parity comment. Thank you,
20 Doctor.
21 CHAIRWOMAN KRUEGER: Thank you.
22 Although we're not going to tell women, We're
23 not coming to help you deliver your baby
24 anymore, you just -- we'll walk you through
516
1 on the computer, right?
2 DR. CLARE: Well, that's for the
3 outpatient services. We know for inpatient
4 services they always have to come in. But
5 for outpatient services, prenatal care, we
6 know that's super important to ensure those
7 good outcomes and reduce maternal mortality,
8 so, you know --
9 CHAIRWOMAN KRUEGER: That's just my
10 bad sense of humor.
11 (Laughter, overtalk.)
12 DR. CLARE: I got it, I got it. No
13 worries.
14 CHAIRWOMAN KRUEGER: I'd better stop
15 before I do more damage.
16 Assembly.
17 CHAIRWOMAN WEINSTEIN: Assemblyman
18 Cahill.
19 ASSEMBLYMAN CAHILL: Thank you so
20 much.
21 And if I had my pots and pans here,
22 I'd be banging them for the people that work
23 for you to thank you for everything that
24 you've done over the past year.
517
1 I just sent a message to one of the
2 people in the Department of Health that while
3 Dr. Zucker was testifying, the one and only
4 COVID patient at the Health Alliance of the
5 Hudson Valley was released, and it was my
6 brother-in-law. So this is a good sign, not
7 only that my brother-in-law got out, but that
8 there was only one patient there today.
9 That's terrific news.
10 Now, Ms. Grause and I had had an
11 opportunity on Monday to talk at length about
12 a variety of different issues. One of the
13 things I said to her, and I think our group
14 kind of misinterpreted my reporting for
15 advocacy -- although I will say I am a
16 supporter of the idea -- I do believe that
17 this Legislature is of a mind to consider
18 seriously staffing ratio bills.
19 And I would just urge you, as people
20 who represent a very important industry, to
21 start to think in terms of how you want to
22 contribute to that dialogue instead of
23 thinking about how you can resist it.
24 Because if it happens, it happens. I'd
518
1 rather have you be part of the solution than
2 have it be something that was imposed upon
3 you.
4 MR. RICH: We would agree with you.
5 ASSEMBLYMAN CAHILL: Greater New York
6 has mentioned the finances of COVID for the
7 hospital systems and the nursing home systems
8 in our state. You had lower admissions at
9 the emergency room, you had fewer surgical
10 procedures -- two of the last remaining
11 profit centers for our hospitals. And profit
12 is the wrong word. Two of the last areas of
13 hospital services that make more money than
14 they cost.
15 MR. RICH: Mm-hmm.
16 ASSEMBLYMAN CAHILL: And then you also
17 mentioned that there were increased costs
18 associated with COVID as a result of all
19 this.
20 Do you feel that you can recover from
21 this with one-shot extraordinary help? And
22 can we get back on track to where we were --
23 let's change that. Can we get back on track
24 to finally reaching a point of a path toward
519
1 permanent solvency for our healthcare
2 institutions?
3 MS. GRAUSE: It's going to take a
4 while. It's certainly going to take a while.
5 There are a lot of moving parts.
6 Frankly, many hospitals have not seen
7 the cases come back in terms of their
8 outpatient surgery. I think the prices are
9 still high for PPE. The requirements to
10 warehouse PPE still exist. So it's going to
11 take a while.
12 And I think telemedicine will help in
13 some areas, but I think it will still be a
14 challenge revenue-wise for other providers.
15 MR. RICH: Yeah, and it's a very big
16 concern from a public health standpoint too.
17 I mean, having only 64 percent of the
18 people in the ER that you used to have --
19 we've always wanted to have fewer people in
20 the ER, but if it's just because they're not
21 coming and getting healthcare, then that's
22 really a problem.
23 But I think especially for our
24 safety-net institutions, those Medicaid
520
1 rates -- some increase in Medicaid rates is
2 so important. We keep having like bailouts
3 and Band-Aids for them year after year after
4 year. We really just need to take care of
5 the revenue structure in one fell swoop.
6 ASSEMBLYMAN CAHILL: So my clock was
7 set for three minutes instead of five, but
8 let me just be very brief and --
9 CHAIRWOMAN WEINSTEIN: It's three
10 minutes.
11 CHAIRWOMAN KRUEGER: It's supposed to
12 be.
13 ASSEMBLYMAN CAHILL: Okay. So very,
14 very quickly, thank you for your comments on
15 medical malpractice, excess medical
16 malpractice. Very important.
17 I would urge you all to start thinking
18 about trying to formulate a group to
19 reconsider how we deliver healthcare in
20 New York. We have to get off the triage and
21 get on a real plan.
22 So thank you very much. We'll be
23 looking at everything, and hopefully we'll be
24 doing the right thing by you through this
521
1 budget.
2 MR. RICH: Thank you.
3 MS. GRAUSE: Always happy to do that.
4 DR. ABDELAAL: Thank you.
5 CHAIRWOMAN KRUEGER: Helene, you have
6 another hand.
7 CHAIRWOMAN WEINSTEIN: Another two.
8 Assemblyman Byrne.
9 ASSEMBLYMAN BYRNE: Thank you. And I
10 want to thank you again for all your
11 testimony and just sticking through the
12 entire hearing. It's much appreciated.
13 A couple of questions and comments.
14 One, Maureen, you're right, we should be
15 talking about physician assistants more. And
16 my wife would agree.
17 You mentioned in your testimony about
18 many New York State websites incorrectly list
19 PAs as registered rather than listed. I
20 would be curious as to what specific
21 websites. I don't expect you to get that to
22 me now, but perhaps that's something that our
23 committee and we can do, whether it's writing
24 directly to the state agency or through
522
1 legislation. But I would be interested in
2 that.
3 I also wanted to just say thank you
4 again for your comments, all of you for the
5 most part, on the opposition to the
6 elimination of the Indigent Care Pool for
7 public hospitals. I tried to mention it
8 earlier, but Westchester Medical Center is
9 just outside my district, but it's in one of
10 the counties I represent, and I believe that
11 they're even more disproportionately more
12 impacted from that elimination because the
13 county does not contribute like some of the
14 other public hospitals.
15 Also heard some of your concerns about
16 the shift from the 340B retail pharmacy
17 benefit, from Medicaid managed care to fee
18 for service. I appreciate that.
19 And I wanted to just -- you know,
20 after my comments if there's anything you
21 want to elaborate on, I would appreciate that
22 and give you that opportunity.
23 The same thing with, again, just like
24 the Insurance chair, about the Excess Medical
523
1 Malpractice Insurance Program. I appreciate
2 your comments.
3 As far as the nursing homes, the
4 30-day amendments, that was more of a
5 specific question I had. Some of these
6 penalties are substantial increases from what
7 is current. And I know there's been
8 proposals in the past from some members in
9 the Health Committee -- I think the chair.
10 And I tend to think that these types of
11 policies and discussions should be separate
12 from the budget, not in the budget.
13 They seem to be pretty significant in
14 a jump. And I'd like to ask if you had any
15 comments or questions on that. And if
16 there's anything else you wanted to add, by
17 all means please do.
18 MR. RICH: Assemblyman, on the
19 financial penalties, they're very big
20 increases. And they're not just for nursing
21 homes, those are for all providers, so
22 hospitals and other providers as well.
23 So we are very concerned about that.
24 I mean, you know, we already feel like the
524
1 fines are sufficient. And we don't want to
2 see them increased.
3 MS. GRAUSE: Yeah, I don't think fines
4 are helpful in terms of operation or, most
5 importantly, in terms of an improvement.
6 I think you raised a lot of issues,
7 Assemblyman, and we are always happy to come
8 in and talk to you in more detail. There's a
9 lot of detail there. There's also a lot of
10 relationship between many of the Medicaid
11 issues and some of the proposals in the
12 budget. We're happy to talk to you about
13 that.
14 ASSEMBLYMAN BYRNE: Thank you. And I
15 guess my point on the fines is if we're going
16 to have those discussions, I don't think it
17 should be in the budget. I think it's too
18 easy for things to get packed in. And if we
19 want to debate that, we should do it
20 separately and include all the stakeholders,
21 including you folks.
22 So thank you.
23 MS. GRAUSE: We would agree with that.
24 CHAIRWOMAN WEINSTEIN: Assemblyman
525
1 Jensen.
2 ASSEMBLYMAN JENSEN: Thank you very
3 much, Madam Chair.
4 Just want to get back into the
5 staffing conversation again. So really for
6 our hospitals and our nursing homes, what do
7 you guys see as really the nursing needs that
8 you're seeing from your members on a daily
9 basis, whether it's RNs, LPNs, CNAs? Where
10 do you see the biggest need?
11 And when you're looking at those
12 staffing needs, do you think that flexible,
13 evidence-based, data-driven models will
14 really be preferable to adapt to what patient
15 resident needs are on a day-to-day basis,
16 rather than something that's mandated across
17 the board for every facility across the
18 state?
19 MS. GRAUSE: Assemblyman, I couldn't
20 agree with you more. I think the pandemic
21 has demonstrated the need for flexibility.
22 And I think if you have seen one
23 staffing model in a hospital, you've seen one
24 staffing model. There are big differences
526
1 between large academic medical centers and
2 how they are able to staff, and a small
3 critical-access hospital.
4 And so I think having that flexibility
5 to make decisions locally -- and also,
6 staffing needs vary according to the
7 acuteness of the patient. I'm a registered
8 nurse myself, and a hospital -- a patient's
9 needs may change minute by minute. In a
10 nursing home, the patient's needs are much
11 more stable. And so there are vast
12 differences.
13 So I think that allowing those -- the
14 decision-making to happen within the facility
15 is really the most appropriate. And the
16 pandemic showed that.
17 ASSEMBLYMAN JENSEN: I apologize for
18 the background noise on my end. I'm at the
19 dinner table with my 2-year-old, so I
20 apologize.
21 MS. GRAUSE: Lucky you.
22 DR. CLARE: We love coworkers. So we
23 love coworkers.
24 (Laughter.)
527
1 ASSEMBLYMAN JENSEN: Does anybody else
2 want -- David, did you have any thoughts
3 on --
4 MR. RICH: Sure, no. Thank you, and
5 thank you for your comments on this issue
6 earlier today.
7 Totally agree with Bea. And I think,
8 you know, as I mentioned on the nursing home
9 side, we would prefer the kind of approach
10 that the 70 percent -- the requirement to
11 spend 70 percent on direct resident care, we
12 much prefer that to inflexible ratios that
13 are in the bill.
14 You know, to Chair Cahill's comment
15 before, we would definitely want to be part
16 of a solution. In the past, unfortunately,
17 the only option out there has been the bill
18 that, you know, DOH and Cornell told us all
19 last August would cost $4 billion for
20 hospitals and nursing homes and require us to
21 hire 70,000 new people. So we clearly can't
22 pass that.
23 But we definitely would want -- we are
24 very willing to have conversations, and I
528
1 believe some are actually happening even as
2 we speak. So we would like to be part of a
3 solution.
4 ASSEMBLYMAN JENSEN: In the 10 seconds
5 I have, just a yes -- so do you really see
6 the need not just for RNs, but the LPNs and
7 CNA positions across the board are really
8 what are needed for our health system right
9 now?
10 MR. RICH: Oh, absolutely. We need
11 all of them.
12 ASSEMBLYMAN JENSEN: Thank you very
13 much.
14 Thank you, Madam Chair.
15 MR. RICH: And PAs.
16 CHAIRWOMAN WEINSTEIN: We go to
17 Assemblyman Palmesano.
18 ASSEMBLYMAN PALMESANO: Thank you.
19 Appreciate you being here and what you
20 do.
21 This is more directed towards HANYS
22 and the Greater New York Hospital
23 Association. Particularly I know the
24 comments were brought up during your initial
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1 comments about the Indigent Care Pool. And I
2 just wondered if you could elaborate a little
3 bit more on that from the perspective -- are
4 you concerned about counties having to have
5 an increased burden with the removal of the
6 state's share of the Indigent Care Pool and
7 the overall impact this could have on county
8 property taxpayers, on your healthcare
9 facilities, and the delivery of healthcare in
10 general? Just anything you could elaborate
11 on that.
12 Because I know that's something that
13 has a lot of concern, especially I always
14 worry about cost shifts to counties and
15 property taxpayers and how that might
16 impact -- any thoughts you might have on that
17 proposal?
18 MS. GRAUSE: Sure. Certainly. I
19 think there are a couple of moving parts.
20 We agree with you on the removal of
21 the state support for the public Indigent
22 Care Pool. And I think we also have a
23 proposal that would smooth out the changes
24 year to year for the providers who receive
530
1 those Indigent Care Pool funds, so that the
2 burden of loss is evened out over time.
3 So we agree with you on that part, but
4 we also have the concern about the providers.
5 MR. RICH: Yeah. And I would totally
6 agree. And, you know, as I believe it was
7 Assemblyman Byrne mentioned before, different
8 counties have been supporting their public
9 hospitals in different ways. In Westchester,
10 the county doesn't really put in the local
11 share. The hospital itself is financing
12 that. Erie County deals with it differently,
13 and Nassau County deals with it differently.
14 The SUNYs, they don't have a taxing ability
15 to put up the state share that would be taken
16 away from them.
17 So we really, really would urge you to
18 reject that cut, both because of the impact
19 on counties -- who, by the way, need relief
20 also and not new costs shifted to them. And
21 it's not clear they'd even be able to pick up
22 the slack even if they were able to -- or
23 that they would be willing to. They've got
24 other priorities as well.
531
1 So we think it's a -- we think it's an
2 ill-advised cut.
3 ASSEMBLYMAN PALMESANO: Thank you very
4 much.
5 CHAIRWOMAN KRUEGER: Anyone else,
6 Assembly?
7 CHAIRWOMAN WEINSTEIN: We're done.
8 But I think you have someone now,
9 Senator Serino.
10 CHAIRWOMAN KRUEGER: Oh, hello, Sue
11 Serino popped up.
12 Senator Sue Serino.
13 (Pause.)
14 CHAIRWOMAN KRUEGER: Turn on your
15 speaker.
16 SENATOR SERINO: Sorry. Darn buttons.
17 Thank you, Madam Chair.
18 And thank you so much for being here.
19 You know, a big part of our
20 conversation today was we were talking about
21 bolstering staffing. So how do we improve
22 the workforce pipeline, whether it's CNAs,
23 RNs, PAs, doctors, what have you? Do you
24 have recommendations for bolstering the
532
1 healthcare workforce so the staffing
2 shortages aren't as common as they are today?
3 MS. GRAUSE: Thank you, Senator.
4 There are a lot of things that are
5 already in place, and I think it certainly
6 takes time. I think the legislation for a
7 Bachelor of Science in Nursing in 10 is one.
8 I think career ladders starting early
9 in schools. It's actually quite a complex
10 area. But, you know, kids -- when I was in
11 high school, you know, you could be a teacher
12 or a nurse. I'm dating myself, but that --
13 you know, those were the choices, and I chose
14 nursing. But kids, young boys and girls have
15 lots and lots of different career choices.
16 And I think starting early and making sure
17 that kids understand the wonderful rewards
18 and career paths for people who choose
19 healthcare is something that we have to do a
20 lot more of.
21 But there's many more ideas. But yes,
22 we would love to talk to you about a lot of
23 our ideas around that.
24 SENATOR SERINO: I would love to do
533
1 that. I love going into the schools, and I
2 think we really have to start in middle
3 school, right? By the time high school rolls
4 around --
5 MS. GRAUSE: It's too late.
6 SENATOR SERINO: -- it's too late.
7 Yeah, so I'd love to continue this
8 conversation. And thanks again for being
9 here today.
10 MS. GRAUSE: Of course.
11 MS. REGAN: I think the challenge as
12 it relates to PAs, as I mentioned, is to
13 ensure that PAs are included in regulations,
14 guidance, statutes, bills. We're often left
15 out, and if people don't see us, they assume
16 that PAs cannot provide the function.
17 A perfect example is when the DOH set
18 out the vaccination guidance, PAs were not
19 mentioned in it. Doctors, nurses were.
20 Clearly, by our license, we can. I spent
21 many a day in Nassau County with the
22 commissioner of health in Nassau County,
23 volunteering time to give out the vaccines.
24 But we had to get clarification from the
534
1 Department of Health because if we were not
2 specifically listed, they assumed that we're
3 not providing the care.
4 It's very, very difficult to get that
5 redirected once that initial guidance has
6 been rolled out. So it's imperative, again,
7 on bill language, any kind of DOH guidance,
8 that PAs are explicitly included. We have
9 licenses to practice just like our physician
10 colleagues, we report to the Board of
11 Medicine, we get disciplined by the OPMC.
12 But we're often -- we're often left out of
13 that language.
14 MS. GRAUSE: That's a good point.
15 SENATOR SERINO: It's helpful. Thank
16 you.
17 CHAIRWOMAN WEINSTEIN: All right.
18 Anyone else here tonight? Nope.
19 We're going to thank the panel for staying
20 with us. Well, you didn't really have to
21 stay with us. We used to make you come to
22 Albany; now you just turn on Hollywood
23 Squares at the right time.
24 But indeed, thank you very much for
535
1 being with us and for sharing your opinion
2 with us.
3 DR. CLARE: Thank you very much.
4 CHAIRWOMAN KRUEGER: Thank you.
5 And our next panel --
6 MS. REGAN: Thank you, Chairwoman
7 Krueger and Chairwoman Weinstein.
8 CHAIRWOMAN KRUEGER: Thank you.
9 Our next panel is 1199SEIU, Molly
10 Silva (sic); the Consumer Directed Personal
11 Assistance Association of New York State,
12 Bryan O'Malley; the Home Care Association of
13 New York State, Alyssa Lovelace; and the
14 New York State Council for Community Behavior
15 and Healthcare, Lauri Cole.
16 And again, you've all submitted
17 testimony. You're not going to try to read
18 it, because you only have three minutes. And
19 then we will ask the panel any questions we
20 wish to ask. And know that we all have your
21 full testimony and people can definitely
22 follow up with you after this hearing this
23 evening.
24 So our first speaker is Molly Silva.
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1 MS. SILVA: Good afternoon. My name
2 is actually Milly Silva.
3 CHAIRWOMAN KRUEGER: Excuse me.
4 MS. SILVA: I serve as an executive
5 vice president of 1199SEIU United Healthcare
6 Workers East. And we are submitting written
7 testimony on behalf of the 300,000 healthcare
8 workers that we represent in the State of
9 New York.
10 And so I want to focus my remarks
11 specifically on the need for nursing home
12 reform. At 1199SEIU we represent over
13 65,000 nursing home workers in 343 nursing
14 homes across the state, providing the
15 hands-on care that residents need to thrive.
16 There are a few points that I want to
17 be able to bring to the group today. Number
18 one is that even before this pandemic, our
19 members were increasingly concerned about the
20 conditions that they were experiencing at the
21 nursing homes, where we saw owners who have
22 chosen to increase their profits rather than
23 invest in the staff needed to provide the
24 hours of residents' care that our seniors
537
1 need at the facilities.
2 During the pandemic, the crisis became
3 exponentially worse. It looked like the
4 failure to provide personal protective
5 equipment, it looked like workers who were
6 being pressured to return to work despite
7 being ill and also, at times, having the
8 challenge of being in a situation where they
9 weren't receiving the sick-leave time that
10 they needed in order to be able to recover
11 during their quarantine leave. And it also
12 included a failure to guarantee that nursing
13 homes were using appropriate infection
14 control measures.
15 Our members' experiences and a
16 comparison with other states make it
17 abundantly clear that serious reform of the
18 industry is needed. A few key points.
19 New York ranks worse than 38 others in
20 the number of hours per day of hands-on care
21 that residents receive -- and, not
22 coincidentally, is one of only 12 states
23 without any minimum state standards for hours
24 of care. Directly related to that, we have
538
1 one of the worst rates of pressure ulcers in
2 high-risk, long-stay residents.
3 Even as care suffers, too many nursing
4 home owners are extracting profit from these
5 homes. The average spend on resident care is
6 just 65 percent of overall revenue, with
7 35 percent being spent on staffing. And
8 because these are averages, let's be mindful
9 that there are large groups of nursing homes
10 who are spending even less.
11 Raising the floor and requiring that
12 homes spend a minimum of 40 percent on
13 staffing and a total of 70 percent on
14 resident care -- again, as a minimum -- will
15 shift approximately $500 million that can go
16 towards resident care. And these are dollars
17 that are already in the system.
18 And this kind of a minimum standard
19 will also target the bad actors. Over
20 70 percent of New York's nonprofit nursing
21 homes already meet these standards, but only
22 20 percent of for-profits do. Taxpayer
23 dollars should be spent where they matter, on
24 resident care.
539
1 I'm closing with we want to thank the
2 Senate for passing S4336A, which would
3 achieve that goal. Urgent reform must be
4 addressed in the budget, especially as it
5 concerns how Medicaid dollars are spent. We
6 want to thank Governor Cuomo for including it
7 in his 30-day budget amendments, and we
8 believe that the additional proposals made by
9 Governor Cuomo regarding limits on profits,
10 the issue of related party transactions,
11 increased transparency and reporting, and the
12 appointment of temporary receivers are the
13 kinds of reforms that we need.
14 So we urge you as legislators to seize
15 this moment and change the nursing home
16 system so that it is one where we are putting
17 patient care first over profits.
18 Thank you for the opportunity to
19 address you.
20 CHAIRWOMAN WEINSTEIN: Thank you.
21 Now Bryan O'Malley.
22 MR. O'MALLEY: Hi. Good evening. I'm
23 Bryan O'Malley, executive director of the
24 Consumer Directed Personal Assistance
540
1 Association of New York State, or CDPAANYS.
2 And on behalf of the 139,000 people who use
3 CDPA and the fiscal intermediaries that serve
4 them, thank you for the opportunity to
5 testify and thank you for everyone's strong
6 support of CDPA, both today and over the last
7 several years.
8 The mounting death toll from nursing
9 homes is receiving a lot of attention, but
10 the shocking statistics are obscuring a more
11 basic fact. This pandemic didn't create
12 these conditions, it merely placed a
13 spotlight on them and made them worse.
14 We have to take steps to protect those
15 in nursing homes, but we can't stop there.
16 We have to shift the focus of care to the
17 community, because it doesn't take an expert
18 to know that the best way to avoid dying in a
19 nursing home is not to enter one to begin
20 with.
21 To do this, we have to address
22 New York's worst-in-the-nation home care
23 workforce crisis. We must pass the Fair Pay
24 for Home Care, which will require that the
541
1 state and plans fully fund a home care wage
2 equal to at least $22.50 an hour. According
3 to the PHI home care workers, who are
4 primarily women of color, earn an average
5 annual salary of just $22,000 a year. That's
6 $8,000 less than the full-time fast food
7 employees upstate. The wage is so bad that
8 over half of workers must rely on Medicaid
9 and other benefits to survive.
10 And according to a new report from the
11 CUNY School of Labor and Urban Studies,
12 Fair Pay for Home Care would be the most
13 successful economic development initiative in
14 decades. They estimate that investing in
15 Fair Pay for Home Care would generate
16 increased revenue and savings of
17 $7.6 billion. They further estimate that it
18 would create 20,000 new home care jobs a year
19 for over a decade. And because these folks
20 will spend their money on food, housing and
21 other necessities, there will be significant
22 economic spillover supporting local
23 businesses ravaged by the economic collapse
24 and generating yet another 17,500 jobs per
542
1 year.
2 There's no better way to "build back
3 better" from COVID. Passing Fair Pay for
4 Home Care, we can simultaneously address the
5 failures of the long-term-care system,
6 institutional bias, a home care workforce
7 shortage, longstanding racial and
8 gender-based inequity, and struggling local
9 businesses and economies.
10 We also have to address the reason for
11 the cuts over the past decade and repeal the
12 Medicaid Global Cap that rations healthcare
13 and disproportionately impacts seniors and
14 the disabled. The global cap is why the
15 state made the choice to cut $2.2 billion
16 from our Medicaid program at the same time
17 that we were starting a once-in-a-century
18 pandemic. No policy over the past decade has
19 been more responsible for furthering the
20 state's institutional bias.
21 And we don't just have to repeal the
22 cap, we have to repeal the home care and CDPA
23 eligibility cuts that resulted from it,
24 particularly the discriminatory activity of
543
1 daily living requirements and the overly
2 bureaucratic enablist {?} assessment
3 provisions passed last year, both of which
4 disqualify those in need from receiving home
5 care or CDPA while still allowing them to go
6 to a nursing home and jeopardize hundreds of
7 millions in federal funding.
8 In closing, and finally, we urge you
9 to pass the Invest in Our New York project
10 package. Budget cuts, regardless of where
11 they are located in the budget, impact the
12 same people. We cannot ask disabled folks or
13 anyone to choose between their Medicaid,
14 education, housing or food.
15 Thank you for granting me the
16 opportunity to testify.
17 CHAIRWOMAN WEINSTEIN: Thank you.
18 I appreciate people staying, but I
19 just really encourage people to look at the
20 clock. We're approaching the ninth hour of
21 the hearing, and we have more than --
22 probably 35 witnesses left. So -- don't get
23 so excited, Gustavo.
24 SENATOR RIVERA: I gotta keep -- I
544
1 gotta stay, I gotta stay here, I gotta stay
2 here.
3 (Laughter.)
4 CHAIRWOMAN WEINSTEIN: So Home Care
5 Association of New York State -- oh,
6 Senator Krueger is back. Home Care
7 Association of New York State.
8 CHAIRWOMAN KRUEGER: Great. Thank
9 you.
10 MS. LOVELACE: Hi. I'm Alyssa
11 Lovelace. I'm the director for public policy
12 and advocacy with the Home Care Association.
13 Thank you so much for having me here today.
14 HCA, we represent home care agencies,
15 hospice providers, managed long-term-care
16 plans, waiver programs, allied health, HMOs
17 and other provider types located across the
18 state.
19 First and foremost, we ask the
20 Legislature to reject the Executive's budget
21 proposals that would reduce any Medicaid for
22 home- and community-based care.
23 Specifically, the 1 percent across-the-board
24 cut to Medicaid providers. That includes
545
1 home care and hospice funding, which is
2 actually a 2 percent cut for us given the
3 cuts we're already seeing. Cuts to managed
4 long-term care plan premiums and the
5 elimination of the $150 million quality
6 funding, which was previously mentioned by
7 the VNSNY.
8 The Governor also called for a
9 50 percent reduction for home care and
10 hospice workforce recruitment and retention
11 wage benefit funds. These funds actually
12 help employ our workforce. Earlier today it
13 was stated that perhaps we can do without
14 these funds by our Medicaid director. They
15 seem like pennies, but to these providers
16 they're not. They help with payment.
17 We need to make it less hard for our
18 agencies to retain their workforce,
19 especially now, considering home health aide
20 employment increased by 79 percent statewide
21 between 2014 and 2020.
22 What would also help the state
23 workforce is the expansion of telehealth. We
24 request that the Executive's telehealth
546
1 provision is amended to include healthcare
2 flexibility within telehealth, and include
3 guardrails for coordination, quality and
4 prevention of loopholes.
5 We'd like to see the Legislature
6 provide financial stability for home care,
7 hospice and plans, and make some investments
8 in the industry by ensuring the Department of
9 Health carries out its obligation to update
10 and raise the episodic, fee for service, and
11 minimum wage Medicaid rates for home care,
12 directing a fair share of federal and state
13 COVID-19 relief to home care and hospice
14 providers, and making the cost of PPE and
15 related safety protocols ongoing components
16 of the state's healthcare reimbursement
17 system. In 2020 home care agencies alone saw
18 a 136 percent increase in PPE expenses.
19 And finally, we ask that the
20 Legislature consider HCA's "New York Home
21 Care First" model. This would provide
22 COVID-19 relief measures for community-based
23 care and stable Medicaid financing, and a
24 supportive regulatory structure that provides
547
1 critical flexibilities for operations, care
2 delivery, and efficiency while protecting
3 quality and the integrity of care and support
4 for workforce retention, preparedness and
5 sufficient capacity to meet patient care and
6 demand.
7 We need to ensure that our home care
8 agencies and hospice providers are taken care
9 of at the end of the day. They are really
10 doing God's work in the field. They are
11 helping the most vulnerable populations at
12 home, and there are hundreds of examples
13 within how we collaborate along with
14 different hospital systems and community
15 partners. And I'm happy to talk offline and
16 share more of these stories and solutions
17 with you.
18 CHAIRWOMAN KRUEGER: Thank you.
19 Next, Lauri Cole.
20 MS. COLE: Good afternoon -- actually,
21 good evening. I'm Lauri Cole. I'm the
22 executive director of the New York State
23 Council for Community Behavioral Healthcare.
24 We are a statewide membership association
548
1 representing mental health and substance
2 abuse providers across New York.
3 I'm here today to ask your assistance.
4 The behavioral health system is really
5 hanging by a thread. We've been ravaged by
6 three concurrent public health disasters with
7 the opioid epidemic, increasing rates of
8 suicide, and COVID-19. New York families and
9 communities are devastated. The system of
10 care designed to provide prevention,
11 treatment and rehabilitative options is
12 sorely underfunded and in crisis. The demand
13 for our services far outpaces our ability to
14 respond. And every data point indicates it's
15 going to get worse.
16 There should be no cuts to mental
17 health and substance use disorder addiction
18 systems of care. Instead, we're proposing
19 smart investments. This year we have
20 requests that would return resources that
21 belong to our system of care to include a
22 set-aside of funds from the state's
23 healthcare transformation fund account,
24 consistent with Assemblyman Gottfried and
549
1 Senator Rivera's bills A264 and S2531; a
2 request that all state aid funding withholds
3 be restored; and that the state honor its
4 commitments to reinvest savings from our
5 system back into it.
6 Behavioral health services were
7 transitioned to managed care in 2015. The
8 law and policy of the state is clear:
9 Managed care savings from our system go back
10 to the system of care.
11 Before we transitioned, stakeholders
12 were very concerned about money being
13 siphoned out of the system by plans for their
14 profits. We spent countless hours working in
15 collaboration with the state on language to
16 ensure state guidance and documents to
17 include -- to ensure transparency in the
18 process and for managed care savings to
19 accrue to the system of care from which it
20 came.
21 At that time there was ample evidence
22 in literature and historical context for us
23 to have concerns about the siphoning off of
24 funds once we transitioned to Medicaid
550
1 managed care. We saw it coming, we put in
2 safeguards, but the state has again left the
3 chicken coop open for the foxes.
4 To date we haven't received a single
5 document of substance in response to four
6 FOIL requests we filed in the early fall,
7 through counsel seeking information that
8 should be readily available if the state was
9 holding the health plans accountable for
10 meeting behavioral health expenditure targets
11 and medical loss ratios established as part
12 of the transition. Our written testimony
13 goes into great detail about this.
14 However, the questions we have remain.
15 What is the state hiding? Could it be that
16 the state allowed the plans to retain funds
17 that were supposed to be returned back to the
18 system of care? We are calling for a full
19 accounting of the managed care savings from
20 our system of care, as well as the shortfalls
21 in behavioral health expenditures by the
22 Medicaid health plans. And we are asking for
23 your help to ensure that these funds are
24 properly invested back for essential
551
1 behavioral health services needed now more
2 than ever.
3 Thank you.
4 CHAIRWOMAN KRUEGER: Thank you.
5 Anyone, questions? Then -- oh,
6 Assembly, I see a hand up on your side.
7 CHAIRWOMAN WEINSTEIN: Yes, we now
8 have Kevin Byrne for three minutes.
9 ASSEMBLYMAN BYRNE: Yup, sorry about
10 that. Just trying to jump to it.
11 Thanks again for your testimony. The
12 questions are more directed towards Alyssa
13 from the Home Care Association. I'm not sure
14 if you were following along with our
15 questions earlier. I asked something of our
16 inspector general, OMIG, regarding audits
17 during the pandemic and how it's affected
18 some of the on-site assessments.
19 And I was curious if you had -- if you
20 were following along, if you had any comments
21 to share, if there's any specific knowledge
22 that you may have or insights from some of
23 your members.
24 MS. LOVELACE: Yes, certainly. Thank
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1 you, Assemblymember.
2 When I heard that response it seemed
3 very vague to me, because as an association
4 representative we hear from the providers on
5 a daily basis. And I can tell you right now
6 I heard from one just yesterday or the day
7 before, and they said that they're on their
8 tenth survey of the year. And we're in a
9 pandemic. So, I mean, that seems a little
10 ridiculous to me.
11 Do I understand why we're having
12 surveys? Of course I do. Can they be
13 perhaps a little bit more streamlined given
14 our circumstances? Absolutely. We need to
15 make it easier for these providers, again,
16 not harder.
17 ASSEMBLYMAN BYRNE: I understand that.
18 I was a little surprised because it made it
19 sound like everyone was remote and they
20 weren't doing in-person surveys, which was
21 not my understanding. So I thank you for
22 your additional clarification, and we'll have
23 to follow up with the inspector general.
24 Thank you.
553
1 MS. LOVELACE: Certainly. Thank you
2 so much.
3 CHAIRWOMAN KRUEGER: Thank you. Thank
4 you, everyone, for being with us this
5 afternoon/evening.
6 We will move on to our next panel. We
7 have Beth Finkel, state director of AARP
8 New York; Talya Schwartz, president,
9 Metro Plus Health Plan; James Clyne,
10 LeadingAge New York; Heidi Siegfried,
11 director of health policy for CIDNY,
12 Center for Independence of the Disabled,
13 New York; and Douglas Hovey, CEO of
14 Independent Living, Inc.
15 We'll start with Beth Finkel.
16 MS. FINKEL: Hi. Thank you so much.
17 Good evening, everyone. Thank you so much to
18 Senator Krueger and Assemblymember Weinstein
19 and members of the committee.
20 I just want to start off centering us
21 on the numbers, which I think you're well
22 aware of. But in New York State, according
23 to the CDC, 95 percent of the COVID-19 deaths
24 were people 50 and older -- 95 percent of the
554
1 deaths, 50 and older. Which is why what
2 we're talking about today is so important.
3 This year's budget really has to
4 prioritize struggling older New Yorkers.
5 There's been some really fatal, literally
6 fatal flaws that have been highlighted in our
7 long-term-care system, putting vulnerable
8 nursing home residents' health, safety and
9 staff really in a terrible position. The
10 loss of life of over 15,000 New Yorkers from
11 nursing homes has just been terrible. And it
12 just shows you what has come before but, if
13 we don't do something now, what is going to
14 continue to happen in generations going
15 forward.
16 AARP has a five-point plan. I'm going
17 to hit the highlights of it for you.
18 One is quality of care. We recommend
19 that all nursing homes be required to spend
20 more resources on direct care, along with
21 increasing nursing home staff levels and
22 working to ensure strict compliance with
23 infectious disease controls, including
24 increasing staffing for the Long Term Care
555
1 Ombudsman Program.
2 AARP strongly recommends that the
3 state add $5 million to the Long Term Care
4 Ombudsman Program, which currently has a
5 funding level of 1.19 million. We need to
6 hire and train more professional staff. We
7 know that during this pandemic, because long
8 term ombudsmen for the most parts were
9 volunteers and older people who could not go
10 into the system, that whole level of
11 oversight was missing.
12 Retroactive repeal of legal immunity.
13 I know that's come up with a lot of other
14 testimonies before mine. We just need to
15 stop shielding long-term-care facilities for
16 any negligent care. Families have to have
17 recourse.
18 Transparency. AARP recommends
19 codifying the requirement of daily reporting
20 of data on fatalities and infectious rates
21 among both residents but also staff.
22 Home- and community-based services.
23 We need $27 million more in home- and
24 community-based services so we can keep
556
1 people out of nursing homes and institutions,
2 which cost more money every way you think
3 about it, and it's not what older people nor
4 their families want for them.
5 Visitation; this has been hit before.
6 We need to ensure long-term-care facilities
7 are providing safe in-home facilitative
8 virtual visitation.
9 We need to expand telehealth.
10 And I just want to thank you -- oh, my
11 God, I did it, 3 seconds to go. I thank you
12 all. More details in my testimony. But nine
13 hours and counting, cheers to all of you for
14 doing this. Can't thank you enough for the
15 wonderful advocates that you all are.
16 CHAIRWOMAN KRUEGER: Thank you.
17 Okay, next is Talya Schwartz.
18 DR. SCHWARTZ: Good evening, and thank
19 you for the opportunity to testify today on
20 behalf of the Coalition of New York State
21 Public Health Plans.
22 I'm Dr. Talya Schwartz, president and
23 CEO of Metro Plus Health Plan, a wholly owned
24 subsidiary of Health + Hospitals. We serve
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1 over 120,000 Medicaid beneficiaries in New
2 York City, with most of our beneficiaries
3 identifying themselves as minorities.
4 I'd like to talk to you today about
5 the elimination of the Medicaid quality
6 incentive bonus in the Executive Budget.
7 This step is in direct opposition of New York
8 State's goal to reduce inequity and
9 disparities in healthcare, which is the very
10 mission of our plan.
11 For many years Metro Plus Health and
12 other plans have been committed to closing
13 gaps in the care of the underserved
14 population, and we have been successful in
15 doing so. This was possible due to the
16 investments we made in people who specialize
17 in quality improvement methods so that the
18 improvements actually stick, in methodology,
19 in data, and ongoing collaboration, including
20 financial incentives, with our provider
21 partners.
22 The majority of the quality incentive
23 funds we receive from the state are
24 distributed to top-performing providers to
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1 sustain and continue incentivizing good
2 quality of care for our members. And we have
3 good evidence that this foundation, that was
4 built over many years, has paid off. In the
5 past four years our quality work has led to
6 over 10,000 more breast cancer and colorectal
7 cancer screenings. Over 6,000 more members
8 improved control of their diabetes. And over
9 1700 additional new moms received post-partum
10 care.
11 These are just a few examples as to
12 why this funding matters. We applied the
13 quality incentive funds in a variety of
14 effective ways. Since the population we
15 serve often cannot find time to take care of
16 themselves, we bring the care to them. Our
17 members can get health screenings, dental
18 care, immunizations and more in their
19 communities.
20 We hold between 50 and 70 community
21 events a year. We incentivize our members to
22 take care of their health through a member
23 rewards program which doesn't just push
24 people to get a checkup and track their steps
559
1 and get flu vaccines, but this program was
2 critical to support our most vulnerable
3 members when we sent 10,000 boxes of food and
4 PPE at the height of the pandemic.
5 We launched a diabetic peer program
6 matching people with controlled diabetes to
7 people with uncontrolled diabetes. This
8 program resulted in a 30 percent increase of
9 better control. To make the program really
10 work, we needed to also address food and
11 housing insecurities, transportation for
12 almost 19 percent of the participants, and
13 problems with taking medications for over
14 one-third of the participants, in which case
15 we assisted with home delivered medications,
16 pill packs, and calling doctors to order
17 refills.
18 Getting meaningful improvements takes
19 investment of resources.
20 In closing, we cannot afford to ignore
21 that the populations served by this quality
22 funding are at the highest risk. And as we
23 have come to learn through the recent
24 pandemic, the entire healthcare system will
560
1 suffer if their healthcare needs are not
2 addressed. I urge you to restore the quality
3 funding pool and protect it by including
4 statutory language to make the quality pool
5 permanent in the budget bills.
6 Thank you.
7 CHAIRWOMAN KRUEGER: Thank you.
8 And next we have James Clyne,
9 LeadingAge New York.
10 Turn your speaker on.
11 MR. CLYNE: Yup, thank you.
12 I represent over 400 long-term-care
13 providers across New York State, the full
14 continuum of care -- nursing homes, assisted
15 living, home care, managed long-term-care
16 plans, and housing for the elderly.
17 Over the next 10 years, the over-65
18 and over-85 population of New York State is
19 going to grow by 40 percent, yet the state
20 has completely failed to invest in services
21 for seniors. Over 65 percent of the
22 not-for-profit and county homes, heading into
23 the pandemic, were already losing money, and
24 67 percent of the CHHAs in New York State
561
1 were losing money heading into COVID.
2 The Medicaid reimbursement rate for
3 nursing homes is the worst in the country
4 when you compare expenses to reimbursement.
5 There's a loss of $64 a day for serving
6 Medicaid recipients in nursing homes. That's
7 because the state has not provided a
8 cost-of-living increase in 12 years, and at
9 the same time has done a billion dollars
10 worth of budget cuts in long-term care over
11 the last three budgets, twice the amount of
12 any other area in Medicaid.
13 At the same time, the state has failed
14 to invest in long-term-care services, either
15 through the Transition Grant Program or the
16 Medicaid DSRIP program, the federal waiver.
17 In the case of the transition program, only
18 10 percent of the funds have gone to
19 long-term care. And as far as the DSRIP
20 program, only 2 percent of the funds have
21 gone to long-term care -- even though
22 long-term care makes up 42 percent of the
23 state's Medicaid budget cap.
24 Since 2014, 50 county and
562
1 not-for-profit nursing homes have been sold,
2 13 have closed, and 30 assisted living
3 programs have also closed.
4 The system was fragile going into
5 COVID. The state made the matter worse by
6 doing a half-percent Medicaid cut in April.
7 So in the middle of a pandemic, the state did
8 a cut to the largest funder of services in
9 nursing homes and one of the largest funders
10 in home care.
11 The providers faced enormous costs,
12 whether it was PPE, testing, or staffing.
13 These costs have not been reimbursed. The
14 federal government did provide some aid, and
15 we thank them for that, but the federal aid
16 for nursing homes covered roughly one-third
17 of the increased costs as a result of COVID.
18 So we had a fragile system hit by a
19 pandemic that both the federal government,
20 CDC and the state were unprepared for, and
21 the long-term-care system has faced the
22 consequences of that.
23 Thank you for the opportunity, and I'd
24 be happy to answer any questions.
563
1 CHAIRWOMAN KRUEGER: Thank you very
2 much.
3 And our next is Heidi Siegfried,
4 CIDNY.
5 MS. SIEGFRIED: Hi. I'm the health
6 policy director at Center for Independence of
7 the Disabled in New York. And we were
8 founded in 1978. Our mission is to serve
9 people with all types of disabilities, so
10 that would be mobility impairments but also
11 people who are deaf and hard of hearing,
12 blind and low vision.
13 And the idea is that we want to make
14 sure that people have the services and
15 supports necessary to remain independent in
16 the community, and also the policies to help
17 people remain independent in the community
18 and not be going into institutions like
19 nursing homes, like psychiatric centers, like
20 prisons.
21 So we have always supported the
22 New York Health Act. I haven't heard anyone
23 mention that yet today. But that would be
24 the gold standard for us in terms of having
564
1 health coverage.
2 But the second thing that's at the top
3 of our list is the Medicaid Global Cap.
4 We've been traveling up to Albany to oppose
5 this for many years now because we really did
6 see that, you know, it operated to really cut
7 down on the services that are necessary for
8 us to remain independent in the community.
9 So these cuts were not carried out by
10 the Governor or the Legislature, they were
11 carried out by managed long-term-care
12 companies. Which was that we simultaneously
13 required people who were dual-eligibles to
14 get their care through managed long-term-care
15 companies, and hours of home care that was
16 necessary to avoid going into institutions
17 were cut.
18 The only way to keep those hours was
19 to use the due process system to request a
20 fair hearing, and of course it's very
21 important to have consumer assistance funding
22 to help people with these fair hearings
23 because they wouldn't be able to exercise
24 their rights without it.
565
1 The other consumer assistance that's
2 very important to us that -- it does come
3 through the Aging Committee, but the
4 Long Term Care Ombuds Program. We operate
5 the Long Term Care Ombuds Program for
6 New York City, and we've been requesting an
7 increase in our funding for many years. And
8 now that I hear that Beth is requesting
9 5 million, I think we will too. We had
10 mostly been asking for 3 million all these
11 years.
12 But, you know, the state and the city
13 comptroller have both come out with reports
14 explaining how underfunded it is: New York's
15 at the bottom of the heap in terms of putting
16 in its own funds for the program. And we
17 would actually need 23 more full-time
18 staff -- this is what the comptroller found
19 in New York City -- just to be fully staffed
20 at what has been recommended long ago by what
21 used to be the Institute on Medicine.
22 I do want to say that we do support
23 the Fair Pay for Home Care campaign that
24 Bryan mentioned, and also the innovation fund
566
1 to try to help have a workforce for when we
2 get those hours restored. We have to have
3 people to staff them. Sometimes we just find
4 that there isn't people to staff them.
5 And we do support the revenue, yes --
6 CHAIRWOMAN KRUEGER: Thank you. You
7 ran out of time, so I'm just going to cut you
8 off there, okay?
9 MS. SIEGFRIED: Sure.
10 CHAIRWOMAN KRUEGER: Thank you very
11 much.
12 And our last testifier on this panel
13 is Douglas Hovey, Independent Living, Inc.
14 MR. HOVEY: Well, good evening. And
15 it's great to see my colleague from New York
16 City, Heidi Siegfried. Nice to see you,
17 Heidi.
18 My name is Doug Hovey. I'm the
19 president and CEO of Independent Living,
20 Incorporated.
21 We're also, like CIDNY, a consumer-run
22 cross-disability service organization. We're
23 a member of the New York Association on
24 Independent Living, which consists of
567
1 41 Independent Living Centers throughout
2 New York State. Much of our work is
3 dedicated to advocating for the
4 long-term-care needs of older adults and
5 people with disabilities. I also serve as a
6 member on CDPAANYS -- you heard from Bryan
7 earlier -- and also the Most Integrated
8 Setting Coordinating Council.
9 We know there are a number of
10 long-term-care options. However, the one
11 that seems to dominate most thinking and
12 planning processes continues to be placement
13 in nursing homes, based on the
14 institutionally biased belief that congregate
15 care facilities are the safest choice. These
16 assumptions have been deeply challenged as
17 thousands of our nursing home residents
18 needlessly lost their lives to COVID-19. The
19 impacts of these deaths are immeasurable.
20 I'm going to get right to the point
21 and tell you, it's time to plan for the
22 phased elimination or systemic closure of
23 nursing homes -- in a planned fashion, one
24 that protects the interests of nursing home
568
1 residents, but also ultimately protects
2 people who are faced with nursing home
3 placement.
4 Most of you know even the
5 best-operated nursing home is not a good
6 place to be. I don't think any one of us
7 signs up to be in a nursing home. We have
8 the capacity to support people in the
9 community. We need to build up our community
10 infrastructure so that we can continue to
11 help people to age in place with dignity and
12 respect, like they deserve.
13 Several legislators asked
14 Commissioner Zucker today if the DOH can
15 ensure improvements in the quality of care
16 for nursing home residents. Let's be clear.
17 Government does not have the power to control
18 nursing homes. They never have. They never
19 will. It would take an act of God or some
20 miracle to change the outcomes for nursing
21 home patients and to stop the high incidence
22 of infection, including urinary tract
23 infections, respiratory infections, skin
24 breakdown into decubitus ulcers, influenza,
569
1 gastroenteritis, sepsis, and now COVID-19 and
2 its evolving strains, right, all endemic to
3 institutional congregate care settings.
4 By design, congregate care
5 institutions are a recipe for depression,
6 mental and physical illness, and premature
7 death. We're in the 21st year of the
8 21st century. It's time to call for the
9 phased elimination and create a better
10 collaboration between state and local
11 governments and a better coordination of care
12 at the local level.
13 We can do this. We can support people
14 to remain in the community, to age in place.
15 There are great programs that are available
16 that can help do this. We just have to give
17 more attention to them.
18 And my time is up.
19 CHAIRWOMAN KRUEGER: Your time is up.
20 Thank you very much.
21 MR. HOVEY: Thank you.
22 CHAIRWOMAN KRUEGER: I see the hand of
23 Rachel May.
24 SENATOR MAY: Yes, thank you.
570
1 And Mr. Hovey, I hope you will end up
2 being on the Reimagining Long Term Care Task
3 Force if the bill gets passed and signed into
4 law.
5 MR. HOVEY: I'd be honored to. Thank
6 you.
7 SENATOR MAY: I have two questions for
8 several of you. One of them is about getting
9 people off the waiting list for home care
10 services.
11 Two years ago the Office for the Aging
12 put $15 million in the budget to do that, and
13 they also claimed it would save $34 million
14 in Medicaid costs by keeping people out of
15 nursing homes. This year you're telling me
16 and I'm advocating for that 27 million to get
17 people off the new waiting list, but I don't
18 have a number and I'm wondering if anybody
19 can estimate what it will save in actual
20 Medicaid costs to the state, how many people
21 might be likely to stay out of nursing homes
22 and, you know, save money for the state that
23 way.
24 MS. FINKEL: Senator, I will just say
571
1 I know I owe you that number. You asked me
2 for it, and I'm working on it.
3 SENATOR MAY: Okay.
4 MS. FINKEL: -- you put me on the spot
5 and I'll give it to you -- great. But if
6 not --
7 (Unintelligible cross-talk.)
8 SENATOR MAY: I don't mean to put you
9 on the spot. I want to go on record, I want
10 to go on record that we are talking about
11 savings. This is an investment that pays
12 off.
13 MS. FINKEL: Absolutely. Thank you.
14 SENATOR MAY: And my other question
15 was about the fiscal intermediary process.
16 So I represent Syracuse. Central
17 New York has some great organizations that
18 have been acting as fiscal intermediaries for
19 quite a while. They fill really important
20 niches in our continuum of care in our
21 region, and none of them was selected to be a
22 fiscal intermediary in the latest
23 competition. And I'm wondering if any of you
24 has concerns about that process, if you feel
572
1 like the results are going to be okay and we
2 should just move on, or if it is worth
3 fighting about those results.
4 MR. HOVEY: I think there are a lot of
5 people who are concerned about the process,
6 the RFO selection process. But I think also
7 we're concerned about the radical change,
8 that 80 percent of the providers have been
9 eliminated. Which, you know, if you do the
10 math, about 60,000 people or more, 60,000 to
11 70,000 people are going to be looking for a
12 new fiscal intermediary. So there's going to
13 be this massive attempt to try to ramp up
14 these existing 68 programs and ratchet down
15 close to 300 programs.
16 That's a massive undertaking. And if
17 you talk to any of the experts, consultants
18 in this type of transformation, they'll tell
19 you it takes 36 months minimum to do this
20 effectively without massive disruption to the
21 population.
22 SENATOR MAY: Thank you very much.
23 And thanks for sticking it out so
24 long.
573
1 CHAIRWOMAN KRUEGER: Helene?
2 CHAIRWOMAN WEINSTEIN: Yes.
3 Assemblywoman Miller.
4 CHAIRWOMAN KRUEGER: Melissa, are you
5 there?
6 ASSEMBLYWOMAN MILLER: Yup, I'm here.
7 CHAIRWOMAN WEINSTEIN: There she is.
8 ASSEMBLYWOMAN MILLER: I'm just
9 waiting for the video to go on.
10 You know, what Senator May was just
11 asking, I have significant concerns over the
12 same issue. They did somewhat of a similar
13 move with the managed care -- you know, the
14 Medicaid service coordination agencies into
15 CCOs. And every -- you know, all the
16 consumers were promised the sun and the moon
17 and the stars, and the transition was so
18 chaotic, there were just way too many
19 providers -- way too many consumers for the
20 agencies that were now CCOs. You know, they
21 went from, I don't even know, thousands to I
22 think seven CCOs. So I have significant
23 concerns.
24 Are you concerned that you're going to
574
1 have consumers that will be without care?
2 MR. HOVEY: I think we should be very
3 concerned about the transition in such a
4 short period of time, there's no question
5 about that. It's a big, big restructure, a
6 massive restructuring of a large system that
7 serves -- Bryan said 139,000 people receive
8 services. That's a lot of people.
9 ASSEMBLYWOMAN MILLER: So
10 successfully.
11 MR. HOVEY: Right. So if you take
12 80 percent of the providers, you know, you
13 can theoretically say 80 percent of that
14 130,000 are going to be looking for a new
15 provider to get connected so that they don't
16 have a disruption in their services. And
17 these are services that obviously you know
18 that help people get out of bed in the
19 morning to get bathed and get showered and
20 get their meals made.
21 ASSEMBLYWOMAN MILLER: And the
22 alternative is when they can't get that care,
23 the state can't seem to grasp that
24 inadvertently it becomes way more expensive
575
1 for them when these consumers now wind up in
2 skilled care facilities or nursing homes
3 because they cannot get the care in the
4 community that this provides.
5 So -- well, thank you very much for
6 all that you're doing. And I hope and pray
7 that we can help with this and dissuade some
8 of those changes from being made.
9 MR. HOVEY: Thank you.
10 CHAIRWOMAN KRUEGER: Thank you.
11 And I see Senator Sue Serino's hand
12 up.
13 SENATOR SERINO: Thank you,
14 Madam Chair.
15 And I would just like to start off by
16 saying thank you to all of you for all of
17 your great work and your great advocacy.
18 And I know it's late, but I have a
19 quick question for Jim. Jim, in your
20 testimony you mentioned that the medical
21 model adult day healthcare programs have not
22 been permitted to reopen since March of last
23 year. And I think it's an important service
24 for countless New Yorkers -- not just for the
576
1 program attendees, but also for the
2 caregivers who get important respite using
3 the programs. But it's often overlooked.
4 So can you speak of it, Jim, or anyone
5 else who would like to weigh in, to the
6 impact of that policy and those closures?
7 MR. CLYNE: It has been a burden on
8 the families who have had to take care of
9 their loved ones at home. Often these are
10 people with advanced medical conditions,
11 which is why they are in the adult day health
12 program. So you're completely on target.
13 It's positive for the beneficiaries to
14 be able to come somewhere, to be able to see
15 other people. And it's important for the
16 families to be able to take a break of
17 providing 24-hour care.
18 And we believe that we can open the
19 programs, be safe, be effective, especially
20 now with vaccine that's available. As a
21 matter of fact, if they had included the
22 adult day people into the vaccination program
23 with their parent nursing homes, they would
24 all be vaccinated now. Which is something we
577
1 had advocated for but were not taken up on
2 that.
3 SENATOR SERINO: That's a really good
4 point too, Jim, because I was just going to
5 mention that. That would have been great,
6 right, to have these medically fragile people
7 vaccinated there. So yeah, thank you. And
8 hopefully we can all keep on -- we've been
9 advocating, and we can all keep on advocating
10 for them to reopen again.
11 Thank you.
12 CHAIRWOMAN KRUEGER: Helene, I think
13 you have a few Assemblymembers.
14 CHAIRWOMAN WEINSTEIN: Assemblyman
15 Jensen.
16 ASSEMBLYMAN JENSEN: Thank you,
17 Madam Chair.
18 This question is for Jim. We
19 certainly a lot of times today talked about
20 needed increased staffing. So you could just
21 tell us a little bit about some of the
22 struggles that your members face -- whether
23 they're nursing homes, assisted living,
24 independent living, whatever it may be --
578
1 some of the struggles that your members are
2 seeing in hiring staff, recruiting staff.
3 And not just nursing staff, but really
4 activities staffing, housekeepers, kitchen
5 staff, things of that nature. Where are you
6 really seeing the need, and what do they have
7 to struggle with to get those people in the
8 building and working?
9 MR. CLYNE: Well, the staffing problem
10 for my members is across the board, as you
11 just pointed out, every job title you
12 mentioned.
13 Obviously it's particularly tough
14 recruiting RNs because we're competing with
15 hospitals, in many cases, which pay better.
16 And you have to remember that the financial
17 situation for my members was fragile to begin
18 with, and then add the increased costs of PPE
19 and testing on top of that. It's just been a
20 struggle to recruit and retain staff.
21 Particularly, again, for the -- I think the
22 undeserved bad press about nursing homes, the
23 workers who worked in the nursing homes
24 through this pandemic are heroes, and they
579
1 should be applauded just like the hospital
2 workers were. And instead, you know, they're
3 being made the scapegoat, which is really
4 completely unfair.
5 ASSEMBLYMAN JENSEN: Are you seeing,
6 of your members more nursing home-related
7 that have specialty units, whether they're
8 pediatric units, respiratory units -- are you
9 seeing less of those being open or being
10 retained because it's harder to get
11 respiratory therapists or practitioners that
12 can actually -- are well-versed in that
13 practice area wanting to work in a
14 long-term-care setting as opposed to a
15 hospital setting?
16 MR. CLYNE: No. What happens is
17 members struggle along and they have to, they
18 end up in many cases having to go to
19 contracting out for services, which are more
20 expensive. They'd like to hire, in many
21 cases, hire their own staff, but sometimes
22 you have to go and contract out. We always
23 staff to be able to provide the services.
24 The one place where there's a huge
580
1 problem is in home care, where people
2 upstate, they simply can't get -- they're
3 authorized for hours, and they can't get
4 caregivers to come in. And that's a huge
5 problem upstate.
6 ASSEMBLYMAN JENSEN: So is there a
7 drop-off that if you go to hiring from an
8 agency or you're bringing in outside care
9 staff, is there a drop-off in the level of
10 care because they don't have an association
11 with that specific facility?
12 MR. CLYNE: I don't want to say
13 there's a drop-off in the level of care, but
14 certainly there are some academic studies
15 that show that the retention of staff in
16 nursing homes is better for the long-term
17 care because they simply know the residents
18 better, they know what their conditions are.
19 It's the same in home care too. If
20 you can keep a consistent staff person in the
21 home, it's better, regardless of the service.
22 ASSEMBLYMAN JENSEN: Thank you, Jim.
23 Thank you, Madam Chair.
24 CHAIRWOMAN KRUEGER: Thank you.
581
1 Any -- I see one more. Two more.
2 SENATOR RIVERA: I'm here, actually.
3 CHAIRWOMAN KRUEGER: Oh, I'm sorry.
4 Gustavo Rivera, Senator Healthcare.
5 SENATOR RIVERA: Thank you.
6 I don't know how many folks are still
7 tuned in, but I want to make sure that I give
8 an opportunity to all of you, considering the
9 folks you serve, everything that you point --
10 and I don't need the 10 minutes. I will --
11 CHAIRWOMAN WEINSTEIN: You only get
12 three. It's only three minutes anyway.
13 Three minutes to talk about the
14 Health budget.
15 (Laughter.)
16 SENATOR RIVERA: Yes, I know. I know.
17 So I want to give you all an
18 opportunity, particularly considering the
19 folks that you serve, all the issues that you
20 mentioned around the populations that you
21 care so much about.
22 The question is an open question, and
23 it is to all of you who would like to answer
24 it. What difference would it make, for the
582
1 populations that you serve and the issues
2 that you describe, for the New York Health
3 Act to become law? Anybody can take that.
4 MS. SIEGFRIED: Well, I mean, I said
5 that we supported the New York Health Act,
6 and especially now that it has long-term
7 care.
8 But the reason is not -- you know,
9 most other health advocates will tell you
10 about the remaining uninsured or the premiums
11 and copays. And for us, it's really just
12 that it would be so wonderful to have the
13 same health insurance for your whole life not
14 to constantly be proving disability and
15 recertifying and falling out of your
16 coverage.
17 And it would be great if it was
18 accountable to a democratic process once
19 we're successful in restoring the balance of
20 power in New York.
21 SENATOR RIVERA: Anybody else want to
22 chime in?
23 MR. CLYNE: We support universal
24 coverage. Our concern is the state right now
583
1 is the worst payer in the country for
2 long-term care. So putting them in charge of
3 paying for long-term care for everybody
4 raises some concerns.
5 So unless there's some protections to
6 guarantee reimbursement -- again, New York
7 is the single worst payer in the country for
8 expenses to reimbursement.
9 SENATOR RIVERA: And really -- enough,
10 Mr. Clyne, there is -- thank you for bringing
11 it up. There is actually language in the
12 bill that specifically says that the rates to
13 be established by the board of the New York
14 Health Act, the New York Health Act Board,
15 would actually -- would have to correspond to
16 the cost of care. Which is actually
17 something that does not exist anywhere in law
18 anywhere else.
19 So it would be in statute that the
20 rates to be established would have to
21 correspond to the cost of care. So there you
22 go.
23 CHAIRWOMAN KRUEGER: There you go.
24 SENATOR RIVERA: Anybody else? I just
584
1 want to make sure I give people the
2 opportunity.
3 Thank you, Madam Chair.
4 CHAIRWOMAN KRUEGER: Thank you. See,
5 Helene, it was healthcare, it just wasn't the
6 Governor's --
7 CHAIRWOMAN WEINSTEIN: That's great.
8 That's great.
9 We have two Assemblymembers. Who will
10 also be brief, I'm sure.
11 Assemblyman Kevin Byrne first.
12 ASSEMBLYMAN BYRNE: Thank you.
13 First, allow me to just agree with
14 Heidi as far as asserting equal balance of
15 power and having the Legislature -- I'm
16 assuming that you're intending -- as a
17 coequal branch of government. I like that,
18 even though I do have a slightly different
19 take on the New York Health Act.
20 I do want to make at least a statement
21 for Jim, LeadingAge and your members, as well
22 as a lot of the other folks we're probably
23 going to hear from later that represent adult
24 care facilities, nursing homes. We've heard
585
1 a lot about this is a hot topic, and it
2 really is sad that it's become this political
3 issue. I know a lot of us have been talking
4 about this because we care deeply about the
5 policies that we put forth as a state and we
6 want to make sure that we have sound policy
7 that protects our residents, our fellow
8 neighbors and New Yorkers. And we have, at
9 least speaking for myself, a lot of
10 frustration with the Department of Health and
11 the Governor's administration.
12 But I don't want that to be turned to
13 making certain, you know, industries and good
14 people into scapegoats. We do have
15 front-line workers in these adult care
16 facilities. And I want to thank you for what
17 your members have done. They should get a
18 parade, like every other healthcare worker.
19 And I just wanted to make that statement, if
20 nothing else.
21 And far as the question, Jim, to you,
22 these 30-day amendments, I'm sure you can
23 elaborate a little bit on some of your
24 concerns. I think anytime we have these
586
1 kinds of conversations about increased
2 penalties -- these are really, really
3 significant penalties -- this discussion
4 should be separate from the budget. I don't
5 think it's appropriate to include.
6 And on adult care facilities, this
7 removal of the rectification clause that's
8 been brought forth, I have a lot of concerns
9 about that.
10 So, Jim, I wanted to ask you if you
11 had any other comments that you would like to
12 elaborate with the rest of my time.
13 MR. CLYNE: I just want to -- that's a
14 good point. The penalties are really over
15 the top.
16 And if you talk to anybody, nobody
17 thinks that the Health Department is slack in
18 their regulation. I just had a member call
19 me today, they had their ninth infection
20 control survey. No problems have been found,
21 but their ninth survey since the start of the
22 pandemic. I mean, it begins to get a little
23 ridiculous.
24 And on the adult care facility side,
587
1 you have to look at those penalties. Those
2 are per day penalties that they've enacted.
3 So the penalties on nursing homes are
4 different than the penalties on assisted
5 living and adult care facilities. These are
6 actually even more draconian than they look
7 like at first blush.
8 So the problem is not a problem of
9 regulation, the problem is a problem of
10 supporting providers in what they need with
11 resources, with PPE, and with good advice on
12 how to care for people.
13 ASSEMBLYMAN BYRNE: Thank you, Jim. I
14 appreciate your comments and your testimony.
15 And thank you to everybody else as well.
16 CHAIRWOMAN KRUEGER: Thank you. Okay.
17 CHAIRWOMAN WEINSTEIN: Thank you.
18 Assemblyman Palmesano -- right, you don't
19 have -- I don't see another Senator.
20 CHAIRWOMAN KRUEGER: No, I'm just
21 looking for an Assembly -- oh, there he is.
22 CHAIRWOMAN WEINSTEIN: Yes.
23 Assemblymember Palmesano.
24 MR. HOVEY: You're on mute.
588
1 ASSEMBLYMAN PALMESANO: Sorry about
2 that. Hi, my question is for Mr. Clyne this
3 evening.
4 Mr. Clyne, I want to talk about the
5 transition from long-term Medicaid managed
6 care to the fee-for-service model,
7 particularly for our nursing homes. It's my
8 understanding from conversations that I've
9 had that the fee-for-service model works
10 better for some, while the Medicaid managed
11 care model works better for others.
12 And I'll give you an example in my
13 district. I had a facility that negotiated
14 fair rates with the managed care company
15 which they thought were fair and proper, but
16 now they were required to transition to a
17 fee-for-service model. And what that did is
18 it's cost them a half a million dollars a
19 year in reimbursements.
20 And you couple that with the 1 percent
21 reduction and other cuts, plus other pending
22 actions that are being talked about with the
23 Legislature and the costs they've had during
24 the pandemic, it's really kind of a recipe
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1 for a devastating impact on a small rural
2 facility -- and concerns relative to other
3 facilities and their long-term solvency.
4 So my first question for you is do you
5 have any data showing how this has impacted
6 your different facilities, your members --
7 good, bad or indifferent, the overall impact
8 that's going to have on them?
9 MR. CLYNE: The overall impact was
10 positive to go away from managed care because
11 of delays in payment.
12 But there are rural facilities that
13 are key providers in their area who were able
14 to negotiate additional funds from managed
15 care programs. We would hope that the state
16 would take that into account as they look at
17 the rate-setting system.
18 If they want to keep -- if the state
19 wants to keep not-for-profit and county
20 providers in the system, they need to do
21 something about the rates. If they don't,
22 you're going to end up with a system that's
23 going to be predominantly or almost
24 exclusively for-profit. I mean, it already
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1 is predominantly, but that's the way it's
2 going.
3 ASSEMBLYMAN PALMESANO: That's what I
4 was going to get at.
5 Wouldn't it have been better, if we're
6 going to move to that fee-for-service model,
7 which if it works well for some -- wouldn't
8 it have been better and more -- {Zoom
9 interruption} -- to include a hold-harmless
10 provision in that process so those facilities
11 that were able to negotiate better, fairer
12 rates were not being penalized for being able
13 to do that?
14 And so do you see any opportunity for
15 that to be revisited? Have you had
16 conversations with the State Department of
17 Health or Budget along those lines, looking
18 at that as we move forward?
19 Because I just think that would be a
20 wiser thing to do, instead of having those
21 institutions out there, like the one in my
22 district, that again lost half a million
23 dollars because of this change that they were
24 required to go along with, when they worked
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1 the process and had a fairer reimbursement?
2 MR. CLYNE: Yeah, we have a couple of
3 members who are talking with the department
4 right now, looking at the Vital Access
5 Program as a way to supplement their rate and
6 maybe move to a transition.
7 In rural areas, a lot of times it's
8 the nursing home which is in many cases a
9 vertically integrated provider providing home
10 care and housing, they're the only ones
11 available to really do care management with
12 boots on the ground.
13 ASSEMBLYMAN PALMESANO: All right,
14 thanks. I'd love to have a future discussion
15 with you on that issue. Thanks for what
16 you're doing and your --
17 MR. CLYNE: Love to do it.
18 ASSEMBLYMAN PALMESANO: -- service to
19 our communities. Thank you.
20 MS. FINKEL: Is it okay if I just
21 answer the question that Senator May asked
22 about the savings? Can I just real quick
23 answer that?
24 CHAIRWOMAN KRUEGER: Okay.
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1 MS. FINKEL: So she asked what the
2 savings would be on the $27 million increase
3 to home- and community-based services. It
4 would be $60 million would be saved by an
5 investment of $27 million.
6 CHAIRWOMAN KRUEGER: Thank you.
7 Did you get that, Rachel? Were you
8 listening?
9 SENATOR RIVERA: Rachel had to leave.
10 CHAIRWOMAN KRUEGER: She had to leave.
11 Okay, we'll make sure she gets that
12 information. Thank you, Beth.
13 SENATOR RIVERA: Marriage maintenance,
14 apparently.
15 CHAIRWOMAN KRUEGER: Ah.
16 Thank you all very much for being with
17 us this evening. Appreciate it.
18 And we're going to move on to the next
19 panel, which will be New York Association of
20 County Health Officials, Sarah Ravenhall;
21 New York Health Plan Association,
22 Eric Linzer; Medical Society of the State of
23 New York, Bonnie Litvack; and New York State
24 Association of Health Care Providers,
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1 Kathy Febraio.
2 Hello, everyone. Who's up first?
3 Sarah is up first. Are you here?
4 MS. RAVENHALL: Hello. I'm here.
5 CHAIRWOMAN KRUEGER: Great. Welcome.
6 MS. RAVENHALL: Thank you.
7 Senator Rivera, Assemblymember
8 Gottfried, Senator Krueger, Assemblymember
9 Weinstein and esteemed committee members,
10 thank you for this opportunity to present the
11 state budget priorities of New York's
12 58 local health departments. I know you
13 share my pride in the thousands of public
14 health professionals who have continuously
15 put themselves in harm's way to respond to
16 the pandemic. They have met this challenge
17 with profound courage, inexhaustible
18 commitment, and unrivaled expertise.
19 They are now fully engaged in vaccine
20 administration, even as they fulfill
21 innumerable other public health
22 responsibilities. I've never been more
23 proud, humbled and honored to represent them.
24 This year we respectfully request the
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1 following in response to the Executive's
2 proposed budget:
3 Restoration of proposed cuts to
4 Article 6, state aid in New York City, and
5 restoration of categorical public health
6 funding.
7 Incorporation of health positive
8 revenue producing proposals with revenue
9 earmarked for public health. These proposals
10 are detailed in our full testimony document.
11 An invitation to provide input into
12 the regulated adult-use cannabis policy being
13 proposed by the state and Legislature. If
14 enacted, local health departments will be
15 tasked with provision of community education
16 and dedicated funding will be needed.
17 New York State continues to confront a
18 growing number of monumental public health
19 challenges. In 2018, vaping-related lung
20 illness; 2019, a massive measles outbreak;
21 and in 2020, the first global pandemic in
22 recent history. All these events coincide
23 with ongoing public health issues such as
24 increased rates of sexually transmitted
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1 infection, hepatitis A outbreaks, opioid
2 overdose and deaths; suicide fatalities;
3 children with elevated blood lead levels, and
4 others.
5 Year after year we see decreasing
6 appropriations proposed within the Article 6
7 funding line for our local health departments
8 due to administrative actions, the local
9 property tax cap, and in some cases cuts in
10 reimbursement, such as the one proposed in
11 New York City.
12 Local health departments have not
13 received an increase in core public health
14 aid in more than six years. Instead, state
15 budget appropriations for public health
16 spending have been either flat-funded or
17 reduced. We're experiencing the greatest
18 public health disaster in a century. If we
19 fail now to recognize that public health
20 support must be increased, then we're already
21 surrendering to the next public health
22 threat.
23 We ask you, New York's respected
24 lawmakers, to reinvest resources into the
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1 public health infrastructure in New York
2 State.
3 These facts leave me with two
4 important questions. Why has the Executive
5 proposed profound cuts to public health in
6 the midst of a public health crisis? My
7 second question, which I direct to all
8 New York State policymakers, is what do you
9 need from us to help you effectively and
10 appropriately resource our local public
11 health infrastructure?
12 Thank you for your leadership and the
13 opportunity to present today.
14 CHAIRWOMAN KRUEGER: Thank you.
15 Next, Eric Linzer.
16 MR. LINZER: Thank you.
17 On behalf of our 28 member health
18 plans and the 8 million individuals who they
19 provide coverage for, appreciate the
20 opportunity to offer testimony this evening.
21 Throughout the current pandemic, the
22 health and well-being of New Yorkers has been
23 the number-one priority of our member health
24 plans. We're proud of the work that they've
597
1 done to protect patients, support the
2 delivery system, and assist employers.
3 This has included eliminating
4 cost-sharing for COVID-19 testing and
5 treatment, as well as for telehealth
6 services, providing financial support to the
7 delivery system, extending premium grace
8 periods for consumers and small businesses,
9 and working with the state and local public
10 health authorities and the delivery system to
11 provide information to residents about the
12 COVID-19 vaccine and that they'll receive the
13 vaccine at no cost.
14 Given the current public health
15 crisis, we are concerned about the
16 significant cuts to the Medicaid program,
17 particularly the cuts to the health plans
18 that the Governor's budget has proposed,
19 totaling more than $1.5 billion. This
20 includes a reduction that the state has
21 described as reflecting the reduction in
22 utilization that took place in the second
23 quarter of last year. However, what this
24 fails to acknowledge is that that was for
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1 just one quarter and merely delayed the
2 delivery of care until the latter half of
3 2020 and into 2021, as plans have experienced
4 a return to normal and increased utilization
5 beginning in the third quarter of last year.
6 Further, we're concerned about the
7 cuts that Dr. Schwartz had mentioned on the
8 last panel, having to do with the
9 managed-care Quality Incentive Program. And
10 really this begs the question of, you know,
11 are these cuts necessary, as well as the size
12 and scope of these cuts.
13 It's an open question, considering
14 that the federal government has recently
15 announced it's extending the Enhanced FMAP
16 funding through June of next year, but the
17 Governor's proposal has only counted on the
18 enhanced funding through June of this year.
19 When you consider that, coupled with
20 the additional increases in Enhanced FMAP
21 that's being considered in Washington, D.C.,
22 and other additional federal aid to the
23 states that New York is expected to receive,
24 we think that these cuts are unwarranted and
599
1 unnecessary, and we would urge the
2 Legislature to ensure that as part of the
3 budget process any Enhanced FMAP goes to
4 where it belongs, which is back to Medicaid
5 to offset these proposed cuts.
6 In addition, we remain concerned and
7 opposed to the administration's plan to
8 transition the Medicaid pharmacy benefit from
9 managed care to fee-for-service. We don't
10 think that it's going to generate the savings
11 and will actually cost the state money. More
12 importantly, it's going to adversely affect
13 the quality of care for millions of Medicaid
14 enrollees, particularly those with chronic
15 health conditions and who rely on their care
16 to be integrated and coordinated across the
17 continuum.
18 We do support the Governor's proposal
19 to eliminate the $20 monthly premium for the
20 Essential Plan. We also support the
21 Governor's budget proposal to allow for
22 multi-state licensure for telehealth
23 services, and creating an interstate
24 licensure program.
600
1 So with that, I appreciate the
2 opportunity to testify and look forward to
3 answering any questions.
4 CHAIRWOMAN KRUEGER: Thank you very
5 much.
6 And our next speaker -- oops, I lost
7 my little chart, sorry. Excuse me. After
8 Eric Linzer is Bonnie Litvack, Medical
9 Society of the State of New York.
10 DR. LITVACK: Thank you very much for
11 the opportunity to testify. I am Dr. Bonnie
12 Litvack, and I am president of the Medical
13 Society of the State of New York, which
14 reports over 20,000 physicians across every
15 specialty and in every region of the state.
16 Our members have been serving on the
17 front lines through the pandemic, putting
18 their health and their families' health at
19 risk because of their dedication to serving
20 their patients. We are enthused by the
21 steady progress New York is making in
22 increasing the number of those vaccinated and
23 the steady decrease in new COVID cases. We
24 continue to work with the administration to
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1 promote the importance to our patients of
2 receiving the vaccine, as well as advocating
3 for community physicians to receive doses to
4 immunize their patients.
5 We, though, have many concerns with
6 the proposed state budget. There are some
7 positive aspects, such as state licensing of
8 pharmacy benefit managers and a proposal to
9 increase the supply of personal protective
10 equipment, but on balance, the adverse
11 proposals outweigh the positives.
12 We're certainly hopeful that the
13 federal COVID percentage will eliminate the
14 need for significant cuts, but we share the
15 concerns expressed earlier by Assemblyman
16 Cahill, Assemblyman Byrne and others, about
17 the impact of the proposal that would require
18 17,000 physicians in the Excess Liability
19 Insurance Program to bear 50 percent of the
20 cost of these policies.
21 The program has always served as a
22 critical compromise to address the
23 significant healthcare system implications of
24 New York's excessive liability costs that far
602
1 exceed any other state. Yet this one budget
2 proposal would foist thousands of dollars of
3 new costs on physicians, and even tens of
4 thousands of dollars when their patient
5 visits and their revenues are down. Many
6 physicians will simply be unable to afford
7 this, will forgo the coverage and/or leave
8 the state.
9 We're also concerned, as Assemblyman
10 Salka mentioned, about the $200,000 cut to
11 MSSNY's Committee for Physician Health. It's
12 a critically important program that's funded
13 through physician registration. It assists
14 physicians suffering from mental illness and
15 substance abuse, and it's a highly successful
16 program that's more important than ever in
17 this time of COVID.
18 We also strongly urge you to reject
19 Article VII proposals that we believe are
20 very counterproductive and would -- such as
21 proposals that would grant the Commissioner
22 of Health wide discretion to disclose
23 complaints about physicians to the public
24 without adequate due process. That has the
603
1 potential to unfairly destroy physician
2 reputations in the communities they served.
3 We're also concerned with the
4 proposals to significantly expand the scope
5 of big box pharmacy chains to provide
6 healthcare services without physician
7 coordination.
8 We have identified several other
9 concerns in our written testimony, and I'm
10 happy to answer any questions for you. Thank
11 you again for the opportunity to testify.
12 CHAIRWOMAN KRUEGER: Thank you.
13 And our last testifier for this panel,
14 New York State Association of Health Care
15 Providers, Kathy Febraio.
16 MS. FEBRAIO: Thank you. I am Kathy
17 Febraio, president of the New York State
18 Association of Health Care Providers,
19 representing home care across the State of
20 New York.
21 I thank you for the opportunity to
22 testify and to update you on the state of the
23 home care industry as it continues to provide
24 safe and economical care during the pandemic
604
1 while we are simultaneously responding to
2 significant policy changes.
3 The experience of the last year has
4 clearly shown it is essential to invest in
5 and to protect the economic viability of the
6 home care industry in order to ensure
7 individuals with disabilities, those with
8 chronic illness, and elderly populations
9 continue to have access to services that
10 allow them to remain in the comfort and
11 safety of their homes. Patients do better at
12 home.
13 It is not the time to add more
14 upheaval and uncertainty to the industry, as
15 the state has charted its course to do --
16 which the recently announced CDPAP contract
17 awards has highlighted. Extensive state
18 regulations and policy changes crushed the
19 industry by creating completely avoidable
20 turmoil, chaos, gaps in care, and barriers to
21 service.
22 Home care needs your support. We are
23 asking you to eliminate the language enacted
24 in last year's budget that created the coming
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1 LHCSA RFO. This is going to play out just
2 like the CDPAP RFO.
3 We ask you to reimburse providers for
4 the increased cost of personal protective
5 equipment and COVID-related expenses. We
6 thank you for your support of Bill S2543 and
7 A179. However, MLTC plans are receiving
8 COVID-related rate reductions for decreased
9 utilization, and they are passing that
10 reduction to home care providers beginning
11 March 1, to defray the impact to the plans --
12 this while home care has experienced
13 drastically increased costs for services.
14 MLTCs will immediately share the
15 burden of reduction and fail to reimburse
16 actual expenses. Unfortunately, this is the
17 norm.
18 We ask you to reject the 1 percent
19 across-the-board Medicaid cut, to eliminate
20 the Medicaid Global Spending Cap, and reject
21 the Governor's cut in recruitment and
22 retention funding.
23 We ask that you allocate at least
24 25 percent of the Healthcare Transformation
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1 Fund to home- and community-based services,
2 and to require managed-care organizations to
3 directly pass through minimum wage funding to
4 their providers.
5 We ask for the elimination of the
6 requirement for an unnecessary independently
7 audited financial statement for wage parity
8 reporting. We ask to make permanent the
9 nursing home transition and diversion and TBI
10 waiver programs from managed care. And we
11 ask, if there is any federal funding to be
12 had, that you ensure that New York State
13 passes it on to the front-line providers.
14 Thank you.
15 CHAIRWOMAN KRUEGER: Thank you.
16 Any questions from any of my
17 colleagues?
18 CHAIRWOMAN WEINSTEIN: We have
19 Assemblyman Ra who would like to ask a
20 question.
21 CHAIRWOMAN KRUEGER: Certainly.
22 ASSEMBLYMAN RA: Thank you, Chairs.
23 Good evening, everybody. I just
24 wanted to follow up with Dr. Litvack
607
1 regarding -- she went into this a little bit
2 with the excess medical malpractice proposal.
3 And, you know, we had a little conversation
4 about this with the insurance superintendent
5 earlier today, who basically provided, you
6 know, little detail other than to say that
7 she felt that the medical malpractice market
8 had stabilized and, you know, that she didn't
9 think this was going to be that disruptive of
10 a proposal.
11 I would tend to disagree, and I see
12 you certainly do. And you seem to have
13 pretty detailed numbers in your testimony.
14 So I'm just wondering if you can elaborate
15 more on your methodology in those numbers and
16 really the impact that it would have on costs
17 of something that is already, you know, a big
18 problem in New York State.
19 DR. LITVACK: Yes. So thank you for
20 asking those questions.
21 Yes, this is a huge problem if it goes
22 through as proposed. This really would
23 affect our community physicians, those in
24 independent practice, those that are not in
608
1 self-funded employer plans. And these
2 practices are running on very thin margins as
3 we speak right now. They have had to deal
4 with the increased cost of the personal
5 protective equipment. They've had to deal
6 with the decreased number of patients,
7 decreased numbers of procedures, and in
8 addition to having had their offices closed
9 for periods of time.
10 This, as I said, would add thousands
11 and sometimes tens of thousands, depending on
12 which part of the state you're in and, you
13 know, which specialty you're in.
14 ASSEMBLYMAN RA: Well, thank you --
15 sorry, go ahead.
16 DR. LITVACK: That's okay. And
17 premiums right now are still way too high.
18 We have the numbers; we can share those with
19 you from MLMIC and others. But our costs,
20 you know, far exceed any other state in the
21 country.
22 ASSEMBLYMAN RA: And as you point out,
23 if last year was a bad time to adopt this
24 proposal, then this year is a really bad time
609
1 to adopt this proposal. So thank you.
2 CHAIRWOMAN KRUEGER: Thank you.
3 Any other members wanting to ask
4 questions?
5 CHAIRWOMAN WEINSTEIN: Yes, we
6 actually have Assemblyman Byrne also, and
7 then Assemblyman Palmesano.
8 Assemblyman Byrne.
9 ASSEMBLYMAN BYRNE: Yes, thank you,
10 Chair.
11 And ditto to the comments made by my
12 colleague Mr. Ra. I completely agree that if
13 it was bad last year, it's even worse now.
14 And we're hopefully getting a lot of federal
15 relief, which will make a lot of these
16 decisions a little bit easier for us.
17 My follow-up question was -- I tried
18 to mention it with the commissioner, but
19 quite frankly we don't have enough time when
20 we're trying to go through these budget
21 hearings. And it's about Part Q in I believe
22 the Health and Mental Hygiene Budget. And
23 this is directed more for Bonnie,
24 Dr. Litvack.
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1 It's the section that would allow the
2 commissioner to report professional
3 misconduct, allegations of misconduct, and
4 without due process. Now, we've already
5 passed legislation I think in recent years
6 about people have to -- physicians have to
7 post a notice now, which some people didn't
8 like, about the Office of Professional
9 Misconduct {sic}. But now we're -- this is
10 really a step much further where they're
11 looking to have the commissioner release this
12 information. My understanding is if there's
13 an imminent danger, if there's something like
14 that, they already have that option. But if
15 you start distributing information about a
16 physician -- like I have a real concern that
17 this could ruin someone's career when it's an
18 allegation and they haven't had their due
19 process yet.
20 Can you elaborate on this a little
21 bit? It seems to be a perennial issue. At
22 least I think it was brought up last year,
23 and we're going at it again this year. And
24 hopefully we can get it taken out. But I was
611
1 just hoping you could elaborate on that
2 again.
3 DR. LITVACK: Sure, I'm happy to.
4 So this issue is exactly as you've
5 described. The Medical Society is absolutely
6 committed to the safety of the public. And
7 the commissioner already does have the
8 authority to remove somebody -- their ability
9 to practice right now. This goes beyond that
10 and allows them to remove somebody before
11 they've had any due process.
12 And when you look at our system, our
13 OPMC, the Office of Professional Medical
14 Conduct, system for adjudicating these
15 issues, of the claims, 97 to 98 percent of
16 them are dismissed without any charges being
17 filed and without any action being taken.
18 And with that being the case, this would do a
19 tremendous amount of harm if these were made
20 public before the physician actually had an
21 ability to defend themselves against this.
22 And so this would be a very harmful
23 thing that would eliminate due process for
24 physicians.
612
1 ASSEMBLYMAN BYRNE: Thank you, Doctor.
2 And I think we all know that once
3 something's on the internet, it's on the
4 internet forever, so it's very hard to repair
5 the damage once it's been done.
6 And again, I would say in a similar
7 vein to what we said before, if it was a bad
8 idea last year, I think it's a bad idea this
9 year. We're asking our physicians and
10 healthcare workers to do so much. I don't
11 think this would be an appropriate change.
12 But thank you.
13 DR. LITVACK: And thank you for
14 rejecting it last year, and hopefully you'll
15 reject it again this year.
16 CHAIRWOMAN WEINSTEIN: Assemblyman
17 Palmesano.
18 ASSEMBLYMAN PALMESANO: Yes, thank you
19 very much.
20 My question is for Sarah.
21 Sarah, there's been much discussion
22 during these hearings around the state's
23 proposal in the budget to eliminate the
24 $139 million of the state's share for the
613
1 Indigent Care Pool. You know, myself and a
2 number of my colleagues always worry about,
3 when we see things like that, about cost
4 shifts, possible mandates or unfunded
5 mandates to our county governments.
6 I know it was discussed, I think with
7 some of the comments that were made, that
8 Westchester doesn't participate. Do you know
9 what counties are contributing or not
10 contributing, and if so, how much? I mean,
11 right now obviously counties are forced to
12 contribute to the distressed fund, I think
13 it -- I can't remember the amount of it, of
14 $250 million.
15 You know, do we know how much our
16 counties are participating right now, or not
17 participating, and to what amount? I mean,
18 obviously our counties are struggling
19 financially right now. You know, this
20 mandate, if they had to pick up more or do
21 contribute more, it would be certainly
22 difficult for them to handle. And certainly
23 that would have an overall impact on our
24 delivery of our healthcare system and quality
614
1 care.
2 So do you have any thoughts on that or
3 comments on that proposal and how to -- what
4 you know?
5 MS. RAVENHALL: Thank you for that
6 question. I don't have those numbers off the
7 top of my head. I can circle back and work
8 on getting those for you, and perhaps work
9 with the Association of Counties to find some
10 of that data for you.
11 But you're bringing up a really good
12 point. We're seeing continual shifts from
13 state funding to, you know, locality funding,
14 picking up the share of certain services.
15 One of the services that we're looking
16 at is rabies funding, which was completely
17 eliminated from the proposed Executive
18 Budget. This is a public health issue, and
19 it's essentially being eliminated from the
20 budget. Anybody who is exposed to rabies
21 needs -- there needs to be a public health
22 intervention. And so we're really concerned
23 about seeing some of these cost shifts to
24 localities when they are struggling so much.
615
1 So I appreciate that thought, and I
2 can get back with you.
3 ASSEMBLYMAN PALMESANO: I note that in
4 last year's budget, and I think this year's
5 budget again has -- I think it's
6 $250 million. I think it's 200 million for
7 the city and $50 million for the other
8 counties for distressed hospitals.
9 And that's an assessment that's coming
10 off the county's books already right now.
11 MS. RAVENHALL: Right.
12 ASSEMBLYMAN PALMESANO: That's another
13 thing that we're all worried about.
14 So thank you very much. And thanks
15 for what you do.
16 MS. RAVENHALL: Thank you. You too.
17 CHAIRWOMAN KRUEGER: So, Helene, I
18 just have more a recommendation to
19 Dr. Litvack, who's the doctor from the
20 Medical Society of New York, that I'm going
21 to ask you to please read the City and State
22 article that came out yesterday, "New York
23 Doctors Get Away With Sexual Misconduct."
24 And it's a fairly scathing report on
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1 the Office of Professional -- whatever the
2 office stands for within the Department of
3 Education, and how they don't ever find
4 anyone guilty of anything. And it's an
5 exposé with a bunch of previous workers
6 coming forward to say that.
7 Now, I actually have a bill on making
8 it more restrictive --
9 (Zoom interruption.)
10 CHAIRWOMAN KRUEGER: I'm sorry?
11 Someone else is talking.
12 -- that you really need to look into
13 making sure that this office is functioning
14 correctly. Because I know it's a very small
15 number of doctors who are both unqualified to
16 be performing medicine or otherwise very bad
17 people. But when we don't have a system in
18 place that people have confidence in that
19 they will actually penalize the people who
20 should be prevented from continuing to
21 provide medicine or who should be stopped
22 from doing bad behaviors, it makes us all
23 look terrible.
24 And so that is why I have the bill,
617
1 because it turns out tracking doctors with --
2 who are being found guilty in court of sexual
3 assault and still letting them continue their
4 work in their private offices or even in
5 hospitals in New York State, and then years
6 later, Oh, look, we caught them again. Oh,
7 look, we've caught them again. That's not
8 okay.
9 So I don't know that I agree with what
10 the Governor is proposing in his budget this
11 year, but I'm telling you -- I'm urging you,
12 as the medical community, get behind
13 reasonable standards for investigations and
14 make sure they're taken seriously, because
15 these hurt -- when these stories come out,
16 they hurt you. And 99 percent of you would
17 never be involved in these things, but if
18 you're supposedly part of a peer review
19 system and you never catch any of your peers
20 except the behaviors are going on, it's a
21 serious problem.
22 So that's my recommendation to you.
23 With that, anyone else? Okay. Then
24 we're going to move on to the next panel.
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1 Thank you all very much for being here with
2 us tonight and testifying.
3 And our next panel is Health People,
4 Chris Norwood; Community Healthcare
5 Association of New York State, Rose Duhan;
6 and Callen-Lorde Community Health Center,
7 Wendy Stark.
8 Good evening, everyone or anyone. And
9 let's start with Chris Norwood, if you're
10 here. Is Chris here? I don't think so.
11 Okay, how about Rose. Rose, are you
12 here?
13 MS. DUHAN: I am here, thank you.
14 CHAIRWOMAN KRUEGER: Let's start with
15 you, thank you.
16 MS. DUHAN: Thank you to the chairs
17 and the members who have persevered for
18 hanging through this late night session. I
19 appreciate all of your dedication.
20 I'm Rose Duhan, CEO of the Community
21 Healthcare Association of New York State. On
22 behalf of New York State's 70 community
23 health centers, caring for 2.3 million
24 New Yorkers, I'm here to express our grave
619
1 concerns about the pharmacy benefit carve-out
2 from Medicaid managed care to
3 fee-for-service, which will eliminate access
4 to the 340B program.
5 The 340B program allows covered
6 safety-net healthcare providers, including
7 community health centers, to purchase
8 pharmaceutical drugs at reduced costs.
9 Community health centers reinvest the savings
10 into initiatives that expand access to care,
11 particularly for the uninsured and
12 underinsured.
13 New York's community health centers
14 provide care to about one-third of all
15 uninsured individuals in New York State.
16 340B enables patients to receive free or
17 low-cost drugs and support services such as
18 intensive outreach to those who have been
19 isolated during the pandemic, including
20 follow-up needed for chronic disease
21 management and ensuring children do not fall
22 behind in immunizations.
23 340B savings have made it possible for
24 health centers to quickly pivot to
620
1 vaccination activities, outreach and patient
2 education, making sure people come back for
3 second doses, and standing up vaccination
4 events for communities of color and in rural
5 parts of the state.
6 Health centers are grateful to have
7 received vaccine allocations, and 340B makes
8 it possible to vaccinate communities most at
9 risk from COVID-19.
10 The proposed change will result in
11 enormous financial losses, programmatic
12 reductions, and staff cuts for impacted
13 providers. Perhaps what is most devastating
14 is that the carve-out will have the biggest
15 negative impact on the health outcomes of the
16 state's sickest and poorest communities, the
17 very patients hit hardest by COVID-19.
18 Community health centers are testing
19 and vaccinating patients in their communities
20 and are able to do so because of 340B. This
21 carve-out will have devastating and lasting
22 effects on the healthcare safety net at a
23 time when Black, brown and poor community
24 members and their providers can least afford
621
1 it.
2 In the recent economic crisis we have
3 seen growth in Medicaid enrollment and in
4 uninsured populations that benefit from the
5 services made possible by this program. The
6 Executive has proposed creating a funding
7 pool of $102 million. This proposed funding
8 is woefully inadequate given the massive
9 losses the carve-out would cause, and
10 unreliable as a long-term solution for
11 sustainability, as any pool created by the
12 state is subject to future budget cuts and
13 delayed distributions for purposes of state
14 cash management.
15 We have learned today that DOH is
16 moving forward with notifying Medicaid
17 participants that the carve-out will take
18 effect May 1st, undermining your ability to
19 negotiate a solution. It is unacceptable
20 that New York would move forward with this
21 carve-out during the most significant public
22 health crisis in modern history. We urge the
23 Legislature to reverse this policy.
24 Thank you. I'm happy to take any
622
1 questions and give you back 25 seconds.
2 CHAIRWOMAN KRUEGER: Thank you very
3 much.
4 And do we have Wendy Stark, from
5 Callen-Lorde?
6 MS. STARK: Yes, I'm here. Thank you
7 so much.
8 Thank you so much to the chairs and
9 the members of the committee and for doing
10 this all-day marathon. We really appreciate
11 it.
12 So Callen-Lorde Community Health
13 Center is one of the 70 community health
14 centers Rose just spoke about. We are in
15 Manhattan, the Bronx, and Brooklyn. But I
16 can almost guarantee you that we serve
17 somebody in your district, because we have
18 patients coming to us from all over the state
19 because we are what's called a magnet health
20 center. We have a particular mission, to
21 serve LGBTQ communities and people living
22 with HIV, and so we draw people that are much
23 more geographically diverse than some of our
24 colleagues.
623
1 I don't know how else to say this,
2 other than I am begging you -- Senator Brouk
3 said earlier today in the hearing that she
4 got a message from a CEO of an organization
5 in her district who would be impacted also by
6 the Medicaid pharmacy carve-out in ways that
7 are existentially threatening. And I'm here
8 tonight to tell you this is not being
9 hyperbolic, this is going to destroy the
10 safety net at the worst possible time in
11 history, right at this moment.
12 We serve people who are -- one-third
13 of our patients are uninsured. One-quarter
14 of our patients are people living with HIV.
15 One-third of our patients are people of
16 transgender or nonbinary experience. Over
17 half of our patients are people of color.
18 Many of our patients live at or below the
19 poverty line. This is not the time to hurt
20 our state's safety net.
21 We have been providing primary care
22 throughout. We provided medical staffing in
23 a hotel for folks who would otherwise be
24 living in the New York City shelter system
624
1 who had COVID, near the beginning of the
2 pandemic. Our staff are exhausted. Many of
3 those staff's salaries, our nurses, our
4 front-line folks, our lab techs, our doctors,
5 our PAs, our nurse practitioners, they have
6 been at this with little to no time off since
7 March. Their salaries, many of them, are
8 paid through the revenues that come out of
9 this program. This was an intentional way to
10 support the safety net.
11 And there is a 340B reinvestment fund
12 that's been proposed, as Rose mentioned,
13 which is meant to help offset the revenue
14 losses that this would cause. I would argue
15 that this is a micro version of the global
16 cap. And we ask you to reject it, as well as
17 the carve-out overall, and of course reject
18 the global cap. It is foundationally the
19 wrong approach to our state's Medicaid
20 program.
21 There is a delay bill on the table
22 from Assemblymember Gottfried and
23 Senator Rivera -- it is A1671A and S2520 --
24 to have the community health centers and HIV
625
1 special needs plans, have the carve-out piece
2 delayed until April of 2024.
3 There are other solutions to this. We
4 can find a solution to the PBM transparency
5 issue. We are on the same side about this.
6 This is not the way to do it.
7 Thank you so much for your time and
8 attention.
9 (Pause.)
10 SENATOR RIVERA: You're on mute, Liz.
11 You're on mute.
12 CHAIRWOMAN KRUEGER: I'm sorry. I was
13 saying, except no one could hear me, that I
14 believe Chris Norwood has now joined us.
15 MS. NORWOOD: Yes. Oops --
16 CHAIRWOMAN KRUEGER: You ready?
17 MS. NORWOOD: Thank you very much. I
18 am Chris Norwood, executive director of
19 Health People, which is entirely a peer-led
20 health education and disease prevention
21 organization in the South Bronx.
22 There's a major reason New York State
23 had the most COVID deaths in the nation. It
24 is because the New York State Department of
626
1 Health absolutely refuses to have any
2 coherent plan to either prevent chronic
3 disease or help people who have chronic
4 disease achieve the good self-management that
5 still protects their health and does not
6 leave them this vulnerable to any virus or
7 variant that comes along.
8 I will start with diabetes. In the
9 first surge of COVID in the spring of 2020,
10 diabetes deaths in New York City increased by
11 a staggering 356 percent, the most in the
12 nation, and state diabetes deaths outside
13 New York City increased the most of any
14 state.
15 International studies, however, soon
16 made clear that these deaths, along with
17 serious complications like heart, lung and
18 kidney injury, were mainly occurring in
19 people with diabetes whose blood sugar was in
20 poor control.
21 At the time, my organization,
22 Health People, was providing the only
23 community diabetes self-management program in
24 the South Bronx, teaching thousands of people
627
1 with diabetes how to lower their blood sugar
2 and achieve good control. The state
3 completely destroyed and defunded this vital
4 community self-care initiative just as it
5 become clear that blood sugar control was
6 vital to survival during COVID.
7 New York has 2 million people with
8 diabetes, some 600,000 on Medicaid. To this
9 day, despite what should be the lesson of
10 unprecedented diabetes deaths, the State
11 Department of Health still refuses to support
12 a single self-care community-based initiative
13 for diabetes or, for that matter, for any
14 other chronic disease anywhere in New York
15 State.
16 The Diabetes Self-management Program
17 we were providing, which I believe other
18 people try and work with, is well-proven to
19 reduce blood sugar, weight, depression and
20 multiple diabetes complications. It slashes
21 new cases of kidney disease by 90 percent the
22 first year after people participate, which
23 means it also slashes the number of
24 New Yorkers who will be chained to dialysis.
628
1 Most important, communities themselves
2 can take the lead in this kind of life-saving
3 education. We entirely trained people from
4 the South Bronx with diabetes and
5 pre-diabetes to deliver this.
6 I really urge the Legislature --
7 you've heard over and over how things that
8 prevent and save money are the first to go.
9 It is so senseless. And hopefully you will
10 look at these life-saving programs and
11 assure, with any money that comes from
12 Washington, it will be used to truly build
13 health, and that at least 250 million will be
14 devoted to community-led chronic disease
15 prevention and self-care programs across the
16 state.
17 CHAIRWOMAN KRUEGER: Thank you.
18 MS. NORWOOD: Thank you very much.
19 CHAIRWOMAN KRUEGER: Thank you all
20 very much.
21 All right, do I see any hands up?
22 Gustavo Rivera, Health chair.
23 SENATOR RIVERA: It will be brief.
24 Thank you. Thank you, Madam Chair.
629
1 Thank you all for being here. Thank
2 you for remaining here, particularly because
3 it is so important what you're bringing to
4 the table. You represent folks all across
5 the state that -- I want to talk particularly
6 about the 340B program. We talked about the
7 delay bill that I encourage my colleagues to
8 get on. And we certainly need to push back
9 on the Governor in a real way about this.
10 I want you to specifically make the
11 connection about how the flexibility of this
12 program has allowed different -- whether it's
13 you, Wendy, at Callen-Lorde, or any of your
14 members at CHCANYS -- talk about the
15 flexibility of this program and the fact that
16 the savings that are utilized to actually
17 invest in care for the people that you serve,
18 and how the proposal from the Governor --
19 compare the two, whether you think that one
20 would be -- that this program that -- the
21 proposed, you know, 100 million, 102 million
22 from the Governor would compare to what you
23 get now from the federal program, as far as
24 flexibility.
630
1 MS. STARK: It's hard to say the math.
2 Callen-Lorde alone stands to lose $12 million
3 a year from this change, and I don't --
4 SENATOR RIVERA: So what's your
5 total -- what's your total --
6 MS. STARK: Ninety-five million.
7 SENATOR RIVERA: So it's a chunk, a
8 chunk.
9 MS. STARK: Yeah, it's a big chunk.
10 So right now I use this money to pay
11 for nurses, for example, who provide nursing
12 triage to patients who are calling and saying
13 "Should I go to the emergency room? I'm
14 having this symptom." We are keeping people
15 literally out of the emergency rooms by
16 paying for these nurses, as one example.
17 Right?
18 We have case managers who are helping
19 people with housing support, all kinds of
20 things.
21 And so, again, I do the analogy to the
22 global cap. If we have a certain amount of
23 money every year that stays stagnant and that
24 we have to fight for it every year, we cannot
631
1 be as flexible or do planning around it. How
2 can you hire staff based on a pool of funding
3 that changes year over year and that shrinks
4 year over year, and how --
5 SENATOR RIVERA: Or that might not
6 exist. Or that might not exist next year.
7 MS. STARK: Exactly. Exactly.
8 HIV. We have done so well in this
9 state around getting the number of new
10 infections down and getting people virally
11 suppressed. So many of our patients are
12 people living with HIV. We put all kinds of
13 support services around that with this money.
14 These are why these numbers are good. The
15 whole HIV services system in this state is
16 going to have a really drastic change to our
17 revenues if this happens.
18 SENATOR RIVERA: CHCANYS?
19 MS. DUHAN: Yeah, and I would say that
20 this pandemic has really demonstrated the
21 necessity for the flexibility of these funds.
22 We -- you know, health centers were
23 told on the Thursday before Christmas that
24 they would be receiving hundreds of doses of
632
1 the vaccine on Monday, and health centers
2 were able to get staff ready, they were able
3 to schedule vaccine, they were able to put
4 extra people on the phones because they were
5 all of a sudden flooded with calls from the
6 community: "Can I get the vaccine?"
7 They have to do scheduling, they have
8 to have people who can be there to be there
9 at the vaccination events. So this is really
10 something where health centers -- there was
11 no extra funding that was coming in to make
12 it possible to turn around and stand up these
13 events where -- in the communities where we
14 know people have been most adversely impacted
15 by the pandemic.
16 So it's really --
17 SENATOR RIVERA: Senate and
18 Assemblymembers that are still on, get on our
19 bill, get on Dick's bill, get on my bill so
20 we can make sure that we stop this, please.
21 Thank you, Madam Chair.
22 CHAIRWOMAN KRUEGER: Thank you.
23 Any Assemblymembers, Helene?
24 CHAIRWOMAN WEINSTEIN: No, we are
633
1 ready to move on.
2 Thank you for being here.
3 CHAIRWOMAN KRUEGER: All right, thank
4 you all very much for coming. We're covered
5 very broadly during the earlier parts of the
6 hearing. So thank you very much.
7 Next up, Panel F. And I've learned
8 some people were working off an older version
9 of the testimony list, so sorry, but now
10 we're on Panel F for the correct version.
11 Empire Center for Public Policy, Bill
12 Hammond; Consumer Reports, Chuck Bell;
13 New York State Area Health Education System,
14 Leishia Smallwood; and Center for Health
15 Outcomes and Policy Research at the
16 University of Pennsylvania, Linda Aiken.
17 Are you with us, Bill? Okay. Good
18 evening. You get to start.
19 I can't hear you; turn your mic on.
20 MR. HAMMOND: All right.
21 Good evening. Thanks for the
22 opportunity to testify.
23 This year has taught us a painful
24 lesson about the importance of public health
634
1 infrastructure. The places in the world that
2 had the strongest infrastructure were able to
3 respond quickly and effectively to the
4 pandemic, and they kept their loss of life
5 and economic disruption to a minimum.
6 Unfortunately, the United States and New York
7 were not among those places.
8 Public health is one part of
9 New York's health system that has suffered
10 reductions in funding unlike any other. I
11 will give you an example. The Wadsworth
12 Center, our world-renowned public health
13 laboratory, over the past 10 years it has
14 lost 40 percent of its publicly reported
15 funding and about two-thirds of its staff.
16 Now -- and other functions in the
17 Health Department have seen similar dramatic
18 reductions. There's a caveat, is that we
19 have something called the Health Research,
20 Incorporated. It's a kind of off-the-books
21 part of the Health Department, and there are
22 often jobs and money that's kind of stashed
23 there. I would argue that the
24 Health Department, if it wants a really full
635
1 view of the public health system, it needs
2 transparency into HRI.
3 With respect to Medicaid, the picture
4 actually is quite different. This is a
5 program that's been growing rapidly. This
6 year alone, its overall funding is projected
7 to be up $4 billion, or 5 percent. That's
8 about twice the rate of inflation.
9 The structural imbalance in that
10 program that existed before the pandemic is
11 still there, it hasn't really been fully
12 addressed, and we are sustaining this
13 unsustainable funding with temporary federal
14 aid. And when that temporary federal aid
15 goes away, as it inevitably will, we're going
16 to have a hole that's that much bigger to
17 fill and that much more painful to deal with.
18 With respect to nursing homes, until
19 just a couple of weeks ago, on February 10th,
20 when the court ordered the Health Department
21 to turn over the data, it was really
22 impossible for people outside the Health
23 Department to do any kind of in-depth
24 analysis of policies around nursing homes,
636
1 including the March 25th guidance.
2 Using the data that the Empire Center
3 obtained, we were able to find a
4 statistically significant correlation between
5 the admissions of coronavirus-positive
6 patients into nursing homes and higher death
7 rates in those nursing homes. It's on the
8 order of several hundred additional deaths.
9 So it doesn't explain the entire situation in
10 nursing homes, but it was a contributing
11 factor.
12 And this is one small part of what
13 should be a larger in-depth investigation
14 into the pandemic, so that we can figure out
15 what went wrong and prepare ourselves so that
16 it never happens again.
17 Thank you for listening.
18 CHAIRWOMAN KRUEGER: Thank you very
19 much.
20 And next is Charles Bell, program
21 director, Consumer Reports.
22 MR. BELL: Madam Chairs Krueger and
23 Weinstein, Chairs Gottfried and Rivera,
24 Breslin and Cahill, members of the committee,
637
1 thank you for your stamina and perseverance
2 and indefatigable commitment to healthcare
3 democracy.
4 So Consumer Reports enthusiastically
5 joins with Health Care for All New York,
6 who's coming behind me on Panel G, to urge
7 the Assembly and Senate to please adopt the
8 language in the Patient Medical Debt
9 Protection Act in both one-house bills.
10 This act would provide common-sense
11 protections to protect patients against
12 medical debt and unfair billing practices, to
13 lessen the interest rate for medical debts,
14 and to avoid surprise billing. So we urge
15 that adoption.
16 Number two, the COVID-19 pandemic has
17 brought home to all of us how a previously
18 unknown disease can wreak havoc, not just on
19 our lives in New York but worldwide. And so
20 a key lesson of that is that we need to
21 prioritize public measures for emerging
22 threats and exercise strategic foresight.
23 So in New York State we believe -- and
24 many of our coalition partners, such as
638
1 NYPIRG and Center for Food Safety -- that we
2 should work together to protect the continued
3 effectiveness of medically important
4 antibiotics like tetracycline and ampicillin
5 by clamping down on their routine overuse and
6 inappropriate use in both healthcare settings
7 and farming.
8 And it's an astonishing fact that
9 two-thirds of the medically important
10 antibiotics that we rely on in the
11 United States are given not to people, but
12 administered to food animals -- not because
13 the food animals are sick, but to prevent
14 them from becoming sick because they're
15 living in overcrowded and unsanitary
16 conditions.
17 So in 2018 the New York State
18 Department of Health worked on this report
19 (showing), the Stop Antibiotic Resistance
20 Roadmap plan, which was a great first step.
21 And from that report we have learned that
22 58 percent of 175 hospitals said they had an
23 antibiotic stewardship program, which is very
24 important, and we commend them. But that
639
1 also means that 73 hospitals did not, and so
2 that needs follow-up.
3 And the plan also acknowledged that
4 agricultural overuse is a significant issue
5 in New York State, but they did not put into
6 place restrictive measures, a binding plan or
7 a timetable to get it under control.
8 So for that reason, we urge you to
9 incorporate into the state budget language
10 the Combating Antimicrobial Resistance Act,
11 sponsored by Assemblymember Linda Rosenthal
12 and Senator Kavanagh, which would prohibit
13 the use of medically important antibiotics in
14 food-producing animals for the routine
15 purposes of disease prevention.
16 We need New York State, as part of its
17 budgetary activities and its operating
18 practices, to implement a Stop Antibiotic
19 Roadmap that actually solves the problem for
20 both healthcare settings and for farming, and
21 prevents the next pandemic. Fully 24 percent
22 of our infections comes from the food that we
23 eat and our farm animals. So we have to
24 treat both sides of the equation.
640
1 Antibiotics are life-saving drugs.
2 It's our civic and public health obligation
3 to protect them. Thank you very much.
4 CHAIRWOMAN KRUEGER: Thank you very
5 much.
6 Next we have Leishia Smallwood,
7 New York State Area Health Education System.
8 MS. SMALLWOOD: Thank you, Madam
9 Chairs Krueger and Weinstein, Senator Rivera,
10 and the joint committee for hearing my
11 testimony tonight.
12 Founded in 1998, New York State AHEC
13 System is a health workforce training
14 initiative federally funded to provide
15 education, training, and community services
16 to each and every county throughout New York
17 State. Our network aims to address the
18 health disparities in medically underserved
19 areas and increase diversity in the
20 healthcare workforce throughout New York
21 State.
22 We know the importance of having
23 healthcare professionals be representative of
24 the population they serve, especially in
641
1 medically disadvantaged areas. We support
2 this objective by recruiting health
3 professions students from diverse
4 backgrounds, with emphasis on minorities, to
5 expand their formalized training through
6 exposure to the health issues in the
7 underserved communities, to attract their
8 interest in working in these communities
9 after graduation.
10 We believe in the "grow our own" model
11 and providing health career exposure pipeline
12 services for youth, putting them in hospital
13 and clinical settings to cultivate their
14 interest in the various health professions.
15 We provide clinical rotations and
16 internships for future providers in both
17 urban and rural settings to better understand
18 those patient populations.
19 We connect health professions graduate
20 students to medically underserved vacancies
21 in the communities and promote debt reduction
22 incentive programs for MUC practice.
23 We provide continuing education
24 workshops and trainings for our current
642
1 healthcare providers on critical topics in
2 the healthcare industry.
3 We facilitate opioid prevention and
4 education programs for high schools,
5 colleges, and the community. We coordinate
6 MAT trainings, facilitate Narcan trainings
7 for both high school and college students.
8 We support maternal health through our
9 Doula Project to provide education and
10 support services to women, especially
11 minorities, to help reduce and prevent
12 childhood births and deaths.
13 We support mental health as a partner
14 with Project TEACH, funded through the Office
15 of Mental Health to promote education,
16 services and trainings provided to PCPs
17 across the state in the rapid mental health
18 diagnosis and treatment for children and
19 adolescents.
20 During this pandemic we provide COVID
21 workshop series to current health professions
22 students entering the workforce, to educate
23 them on topics like trauma-informed care and
24 the effects of COVID-19, and proper PPE
643
1 utilization.
2 We do community education, going door
3 to door in neighborhoods with high infection
4 rates, handing out CDC guidelines for COVID
5 safety.
6 We have a focus on working with
7 organizations to track members to fill open
8 positions. As we know, it's going to be
9 exacerbated through this COVID, post-COVID.
10 We know there's going to be service gaps and
11 shortages. And we are looking to help be on
12 the frontline to replenish and be a crucial
13 provider to working with those organizations
14 to identify workers that we've lost in the
15 pandemic through sickness and fear.
16 This pandemic has provided many
17 challenges to our network which limit our
18 ability to work in an in-person environment
19 with our students and community partners.
20 AHEC adapted to this challenge and developed
21 a robust virtual platform to continue our
22 programming and services.
23 With our previous 20-year funding
24 history with the state, we are seeking a
644
1 restoration of $2.2 million in funding to
2 continue to support the work and services
3 that AHEC provides, but which many of our
4 educational partners and students come to
5 rely on greatly.
6 Thank you.
7 CHAIRWOMAN KRUEGER: Thank you very
8 much. And our last speaker is Linda Aiken,
9 professor and director, Center for Health
10 Outcomes and Policy Research, University of
11 Pennsylvania.
12 PROFESSOR AIKEN: Thank you so much.
13 I am Professor Linda Aiken from the
14 University of Pennsylvania Center for Health
15 Outcomes and Policy Research and the Leonard
16 Davis Institute of Health Economics.
17 My remarks today are a brief summary
18 of findings from our independent study
19 related to pending legislation, the
20 Safe Staffing for Quality Care Act, with
21 regard to hospital staffing. More details
22 are available in three peer-reviewed
23 scientific publications in prominent medical
24 journals.
645
1 In January and February of 2020, right
2 before COVID, we conducted original research
3 on nurse staffing, surveying nurses from
4 116 acute-care general hospitals in New York
5 State. We linked these findings on staffing
6 levels to the clinical outcomes of
7 418,000 Medicare patients treated in these
8 same hospitals.
9 Is hospital nurse staffing in the
10 state a problem that should be addressed?
11 And we conclude yes. We found that
12 patient-to-nurse staffing ratios in adult
13 medical and surgical units varied widely and
14 unjustifiably across hospitals, from
15 hospitals where nurses took care of four
16 patients each to hospitals where nurses took
17 care of almost 11 patients each. Remember,
18 this was before COVID and not counting ICU
19 staffing.
20 These greatly varying ratios have
21 preventable negative consequences for
22 New York State residents. Our findings show
23 that every one patient increase in
24 patient-to-nurse ratios is associated with a
646
1 13 percent increase in risk-adjusted hospital
2 death rates, and similarly in significant
3 increases in length of stay and readmissions.
4 So is the proposed legislation likely
5 to improve patient outcomes and resource
6 efficiency in New York State hospitals? And
7 we conclude yes. We estimated that were all
8 New York State hospitals staffed at the
9 4:1 ratio proposed in the pending
10 legislation, more than 4,370 deaths would
11 have been avoided just among elderly Medicare
12 patients. Many more deaths would have been
13 avoided if all patients were counted.
14 Savings of a minimum of $720 million
15 would have been achieved because of avoided
16 days of hospital care, and those savings
17 could be reinvested in employing more nurses.
18 So in summary, the immense variation
19 in patient-to-nurse ratios across hospitals
20 in New York State results in significant
21 numbers of avoidable deaths and unnecessary
22 expenditures. Our study shows that setting
23 reasonable minimum standards for safe
24 hospital nurse staffing statewide is feasible
647
1 and in the public's interest.
2 Thank you.
3 CHAIRWOMAN KRUEGER: Thank you very
4 much.
5 Any questions from my colleagues?
6 CHAIRWOMAN WEINSTEIN: Assemblyman Ra
7 has a question.
8 CHAIRWOMAN KRUEGER: Certainly.
9 SENATOR RIVERA: Ra first, that's
10 fine. Ra can go first, I can go second.
11 CHAIRWOMAN WEINSTEIN: Oh. Okay.
12 ASSEMBLYMAN RA: Thank you, Chair.
13 Good evening. I just had a quick
14 question for Mr. Hammond.
15 You're a popular guy today. There was
16 a question to the extent people knew you and
17 everything else, but I'm sure you heard
18 earlier, either directly or indirectly, that
19 Commissioner Zucker spoke about -- basically,
20 I mean, he stated in almost certain terms
21 that he believed there was zero additional
22 deaths as a result of the March 25th order.
23 He left open the possibility that maybe there
24 could be one, because he didn't want to say,
648
1 you know, never. But he said there wasn't
2 any.
3 So I was just wondering if you had any
4 thoughts on those statements.
5 MR. HAMMOND: I mean, I guess I would
6 wonder what his basis is for saying that.
7 His department published a report in
8 July which made the case that it wasn't
9 responsible for all of the deaths and it
10 wasn't responsible for the peak of deaths,
11 but it didn't actually address the question
12 of whether it was a contributing factor.
13 I mean, the kind of analysis that my
14 colleague Ian Kingsbury and I did was kind of
15 an obvious way of getting at that question.
16 And it didn't appear like the
17 Health Department had done that kind of
18 analysis. They have much better data than we
19 do, and so if they did, it would probably be
20 a more accurate assessment.
21 And so either they did the analysis
22 and didn't like the results or they didn't do
23 it at all. And so I don't think you can -- I
24 don't know what the basis is for his
649
1 statement about that.
2 ASSEMBLYMAN RA: And, I mean, I would
3 agree. And certainly, as you've said, you
4 know, not having the underlying data to
5 utilize until recently made it hard for
6 anybody to do any independent look at this.
7 So I do -- I'd be remiss if I didn't
8 thank you and the Empire Center for your
9 persistence in obtaining that data, because
10 despite the commissioner's representations
11 that it would have been provided for this
12 budget hearing, I don't believe for a second
13 we would have seen the information if they
14 weren't forced to do so by a court.
15 So thank you for that and for your
16 good work on the issue.
17 CHAIRWOMAN KRUEGER: Gustavo Rivera.
18 You're muted.
19 SENATOR RIVERA: Here we go. Yup, I
20 gotcha. Thank you so much, Madam Chair.
21 Mr. Bell, first of all, good evening.
22 And good evening to everybody else,
23 obviously. But I wanted for you to talk a
24 little bit more -- I'm very thankful of your
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1 plug for the Patient Medical Debt Protection
2 Act. And the -- the -- if you could talk a
3 little bit more about the concerns that you
4 have, based on your experience, your deep
5 knowledge about consumers and how consumers
6 are affected by medical debt.
7 And I will -- so if you could tell us
8 a little bit more about why you think it's so
9 important to pass it in the State of
10 New York. Because I know you mentioned it in
11 passing in the middle of all the other
12 things.
13 Go ahead.
14 MR. BELL: Oh, sure, sure.
15 So Community Service Society has done
16 an excellent job documenting some of the
17 actions, legal actions that have been carried
18 out against patients in New York State. But
19 essentially there have been over 50,000
20 lawsuits against patients for hospital-based
21 medical debts in the last five years in
22 New York State.
23 And we are just like super-concerned
24 that during a pandemic where it's hard for
651
1 people to keep well, people absolutely may
2 need medical care. And it's their right,
3 it's their absolute right to get it. We want
4 people to be able to get medical care in the
5 U.S. with full dignity and respect.
6 And so while we want to eliminate the
7 financial barriers on the front end, we don't
8 want the surprise financial gotchas on the
9 back end. And too often, you know, consumers
10 are basically running a maze.
11 And so within this bill, which we
12 worked on with your employee and our dear
13 friend in the Senate, Kristin Sinclair --
14 SENATOR RIVERA: Yes, you did.
15 MR. BELL: Yeah, who did a fantastic
16 job -- we put together several measures that
17 we think that really would improve the
18 patient experience of care and simplify
19 medical billing, which would also be probably
20 a boon for both our providers and our health
21 payers.
22 We don't want people to be leaving the
23 hospital with financial stress and other
24 psychological complications that come with
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1 that. And these -- one of the measures is to
2 say to hospitals, Could you please create a
3 simplified medical billing system so we can
4 get one bill for a hospital visit instead of
5 30 bills and 30 different explanation of
6 benefit forms.
7 There has to be a way in the
8 United States that we could simplify the
9 administration of billing. New York Health
10 absolutely is one way that we could do that.
11 I personally am like a huge --
12 SENATOR RIVERA: I look forward to
13 working with you on this. I only have
14 30 seconds --
15 (Overtalk.)
16 MR. BELL: We need to make it simpler
17 for the patients. And then also
18 standardizing the charity assistance is very
19 important --
20 SENATOR RIVERA: -- work with you to
21 pass it --
22 MR. BELL: There are other things in
23 there we need to get done.
24 SENATOR RIVERA: I need my last
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1 15 seconds to say, Bill --
2 MR. HAMMOND: Yes, sir?
3 SENATOR RIVERA: I don't know if this
4 is worth anything, sir, but I sure know who
5 you are.
6 (Laughter.)
7 SENATOR RIVERA: And I also -- I
8 also -- I will say this for the record, I
9 respect your work immensely. And just like
10 you were thanked before by Assemblymember Ra,
11 thank you so much for continuing to do the
12 work relentlessly on this to make sure that
13 we got to the truth. So --
14 MR. HAMMOND: Thank you, Senator.
15 CHAIRWOMAN KRUEGER: Thank you.
16 Any other Assemblymember?
17 CHAIRWOMAN WEINSTEIN: No, but I
18 believe you have another Senator.
19 CHAIRWOMAN KRUEGER: Well, we have me.
20 Who else do we have?
21 CHAIRWOMAN WEINSTEIN: I see Sue
22 Serino's hand raised.
23 CHAIRWOMAN KRUEGER: Oh, hello. I
24 didn't see you in the darkness, excuse me.
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1 Sue Serino, please go first.
2 SENATOR SERINO: Thank you,
3 Madam Chair.
4 And Bill and everybody, thank you so
5 many for all of your hard work. Greatly
6 appreciate it.
7 And Bill, you've been very clear
8 about -- over the last four months about the
9 need to use everything that we've learned
10 during this time to ensure the state is
11 better prepared to act in the future. You've
12 pointed out that that's actually the reason
13 that data is so important when we're talking
14 about these health issues, because that data
15 is what actually informs policies and makes
16 all the difference between sort of spinning
17 our wheels versus making effective changes.
18 So with that in mind, my question is
19 for everyone on this panel. Based on what
20 you know today, what can the state do
21 today -- starting with this budget, I
22 guess -- to be better prepared to act with
23 this current pandemic still raging, and in
24 the face of any future pandemic, maybe to be
655
1 better prepared for the current pandemic too?
2 We know the numbers are still concerning and
3 we're seeing the changing strands as well.
4 So that's open to everybody.
5 MR. HAMMOND: I would -- my first
6 recommendation would be to conduct an
7 investigation, make it as independent as
8 possible, make it as in-depth as possible.
9 And that way it would kind of start with a
10 lot more transparency about what happened.
11 I mean, we had to engage in a
12 months-long court battle to get one data set
13 out of what would probably be hundreds if not
14 thousands of data sets. So we would need the
15 cooperation from the Cuomo administration to
16 get to the bottom of things.
17 But you can't really -- I mean, my
18 testimony was about -- implied that we need
19 to invest in our public health
20 infrastructure. But we don't really know
21 what part of that infrastructure to invest in
22 until we have a better understanding of what
23 happened. It's very easy to get caught up in
24 narratives and theories about, you know, was
656
1 it Italian tourists or was it the subway
2 or -- you know, there are different theories
3 about why New York was hit so hard.
4 I think we really ought to try and
5 understand more definitively what the bottom
6 line was.
7 SENATOR SERINO: Thank you, Bill.
8 PROFESSOR AIKEN: I'll add there, if I
9 could, on the nurse staffing issue.
10 The title of one of our papers is
11 "Chronic Hospital Nurse Understaffing Meets
12 COVID-19." And this is exactly the situation
13 in New York State. And New York City has the
14 worst staffing in the state. And New York
15 City of course is a gateway city for all
16 kinds of communicable diseases coming in
17 through the three airports.
18 So it's already well known that
19 New York City and New York State has
20 substandard nurse staffing in their hospitals
21 compared to other states. This is an
22 example. Patients and hospitals in New York
23 get three hours fewer RN hours per day than
24 patients in California. This is a lot of
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1 nursing care.
2 So, you know, the evidence is clear.
3 If we want to be better prepared for a surge
4 in the future, we need to fix what's going on
5 in normal circumstances.
6 SENATOR SERINO: Yup, thank you. I
7 agree.
8 CHAIRWOMAN KRUEGER: Professor, I have
9 a follow-up for you.
10 First off, thank you for being here
11 tonight, because I think it does highlight
12 the value of actually doing research and
13 finding out what's happening.
14 So you just said California offers
15 three hours more of nursing per day than
16 New York City. Do they spend that much more
17 on healthcare than we do per person? My
18 understanding was they didn't.
19 PROFESSOR AIKEN: No, they don't. And
20 they have a mandate -- of course, everybody
21 probably knows California has a similar
22 mandate to what's being proposed in New York.
23 It was an unfunded mandate. The
24 hospitals were able to meet the mandate
658
1 without any closures, and the safety-net
2 hospitals in particular improved their
3 staffing dramatically. So it touched on all
4 of the things -- very positive results from
5 California.
6 CHAIRWOMAN KRUEGER: Thank you very
7 much for that.
8 CHAIRWOMAN WEINSTEIN: We have -- oh,
9 I'm sorry.
10 CHAIRWOMAN KRUEGER: Sorry. I was
11 just going to say: Bill, yes, thank you for
12 your work.
13 Sometime you're going to explain to me
14 why you agree with me completely on the
15 importance of expanding our public health
16 system but you basically have a problem with
17 Medicaid, which is ensuring that we have
18 funding for almost every New Yorker to
19 actually now have health insurance. So --
20 but not tonight, because we only have three
21 minutes. But we'll sit and we'll talk about
22 that.
23 And Chuck Bell, I swear, we kept
24 fixing the surprise bills. Didn't we get
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1 that bill done last year? Why does it
2 keep -- it's like a whack-a-mole, it keeps
3 coming back.
4 MR. BELL: Well, we have an
5 extremely --
6 CHAIRWOMAN KRUEGER: -- the Cahill
7 guy, yeah.
8 MR. BELL: Yeah. We have an extremely
9 complex system.
10 But the particular thing that the fix
11 that the Patient Medical Debt Protection Act
12 would make would be to clarify the issue that
13 when you get incorrect provider directory
14 information, that you relied on the
15 provider's assurance that he or she
16 participates in your healthcare network, or
17 you relied on the insurance company directory
18 and it turned out to be incorrect, that the
19 patient would be fully protected from
20 surprise billing in that circumstance.
21 And that is eminently fair. We're
22 asking consumers to do a lot of work to
23 consult those directories and go to
24 in-network providers, and then when they
660
1 follow all the rules, they should not be
2 penalized for doing that.
3 So it's very straightforward. I don't
4 think anyone really disagrees --
5 CHAIRWOMAN KRUEGER: Right.
6 MR. BELL: -- that the fix should be
7 made, except it becomes a clash between
8 different interest groups.
9 CHAIRWOMAN KRUEGER: Just like last
10 year's story. Okay, thank you very much.
11 Sorry, Helene, I kept cutting you off.
12 CHAIRWOMAN WEINSTEIN: I was just
13 going to say we have a number of
14 Assemblymembers, so we'll start first with
15 Kevin Cahill.
16 ASSEMBLYMAN CAHILL: I will be very
17 brief, thank you very much.
18 Senator Krueger, yes, there are still
19 a few little things we have to do to tinker
20 with the surprise billing law. But also
21 there's a significant amount that we have to
22 do with medical debt. And we're going to
23 both work on both of those things.
24 I will just take a few moments, not to
661
1 ask any questions but to thank each and every
2 one of you panelists, and remind you that
3 this is the just the beginning of the part
4 where we need you most. You are people who
5 analyze problems and then give us good,
6 substantive analysis that allows us to plan
7 for the future.
8 And we can't really always do that in
9 the middle of the crisis, but I honestly feel
10 that we are on the way out of this crisis,
11 and this is exactly the time where we have to
12 examine every aspect of it and try to make
13 sure we do it better so that the next time
14 things are not as bad as this time.
15 So I thank each and every one of you
16 for not only your testimony, but for your
17 good work along the way. And Bill Hammond,
18 you're my favorite guy to always disagree
19 with except for those occasional times when
20 we agree, so -- and this happens to be one of
21 them. Thank you.
22 CHAIRWOMAN WEINSTEIN: Thank you.
23 So Kevin Byrne?
24 ASSEMBLYMAN BYRNE: Chair, just a
662
1 quick question before we start. Everyone
2 gets what, one round, on these panelists,
3 right?
4 CHAIRWOMAN WEINSTEIN: Yes. Yes.
5 ASSEMBLYMAN BYRNE: Okay, thank you.
6 CHAIRWOMAN WEINSTEIN: Three minutes.
7 ASSEMBLYMAN BYRNE: Three minutes,
8 thank you.
9 So I'm going to just go to Bill
10 Hammond. And I have three questions, so I'll
11 try to be efficient with my time.
12 One, our state's Medicaid budget,
13 $82.9 billion -- that's the federal, state,
14 local share. It's going to extend the
15 Medicaid Global Cap. Is that still
16 effective, do you think, in controlling any
17 sort of costs in our state budget?
18 MR. HAMMOND: It's a lot less
19 effective, because it's been -- it's been
20 riddled with loopholes and exceptions. And
21 it's been kind of disregarded. The monthly
22 reports have stopped. The Governor's never
23 actually enforced it.
24 I think it would have been useful a
663
1 couple of years ago to contain the deficit
2 that was developing before it got too large.
3 ASSEMBLYMAN BYRNE: Understood.
4 I also want to thank you and the
5 Empire Center, Bill, for all your work this
6 past year on many issues. But I think it's
7 shocking that I could find more information
8 about nursing home data on the Empire
9 Center's website than the Department of
10 Health's website.
11 And it's alarming to me that the
12 Department of Health continues to conflate
13 total state numbers with nursing home
14 resident numbers. And to my knowledge, the
15 July report that's commonly referenced by the
16 Department of Health defending the March 25th
17 directive, in many cases they didn't use
18 statewide numbers. They used nursing home
19 resident numbers, just not those that died in
20 a hospital.
21 Would that be correct?
22 MR. HAMMOND: That's correct.
23 ASSEMBLYMAN BYRNE: So I think they
24 understand the difference and they just seem
664
1 to be spinning the story now.
2 A last question, since I think
3 everyone just gets one question, I get the
4 last word here. The New York so-called
5 Health Act was brought up a couple of times
6 and I have concerns about the lower
7 reimbursement rates; you know, when the
8 public sector costs the state increased
9 taxes, you know, the effects on quality care.
10 Do you have any -- you can use the
11 rest of my time to maybe, you know, offer
12 your opinions on what that would do and why
13 perhaps this is not the time to take on such
14 a costly program in New York.
15 MR. HAMMOND: Well, it would be
16 enormously expensive. It would require tax
17 increases beyond anything that's been
18 proposed even in the current Legislature.
19 But also I think it's kind of missing
20 the point. I mean, I know that there are
21 certain ways in which a single-payer system
22 might have helped during the crisis. But the
23 public health system is the part that would
24 have prevented the crisis, or would have
665
1 minimized the crisis.
2 The -- the public health system is the
3 one that would have made it unnecessary for
4 people to go to the hospital in the first
5 place, and would have made it unnecessary for
6 us to shut down visitation in nursing homes.
7 It's --
8 ASSEMBLYMAN BYRNE: A unified vaccine
9 distribution would probably make sense, but
10 not -- I don't think you need a single payer
11 for that. But I just wanted to chime in on
12 that point. I think that would have been
13 helpful too, to your point.
14 Thank you. That was -- I know Mr. --
15 that Chairman Rivera has had some very nice
16 words about you, and I just figured I'd drop
17 that in since he already asked his question.
18 Thank you.
19 (Laughter.)
20 CHAIRWOMAN WEINSTEIN: Okay. We go to
21 Assemblyman Jensen, who maybe has some nice
22 things to say about Bill Hammond.
23 ASSEMBLYMAN JENSEN: You know what? I
24 have nice -- I do have something to say,
666
1 Bill. Not a question. But I do notice that
2 you're the only panelist today, only witness
3 who has a bookcase without Bill Clinton's
4 My Life on it. So that is something I did
5 notice.
6 But my question is actually for
7 Professor Aiken. And forgive me, I haven't
8 read your -- UPenn's research on the safe
9 staffing bill, but I just want to ask you a
10 couple of quick questions about your
11 research.
12 So looking at -- reviewing your data,
13 so you mentioned that New York City sees the
14 most troublesome staffing levels. Is there
15 any merit, based on the numbers between
16 upstate and downstate, to maybe doing a
17 phased-in approach starting with New York
18 City and then moving towards the rest of the
19 state on that sort of model?
20 Secondarily, the question is did your
21 research look at -- to increase the staffing
22 numbers and the ratios, about the
23 availability of nurses, RNs, the rest of the
24 nursing care teams, and the availability of
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1 those staff members to reach those mandated
2 ratios in the hospitals in New York?
3 PROFESSOR AIKEN: Yes. Well, let
4 me -- thank you for those questions. Let me
5 take the last one first, on the issue of
6 whether New York has enough nurses.
7 And this is a common reason why states
8 consider staffing ratios but don't adopt
9 them. And there's a lot of misinformation
10 about the supply of nurses.
11 So New York State has substantially
12 more nurses per population than, for example,
13 California that has already passed such
14 legislation. So for example, in New York
15 State there are almost 19 nurses per
16 1,000 population. And in California, they
17 only have 11 nurses per 1,000 population. So
18 there are sufficient nurses in New York
19 State.
20 Moreover, there are 34 other states
21 that have adopted the nursing licensure
22 compact, which allows for multi-state
23 licensure. Now, New York State hasn't
24 adopted that and so the Governor had to, in
668
1 his emergency powers, waive that requirement
2 during the pandemic. That wouldn't be
3 necessary if New York State went along with
4 the other 34 states and passed that
5 legislation.
6 We are graduating now 170,000 new
7 nurses coming into the workforce every year
8 in our country. I know earlier today there
9 was some discussion about increasing the
10 supply. We really have quite a robust supply
11 of nurses in the U.S.
12 On the issue of the phase-in, I think
13 certainly New York City is of concern because
14 of the communicable disease threat posed by
15 the airports in New York City. But I don't
16 know that I think necessarily phasing it in
17 by region would be the way to go. I think
18 giving hospitals a period of time to get
19 ready for it and not pass it immediately on
20 them would be a better thing, but to pass it
21 statewide.
22 ASSEMBLYMAN JENSEN: Okay. I think
23 I -- I have more questions, but I've run out
24 of time. So thank you.
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1 CHAIRWOMAN WEINSTEIN: Thank you.
2 Senator Krueger, I think we're
3 finished with this panel.
4 CHAIRWOMAN KRUEGER: We are finished
5 with this panel. Thank you very much. I was
6 just looking at a memo that came in.
7 Thank you all for being with us and
8 for reminding us of the value of doing
9 research and real-life experience impacting
10 where we go next in New York State.
11 And the next panel will be made up of
12 Amanda Dunker, Health Care for All New York;
13 Elisabeth Benjamin, vice president of health
14 initiatives, Community Service Society of
15 New York; Lara Kassel, coalition coordinator,
16 Medicaid Matters New York; Louise Cohen, CEO,
17 Primary Care Development Corporation; and
18 Anthony Feliciano, Commission on the Public's
19 Health System.
20 Hello, everyone. And I hope you're
21 all there. We'll just call out your name and
22 see if you pop up to talk.
23 Amanda Dunker.
24 MS. DUNKER: Hi. Thank you for the
670
1 opportunity to testify tonight. I'm
2 testifying on behalf of the Health Care for
3 All New York Coalition, which represents over
4 170 member organizations statewide, and we
5 work on ensuring that New Yorkers have health
6 coverage and have access to affordable,
7 quality healthcare.
8 I am going to leave medical debt for
9 the next speaker and highlight four other
10 budget issues related to healthy equity in my
11 testimony.
12 New York's health policies
13 systematically underfund care for low-income
14 and even moderate-income New Yorkers. Years
15 of this means that surviving COVID-19 comes
16 down to your wealth or your race for many
17 New Yorkers. So first is that New York has
18 failed to ensure that everyone has health
19 insurance. There are no coverage expansions
20 proposed in this budget.
21 One solution would be to enact the
22 New York Health Act. That would cover
23 everyone. It would eliminate differences in
24 providers' financial stability based on the
671
1 wealth of their patients.
2 At a minimum, the budget should expand
3 Essential Plan coverage to immigrants who are
4 income-eligible and have had COVID-19 but are
5 excluded because of their immigration status.
6 Immigration status is still one of the
7 biggest barriers to coverage in New York.
8 It's -- 20 percent of people who are without
9 U.S. citizenship in New York are uninsured,
10 compared to 5 percent of the general
11 population.
12 Expanding coverage for them through
13 the Essential Plan would make an enormous
14 difference for some of the hardest-hit
15 communities in New York State, and it would
16 ensure that the hospitals who care for people
17 in those communities receive revenue for that
18 care.
19 Second, public hospitals should not be
20 excluded from receiving Indigent Care Pool
21 funds. The purpose of the Indigent Care Pool
22 is to support hospitals that care for people
23 who are enrolled in Medicaid or are
24 uninsured. Public hospitals serve far more
672
1 of those patients than New York's private
2 hospitals, and they should not lose access to
3 Indigent Care Pool funds.
4 New York has to ultimately change how
5 indigent care pool funding is distributed.
6 If New York had chosen to use those funds
7 exclusively for safety-net hospitals over the
8 past 20 years, they would have received over
9 $13 billion more in funding.
10 Third, safety-net providers should be
11 protected from across-the-board Medicaid rate
12 cuts. New York State law categorizes
13 hospitals who serve the most uninsured or
14 Medicaid-covered patients as enhanced
15 safety-net providers. Those hospitals should
16 be protected from rate cuts.
17 There are big differences in payer mix
18 at hospitals across New York, so Medicaid
19 hospitals -- hospitals that serve more
20 Medicaid patients -- obviously are hurt much
21 more by these across-the-board Medicaid cuts.
22 Some hospitals only have 2 percent of their
23 patients covered by Medicaid. There's others
24 where it's up to 80 percent.
673
1 The Medicaid Global Cap that triggered
2 those cuts should be repealed. The fact that
3 New York is cutting rates for hospitals in
4 the midst of a health and economic crisis of
5 this scale, and is specifically targeting
6 hospitals that serve the most affected
7 communities with those cuts, is a perfect
8 illustration of what is wrong with the
9 Medicaid Global Cap.
10 Finally, I would like to point out
11 that the majority of people hospitalized for
12 COVID-19 are still hospitalized in New York
13 City, and reductions in state funding for
14 public health programs that only apply to
15 New York City are inconsistent with what
16 public health data is telling us to do.
17 Thank you.
18 CHAIRWOMAN KRUEGER: Thank you.
19 Next we have Elisabeth Benjamin,
20 Community Service Society of New York.
21 MS. BENJAMIN: Thank you.
22 First of all, you know, big shout-out
23 to you, Chairwoman Krueger, Chairwoman
24 Weinstein, Chairman Gustavo Rivera,
674
1 Chairman Cahill. You all are lions, you
2 know, as Chuck Bell said -- I mean, just
3 hanging in there and hearing true democracy
4 happen. And thank you for your service and
5 for your service to the public of New York
6 State.
7 I really want to speak about three
8 things. First of all, of course, we support
9 everything at the Community Service Society
10 that Amanda Dunker just spoke about on behalf
11 of Health Care for All New York. But I'd
12 like to focus on the Essential Plan, the
13 Patient Medical Debt Protection Act, and
14 consumer assistance programs.
15 In terms of the Essential Plan, the
16 Affordable Care Act gives us the money to
17 fund the Essential Plan. And it's called the
18 Basic Health Plan in the Affordable Care Act;
19 we renamed it the Essential Plan. And we
20 have a $4.5 billion surplus, thanks to the
21 federal government, in our Essential Plan
22 trust fund, as Donna Frescatore testified
23 today.
24 Now, great news that the Cuomo
675
1 administration is trying to get rid of the
2 $20 premium for medical benefits. But the
3 Affordable Care Act is extremely clear: The
4 surplus of the trust fund should only be
5 spent on improving benefits or reducing
6 premiums for the beneficiaries.
7 Instead, the Cuomo administration is
8 suggesting to spend $650 million on a -- what
9 do they call it? -- some kind of program for
10 the insurance carriers, and a $450 million
11 rate hike for the providers. Now, at the
12 same time they're saying we should still
13 require beneficiaries to spend $30 to cover
14 their vision and dental.
15 The first and foremost thing we should
16 do, under the Affordable Care Act, is get rid
17 of that $30 premium for vision and dental for
18 Essential Plan beneficiaries. These people
19 are below 200 percent of poverty; they don't
20 have an extra $30 a month to pay for vision
21 and dental. That's $150 million.
22 What you do with the remaining surplus
23 after that is another question that I'll
24 leave for another day. But number one, we
676
1 should be getting rid of that stupid vision
2 and dental premium, $30 per member per
3 month -- $150 million. And then -- you know,
4 and we have plenty of money, we have
5 $4.5 billion.
6 Second, we really think that it's time
7 to level the playing field between the
8 patients and the industry. Medical billing
9 is a nightmare in New York State. You know,
10 we have one gentleman that went in for a
11 kidney stone; he came out with 28 different
12 bills. That's not okay. One visit, one
13 bill. You go into the hospital, you should
14 come out with one consolidated bill that
15 explains what's going on.
16 Number two, our -- people are being
17 sued -- oh, my gosh, I'm already out of time.
18 Fifty thousand people have been sued, over
19 5,000 people during the pandemic. We have to
20 get rid of this 9 percent interest rate for
21 people in judgments.
22 And last but not least, thank you for
23 your support for the consumer assistance
24 programs. I'll take questions. I'm sorry, I
677
1 ran out of time.
2 CHAIRWOMAN KRUEGER: Okay. That's all
3 right. We're going to continue on before we
4 take questions.
5 Lara Kassel, Medicaid Matters
6 New York.
7 MS. KASSEL: Good evening. Thanks
8 very much.
9 I am Lara Kassel, I'm the coordinator
10 of Medicaid Matters New York. We are the
11 statewide coalition representing consumer
12 interests in Medicaid.
13 Thank you so much for being here at
14 this late hour. Thank you so much to your
15 staff. I would be remiss if I did not thank
16 them as well. We can't see them, but thank
17 you so much, staff.
18 And I would also be remiss, I feel, if
19 I would not make the suggestion that perhaps
20 a hearing this long be broken up into more
21 than one day, that perhaps you do the
22 government officials in one day and the rest
23 of us on the next day. Just a suggestion for
24 next year.
678
1 I'm going to move through as quickly
2 as possible, in particular because some of my
3 other colleagues on this very panel have
4 touched on, or will -- are about to touch on,
5 I believe, some of the same issues.
6 You know, we are very pleased, for
7 instance, about the elimination of the
8 Essential Plan premiums, but let's go further
9 than that and use some of the trust fund
10 money to eliminate the dental and vision
11 premiums.
12 We are very pleased that this budget
13 does not include direct cuts to eligibility
14 for programs, like previous years. Last
15 year's budget restricted eligibility for
16 home-based care through the Managed Long-Term
17 Care Program. We would be much happier if
18 this budget went even further. It doesn't do
19 any cuts; let's make it go further by
20 repealing last year's eligibility program
21 changes.
22 With those things said, this budget
23 really fails to help New York get closer to
24 where we need to be as it relates to health
679
1 equity and promoting a system that emphasizes
2 community-based services. We need this
3 budget to invest in the home care workforce.
4 Medicaid Matters supports the Fair Pay for
5 Home Care Campaign and the restoration of the
6 Home Care Recruitment and Retention Fund.
7 We also need this budget to protect
8 safety-net providers -- community health
9 centers that rely on the 340B program,
10 essential safety-net hospitals. We need
11 hospitals that meet the definition of
12 essential safety net not to be cut by
13 across-the-board cuts. And we need public
14 hospitals to receive Indigent Care Pool,
15 hospital charity care funding. They are the
16 ones that provide much more services to
17 people who are low-income, uninsured, people
18 on Medicaid; they should be the ones to get
19 the allocation from the charity care funding.
20 What this brings me to in my
21 15 seconds is that we must repeal the
22 Medicaid Global Cap. None of these
23 investments will be possible with the cap in
24 place.
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1 And with the last few seconds, I
2 really want to urge folks to consider
3 restoring funding for adult home residents.
4 The funding for advocacy that supports them
5 and the funding for services outside of their
6 daily -- what do you call it, per diem or
7 whatever, has been cut, and we need that
8 funding to be restored.
9 Thanks.
10 CHAIRWOMAN KRUEGER: Thank you.
11 Our next speaker is from the Primary
12 Care Development Corporation, Louise Cohen.
13 MS. COHEN: Great. Thank you for
14 letting me testify here today, and I
15 appreciate all of your work and the work of
16 your staff. I echo what my colleagues have
17 said.
18 For those of you who don't know us,
19 the Primary Care Development Corporation is a
20 not-for-profit community development
21 financial institution dedicated to building
22 excellence and equity in primary care.
23 So I have a couple of points I'd like
24 to make here today. The first one is I
681
1 continue to suggest and to urge you to reject
2 the harmful cuts to Medicaid that have been
3 proposed in the Governor's budget. These
4 will certainly jeopardize primary care in a
5 very significant way.
6 And that we think that any additional
7 dollars in Medicaid should be going towards
8 building the primary care system. We know
9 that primary care is about prevention, it's
10 about early diagnosis and treatment, and
11 those are the things that reduce cost at the
12 other end of the healthcare scale.
13 You've heard a lot about 340B, and I'm
14 also here to urge you to oppose the 340B
15 carve-out. But I want to give a little bit
16 of a different perspective.
17 As a community lender -- for example,
18 we have lent millions of dollars to
19 Callen-Lorde, who you heard from earlier, in
20 order to create -- help them create their
21 facilities and build out facilities in both
22 Manhattan and in Brooklyn. And we know that
23 originally when we lent to them, no bank was
24 going to lend to them, so it really required
682
1 a community development financial
2 institution.
3 Well, this 340B situation is going to
4 ensure that a number of FQHCs and certainly
5 aid service organizations are potentially
6 going to default. And that means that no
7 bank, no commercial lender will ever lend to
8 them again. And so what you're actually
9 doing is not only destabilizing them from an
10 operational point of view, you're actually
11 destabilizing them from the long-term-capital
12 point of view. And I think that's a
13 perspective that perhaps has not been brought
14 out as much in the 340B conversation.
15 I also want to tell you a little bit
16 about some research that we've done at the
17 Primary Care Development Corporation with
18 funding from the Legislature from last year.
19 We looked at FQHC penetration into New York
20 State and its relationship to COVID-19
21 sickness and death, and here's what we found.
22 In New York State we found,
23 unsurprisingly, where people delayed
24 healthcare due to cost and where there are
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1 large numbers of people without health
2 insurance, there was more COVID sickness and
3 death.
4 But we also found that
5 neighborhood-level COVID-19 mortality rates
6 are lower in communities with a greater
7 number of federally qualified health centers,
8 particularly in counties with high rates of
9 uninsurance. And while we know that
10 communities that had fewer primary care
11 providers before COVID-19 had worse outcomes
12 during COVID-19, what we also know is that
13 going forward, unless we flip that and we
14 increase the amount of primary care, that
15 we're going to continue to have these
16 devastating impacts, particularly on
17 low-income communities of color.
18 And so this reinforces the idea that
19 in the safety net, the safety net is
20 essential, that Medicaid should provide more
21 access to primary care, and that the 340B
22 carve-out will have significant negative
23 impacts on communities that you all serve.
24 Thank you.
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1 CHAIRWOMAN KRUEGER: Thank you.
2 And our last, but certainly not our
3 least -- although we did let a man sneak onto
4 this panel. How did that happen?
5 Anthony Feliciano, Commission on the
6 Public's Health System. How are you doing?
7 MR. FELICIANO: Good evening,
8 everyone. As stated before, I'm Anthony
9 Feliciano. I'm the director of the
10 Commission on the Public's Health System. I
11 also serve on the board of APICHA Community
12 Health Center. I also serve on the board of
13 the Campaign for New York Health.
14 As advocates we often talk about
15 austerity hits the poorest the hardest, we
16 talk about consequences of cutting money for
17 public health and Medicaid for far higher
18 costs in the future and long-term impacts to
19 marginalized communities. But I want to say,
20 as a person who's a Latino, we're hurting
21 now. We've been hurting for years when it
22 comes to care and access. And it's not just
23 us -- people with disabilities, women,
24 children, a range of marginalized
685
1 communities, including indigenous people.
2 So it's clearly, to me, an attack by
3 the Governor, and to me it's a racist attack
4 in many ways when we cut public health
5 funding in certain ways. So, you know, we
6 ask that, one, we restore funding for
7 Article VI programs to New York City and
8 ensure full state reimbursement back to
9 36 percent. We want to strengthen our city's
10 public health system.
11 And you have seen in my testimony the
12 amount of services that are impacted, which
13 means the types of communities that are being
14 impacted, communities of color and other
15 communities.
16 But I want to talk of the notion that
17 New York City can access federal dollars, and
18 it was mentioned even the CDC. Those sources
19 of federal funding sometimes are not
20 fungible, right? And it's misguided to think
21 that New York City is not looking for every
22 dollar that they can on the federal level.
23 But it is really misguided to think this way.
24 And it's really discriminatory to New York.
686
1 The other thing is obviously what our
2 colleagues have said, is limiting any
3 proposal, reject it, to eliminate the state's
4 share of the Indigent Care Pool to our public
5 hospitals, to add language that protects our
6 enhanced safety net providers from the 1
7 percent across-the-board cuts, to repeal the
8 global spending cap. And it was mentioned
9 before, but the global spending cap has
10 similar effects to what conservative states
11 are doing when they have block grants, and
12 what's happening there.
13 So the other thing, as someone who's
14 on the board of a community health center, is
15 to reject the Governor's 340B cuts. I really
16 think we should penalize wasteful executive
17 pay and non-patient-care spending, support
18 various proposals from Invest in Our New York
19 on the tax breaks that the super-rich are
20 getting, pass the New York Health Act, ensure
21 safe staffing.
22 But really, if we really want to be
23 anti-racist, then we need to invest in our
24 communities and in the services that they
687
1 rely on and not undercut it while we're in a
2 pandemic. And to be honest, it's not like
3 racism is going to go away after the
4 pandemic. But we're not prepared as a city
5 to deal with any new pandemics, and we can
6 see COVID-19 as a disease being endemic as
7 part of the registry {sic} that we're going
8 to have to deal with for a very long time.
9 Thank you.
10 CHAIRWOMAN KRUEGER: Thank you.
11 Questions from my colleagues?
12 Gustavo Rivera.
13 SENATOR RIVERA: I got a few, very
14 quick.
15 Thank you so much for hanging out with
16 us this late in the evening. You covered a
17 lot of things that are important.
18 I'll start by saying that as far as
19 Anthony's point about the continuing impact
20 of health inequities in communities of color
21 and poor communities, that's something that's
22 kind of built into the system for a very long
23 time, and therefore we have to act
24 proactively to push it back, which is where
688
1 the medical debt protection act -- which I'm
2 going to go to you in a second, Elisabeth
3 Benjamin -- as well as the New York Health
4 Act, which we've talked about a little bit
5 today but we certainly can talk about it a
6 little bit more.
7 But Elisabeth, if you wanted to kind
8 of talk a little bit -- I mean, I know that
9 Chuck talked about it before, but as far as
10 the Medical Debt Protection Act and how it
11 has impacted exactly what Anthony was talking
12 about, whether we're talking about
13 communities of color that have had historic
14 inequities in healthcare -- are they impacted
15 worse by medical debt? And would this bill
16 actually help those communities out?
17 MS. BENJAMIN: Thank you so much for
18 asking that, Senator Rivera. You are so
19 right.
20 Buffalo, people of color four times
21 more likely to be in medical debt than white
22 people. Rochester, three times. Syracuse,
23 twice. Westchester County, also twice as
24 bad. Queens -- you know, I mean the profound
689
1 racial disparities in medical debt are so
2 upsetting, it sort of shocks the conscience.
3 Moreover, the hospitals, New York
4 State hospitals, every single one is a
5 501(c)(3) charity. Why are they suing people
6 for 9 percent interest?
7 I'm really glad that Helene Weinstein
8 has a bill with Senator Thomas to cut
9 interest for judgments from 9 percent to the
10 U.S. Treasury rate. A first step would be to
11 say just for medical debt. We can all agree
12 that charitable hospitals should probably not
13 be charging 9 percent interest and they
14 should be charging the U.S. Treasury rate, as
15 Chairwoman Weinstein suggests, for all
16 consumer debt.
17 I don't care if we take the Governor's
18 proposal to get rid of all -- you know, use
19 the Treasury rate for all judgments, or
20 Assemblywoman Weinstein's for all consumer
21 debt, that covers medical debt, or yours,
22 Senator Rivera, just to make it start with
23 baby steps for medical debt. But there's
24 just so much that needs to be done on medical
690
1 debt, from cleaning up the surprise bill;
2 from one visit, one bill; from standardizing
3 patient financial liability bills; from
4 getting rid of facility fees, or at least the
5 patient obligation for them; to making
6 hospitals required to cooperate with the
7 All Payer Claims database.
8 I mean, we just need to make it
9 better. It's just mind-boggling what
10 patients have to navigate through in terms of
11 medical billing, and we must step up now,
12 especially for communities of color, but
13 really for everybody.
14 SENATOR RIVERA: Thank you so much.
15 Thank you for coming out this evening, and
16 thank you for the --
17 MS. BENJAMIN: Thank you. Thank you
18 for having us.
19 CHAIRWOMAN KRUEGER: Thank you.
20 Others?
21 Well, I also just want to thank you
22 all for being here and for always -- really,
23 the whole group of you always focusing on
24 what we can't forget in trying to make sure
691
1 that we're providing quality healthcare for
2 everyone.
3 And, I mean, I get calls every day --
4 I supposedly represent the wealthiest
5 district in New York, but I get calls every
6 day from people terrified about these bills
7 that they're getting, that they don't
8 understand them, they just know they couldn't
9 possibly pay them. And they don't even
10 understand why they're getting them; they
11 were originally told "Oh, no, you won't have
12 any bills."
13 And these are elderly people, and so
14 you can see them thinking: I'm going to end
15 up back in the hospital with another heart
16 attack just by opening the envelopes that
17 come from my hospital. So we've got to take
18 care of this.
19 Thank you all. We're going to
20 continue to the next panel.
21 PANELIST: Thank you.
22 CHAIRWOMAN KRUEGER: Thank you.
23 And our next panel will include the
24 Pharmaceutical Care Management Association,
692
1 Lauren Rowley; the Community Pharmacy
2 Association of New York State, Mike Duteau;
3 and the Pharmacists Society of the State of
4 New York, Thomas D'Angelo.
5 Welcome. All right, is Lauren here?
6 Can we start with her?
7 MS. ROWLEY: I'm here.
8 Thank you, Madam Chair. And thank you
9 all for -- I appreciate the opportunity to
10 once again be invited to participate in this
11 hearing, regardless of how late it is
12 tonight.
13 My name is Lauren Rowley. I'm the
14 senior vice president of state government
15 affairs at the Pharmaceutical Care Management
16 Association, the national trade association
17 representing PBMs, or pharmacy benefit
18 managers.
19 PBMs administer prescription drug
20 benefits for more than 266 million insured
21 Americans. In New York we administer
22 prescription drugs not just on behalf of
23 health plans, but for hundreds of self-funded
24 unions, school boards, and municipalities and
693
1 employers across the state. These are
2 entities in your communities with limited
3 budgets who depend on PBMs to manage their
4 drug benefits and their drug spend.
5 Our members' ability to perform PBM
6 services and utilize PBM tools effectively
7 have real-life implications for them, their
8 members and their families.
9 PBMs are on the front lines, working
10 to maintain access and affordability of
11 prescription drugs. We help reduce the cost
12 of drugs by encouraging the use of generics
13 and affordable brand medications; by also
14 reducing waste and increasing medicine
15 adherence; by doing claims processing;
16 creating pharmacy networks; offering
17 mail-service pharmacy, which was very
18 critical during the pandemic; offering
19 specialty pharmacy drug utilization review,
20 which is responsible for identifying adverse
21 events at the point of sale, and disease
22 management and adherence initiatives, as well
23 as formulary management.
24 PBM tools like formulary management
694
1 and policies that promote lower-cost
2 therapies over more expensive ones are relied
3 upon by employers and millions of New Yorkers
4 to mitigate the high cost of prescription
5 drugs.
6 The Governor, as you know, has
7 re-introduced his licensure proposal that we
8 have opposed in previous years. While we
9 continue to have serious concerns with this
10 proposal, as a general matter PCMA and our
11 members do not oppose licensure, state
12 regulation or transparency.
13 We do believe that there should be
14 transparency of all actors in a drug supply
15 chain, however -- pharmaceutical
16 manufacturers, wholesalers, pharmacy services
17 administrative organizations, or PSAOs, and
18 PBMs. But I think it's important to also
19 recognize that we are not the reason drugs
20 are so expensive. That starts and stops with
21 the drug manufacturers. They set the price,
22 they raise the price.
23 We believe that much of the
24 Legislature's rightful focus on consumers and
695
1 drug prices has unfortunately been
2 misdirected. The prevailing narrative being
3 told is that PBMs are putting independent
4 pharmacists out of business in New York, when
5 the objective evidence shows that is simply
6 not true. Independent pharmacies make up
7 nearly 58 percent of the total number of
8 pharmacies in New York State, so must be in
9 our pharmacy networks.
10 We look forward to working with you as
11 these issues continue to go, and I am happy
12 to answer any questions.
13 CHAIRWOMAN WEINSTEIN: Thank you.
14 Now, Community Pharmacy Association.
15 MR. DUTEAU: Hi. Can you hear me?
16 CHAIRWOMAN WEINSTEIN: Yes, we can.
17 MR. DUTEAU: Good evening. My name
18 is -- oh, I have an echo.
19 CHAIRWOMAN WEINSTEIN: We can hear
20 you. Just go ahead.
21 MR. DUTEAU: Can you hear me now?
22 CHAIRWOMAN WEINSTEIN: Yes.
23 MR. DUTEAU: Okay, great. Thank you.
24 Good evening, members of the panel.
696
1 My name is Mike Duteau and I'm a licensed
2 pharmacist in New York and also president of
3 the Chain Pharmacy Association of New York
4 State.
5 Thank you again for the opportunity to
6 present this evening and also thank you, as
7 always, for your strong past support of
8 community pharmacy.
9 As you are aware, the state
10 pharmacists and pharmacy have played
11 essential and expanded roles in the state's
12 response to the COVID-19 pandemic.
13 Pharmacies have remained open and have served
14 as a trusted access point for COVID-19
15 testing as well as vaccinations, and we've
16 also ensured that patients have maintained
17 access to their medications and other
18 incredibly important pharmacy care.
19 We look forward to continuing to serve
20 our communities as we work to improve public
21 health and access to care overall.
22 This evening we'd like to comment
23 briefly on multiple Executive Budget
24 proposals.
697
1 First and foremost, we are asking that
2 the transition from Medicaid managed care to
3 fee-for-service be implemented without
4 significant changes or delays. This change
5 would positively impact nearly 7 million
6 New York patients who have been subjected to
7 benefit and network restrictions or other
8 limits that have harmed patient access and
9 care. It also benefits the state, saving at
10 least $100 million annually by improving
11 transparency and removing cost from the
12 system.
13 I will pause there. We certainly
14 acknowledge and understand the hardship that
15 would be created with certain provisions for
16 340B entities. But that is not created by
17 the transition to fee-for-service. That
18 actually is created by the requirement that
19 New York State pick up the savings, rather
20 than allowing the entities to reinvest that
21 back into their practices and ultimately the
22 communities.
23 So we feel that the best option is to
24 transition to fee-for-service but delay
698
1 affecting 340B providers for at least three
2 years as the state and all stakeholders are
3 able to work through this to ensure that
4 patients, pharmacies, providers and everybody
5 can provide and receive the care that they
6 all deserve.
7 Additionally, we also oppose the
8 1 percent across-the-board cut for all
9 providers. Given the significantly increased
10 need for access to healthcare for Medicaid
11 patients, especially during the pandemic, we
12 think that this is the last place we should
13 be looking to save money in the budget.
14 We also support the budget proposal to
15 authorize licensed pharmacists to administer
16 recommended CDC-approved vaccines for adults.
17 Since 2008, pharmacists in New York have
18 routinely administered certain adult
19 vaccinations, including those with implement
20 doses and scheduling requirements --
21 initially for shingles, and now the COVID-19
22 vaccines. Moving forward would allow
23 New York to join the 48 other states that
24 already authorize pharmacists to administer
699
1 all CDC-approved and recommended vaccines for
2 adults.
3 We also support making permanent the
4 ability for pharmacists to order and
5 administer CLIA-waived tests, as authorized
6 for COVID-19 and flu tests during the
7 pandemic. Pharmacists are extremely well
8 prepared to order and administer these tests,
9 given their training and expertise. And in
10 fact, we've been providing other CLIA-waived
11 tests for communities for many years.
12 Convenient locations, accessible
13 hours -- these have allowed pharmacies to
14 effectively provide these tests to their
15 communities. And just like vaccines,
16 New Yorkers have responded very positively to
17 having access to the test at their local
18 pharmacies.
19 Importantly, we support and believe
20 that clear communication and collaboration
21 between a physician and the pharmacist or
22 other healthcare providers is essential to be
23 included in this language.
24 CHAIRWOMAN WEINSTEIN: Can you wrap
700
1 up --
2 MR. DUTEAU: Finally, and importantly,
3 we support pharmacy benefit manager
4 regulation and ask for urgent action,
5 including registration, licensure and
6 oversight of PBMs in New York State.
7 Patients and providers --
8 CHAIRWOMAN WEINSTEIN: Thank --
9 MR. DUTEAU: -- need these protections
10 to end unfair practices.
11 CHAIRWOMAN KRUEGER: Thank you. Thank
12 you. Sorry, we had to cut you off for time.
13 And our last speaker, Pharmacists
14 Society of the State of New York.
15 MR. D'ANGELO: Hi. Good evening,
16 everybody. Can you hear me okay?
17 CHAIRWOMAN KRUEGER: Yes.
18 MR. D'ANGELO: Very good.
19 Honorable Finance Chair Senator
20 Krueger, Honorable Ways and Means Chair
21 Assemblymember Weinstein, Senator Rivera,
22 Assemblyman Gottfried, and distinguished
23 members, my name is Thomas D'Angelo. I am a
24 licensed pharmacist in Long Island, and I own
701
1 two independent pharmacies. I'm currently
2 the president of PSSNY, the Pharmacists
3 Society of the State of New York.
4 On behalf of PSSNY and the pharmacists
5 we represent, thank you to both the Senate
6 and Assembly for all of the support in the
7 past. We really do appreciate it.
8 It has taken a global pandemic for
9 pharmacists to officially be recognized as
10 critical healthcare providers. While
11 doctors' offices closed, hospitals became
12 overwhelmed and couldn't handle normal
13 patients that were ill with other than COVID,
14 pharmacies remained open. We took great
15 personal risk, we became front-line COVID
16 testing locations. Many of my colleagues did
17 succumb to the disease, unfortunately.
18 When the COVID-19 vaccine became
19 available, pharmacists once again rose to the
20 challenge. Today we have vaccinated
21 thousands of patients across New York. We
22 stepped up when the state and the communities
23 needed us most.
24 As legislators debate the merits of
702
1 COVID-19 executive orders, we must point out
2 that certain orders were only necessary
3 because the legislators had not acted to
4 expand our scopes of practice in the past.
5 And we have proven during this pandemic that
6 we are ready and capable of handling these
7 challenges.
8 We are calling on the Legislature to
9 enact PBM reform in the budget now,
10 immediately. For the last several years
11 there have been various PBM reform measures
12 in the proposed budget and in the
13 Legislature. All have been rejected for
14 various reasons, or vetoed. The PBM reform
15 in the proposed budget is very good for
16 pharmacy and patients. While it does not
17 contain the stringent public health law and
18 patient protections which PSSNY strongly
19 supports, the proposed reforms are very
20 strong.
21 PSSNY supports providing the
22 Department of Financial Services broad
23 regulatory authority over the PBMs. If you
24 enact the proposed reform measure in the
703
1 budget, PSSNY strongly supports subsequent
2 legislation to further strengthen patient
3 protections.
4 But we need this now. The parasitic
5 PBMs have their hands around our throats and
6 our backs against the wall. Let's not let
7 the perfect become the enemy of the good.
8 PSSNY's positions on the budget
9 proposal at this time. PSSNY supports the
10 language in the proposed budget for pharmacy
11 benefit managers. PSSNY suggests the
12 Legislature incorporate person protections
13 into the final enacted budget. That said,
14 PSSNY supports passage of language as is if
15 the sides cannot agree on the scope of
16 additional patient protections.
17 As far as the expansions of scope of
18 practice for pharmacists, PSSNY is in favor
19 of the language regarding vaccinations and
20 CLIA-waived testing. There's absolutely no
21 policy-based justification at this time for
22 limiting the types of adult vaccines a
23 pharmacist can perform in the State of
24 New York.
704
1 The budget proposal also contains a
2 provision regarding collaborative drug
3 therapy management, CDTM. While PSSNY does
4 recognize the value of CDTM, it does not
5 reflect the needs of patients in the
6 community. PSSNY is of the opinion that
7 collaborative medical management, or CMM, is
8 more in line with community needs. Time and
9 again it has been demonstrated that patients
10 are more successful with their drug therapy
11 when a pharmacist is directly involved.
12 Regarding fee-for-service, there has
13 been a lot of discussion today and for
14 several weeks around the fee-for-service
15 carve-out. PSSNY is calling on the
16 Legislature to allow the implementation to go
17 forward without delay, immediately. Every
18 state that has moved their pharmacy benefit
19 to fee-for-service has realized millions of
20 dollars in savings, and New York will be one
21 of them as well.
22 In conclusion, lessons from this past
23 year have taught us that pharmacy is a
24 critical part of New York's healthcare
705
1 system. PSSNY is asking the Legislature to
2 support pharmacy by passing PBM reform in the
3 budget, as well as expanded immunization
4 authority and other critical scope-of-
5 practice issues that will continue to enhance
6 New Yorkers' lives.
7 CHAIRWOMAN KRUEGER: Thank you.
8 Any members -- oh, look, I'm seeing
9 multiple members.
10 CHAIRWOMAN WEINSTEIN: We have a
11 number of Assemblymembers.
12 Assemblyman Cahill.
13 CHAIRWOMAN KRUEGER: Okay, I'll check
14 with Gustavo. Are you -- Gustavo, are you
15 in --
16 SENATOR RIVERA: I'm going to let some
17 of the Assemblymembers go first.
18 CHAIRWOMAN KRUEGER: Okay.
19 Assembly.
20 SENATOR RIVERA: You know I'm a
21 cleanup hitter. I'm a cleanup hitter.
22 (Laughter.)
23 CHAIRWOMAN WEINSTEIN: Assemblyman
24 Cahill.
706
1 ASSEMBLYMAN CAHILL: Everybody wants
2 to get home even. Even though we're home, we
3 still want to get homer home.
4 Thank you, everybody. And I always
5 appreciate it when we put the independent
6 pharmacists on the same panel with PCMA.
7 It's like having the fourth of July right in
8 front of us.
9 So thank you all for coming here
10 today, and thank you also for your
11 perspectives. Mr. D'Angelo, I'd like to
12 address some of the things that -- in
13 particular, about not letting the perfect get
14 in the way of the good.
15 I want to just go over a few
16 differences in the Governor's fake proposal
17 for PBM management and the official proposal
18 by the Legislature. The definitional section
19 almost doesn't exist. The bill lacks a form
20 of accountability for PBMs. There is no
21 transparency in the bill. There absolutely
22 is no duty of care to the patients. And if
23 you were here earlier today, you heard that
24 the administration opposes that concept.
707
1 There is no prohibition against PBM
2 substitution. There is no drug price appeal
3 process. So perhaps after I'm done with this
4 tirade you can explain to me how that is the
5 good that the perfect is in the way of,
6 because to me it doesn't sound like it's very
7 good.
8 So with that, let me explain to you
9 what happened last year. Last year we knew
10 the Rutledge decision was pending. We knew
11 it was not here yet. Now the Rutledge
12 decision has clearly said that regulation of
13 PBMs is not regulation of health plans.
14 That's what Justice Sotomayor said.
15 We also -- although I wasn't concerned
16 about this, given the fact that it was passed
17 either unanimously or nearly unanimously --
18 did not have what we call veto-proof
19 majorities in both houses. We do now, and
20 I'm pretty sure the sponsors are anxious to
21 move forward with their bill to have it
22 considered.
23 So I would urge you to go back to your
24 association and ask them to stand for the
708
1 really, really good over the really, really
2 bad.
3 So with that, I'd like to just ask
4 Ms. Rowley, in your comments you indicated
5 that you generally oppose the Governor's bill
6 but that you support some levels of
7 registration and licensure.
8 Can you please tell me in the next 52
9 seconds what it is about the Governor's
10 proposal for PBM regulation that you don't
11 like?
12 MS. ROWLEY: We think it gives really
13 broad regulatory authority to the
14 superintendent on a lot of different issues
15 that, you know, are of concern to us,
16 obviously. I mean, I think that, you know,
17 in contrast, we really have serious
18 objections to I think the Assembly and the
19 Senate bills. We think that there's a lot of
20 constitutional problems with them. We do
21 believe that they run afoul of ERISA,
22 frankly, on the fiduciary issue alone.
23 So, I mean, we're -- I guess our hope
24 is that after the third year of kind of going
709
1 through this that maybe all parties can come
2 to the table and negotiate something that
3 makes sense for everybody.
4 ASSEMBLYMAN CAHILL: Thanks so much.
5 By the way, I was reading the PCMA
6 memo on Rutledge, and it doesn't exactly say
7 that you've concluded that PBM regulation
8 runs afoul of it. You said, be careful
9 because states are going to start regulating
10 you. That's what your own internal memo
11 says.
12 But that's okay. I'm out of time. I
13 do want to thank you. And if I run into
14 Superintendent Lacewell, I will tell her that
15 she has a kindred spirit on her understanding
16 of the Rutledge decision. Thanks so much.
17 MS. ROWLEY: I'll be happy to address
18 that issue of, you know, our memo, if I may.
19 You know, we believe that --
20 CHAIRWOMAN WEINSTEIN: Excuse me.
21 MS. ROWLEY: Okay, sorry. Sorry,
22 Senator.
23 CHAIRWOMAN WEINSTEIN: Is
24 Senator Rivera up, or does he want us to go
710
1 forward with another Assemblymember?
2 CHAIRWOMAN KRUEGER: He's fine. Go
3 ahead with another Assemblymember.
4 CHAIRWOMAN WEINSTEIN: Assemblyman Ra,
5 then.
6 ASSEMBLYMAN RA: Thank you, Chair.
7 We're going to try to put some runners
8 on base for Senator Rivera to clean up so he
9 can hit a grand slam.
10 Thank you, Chairs. Tough to follow
11 Chairman Cahill on that one, but I also
12 always enjoy seeing this panel together with
13 that issue outstanding from the last couple
14 of -- couple of budget cycles.
15 But I did want to get into a different
16 issue. Tom, you know, you're aware of my
17 support on the PBM issue, but I did want to
18 ask about the immunization and the scope of
19 practice issue. Because one of the things
20 that I've learned over the years -- you know,
21 from yourself, from Howard Jacobson -- is
22 that when you create uncertainty with, you
23 know, what you're able to vaccinate for, it
24 just -- it muddies the waters.
711
1 And I remember when -- a few years ago
2 when we were in the midst of a bad flu season
3 and the Governor came out and said, "Hey,
4 pharmacists can immunize children." And I
5 was talking to Howard about the issue and he
6 said, "Yeah, that's great that came out, but
7 I don't have the vaccine in stock because I
8 couldn't give it, so why would I have stocked
9 it?"
10 So I was wondering if you can
11 elaborate more on the importance of creating
12 certainty both with this proposal and
13 perhaps, you know, getting rid of some of the
14 sunsets that are there that cause you to have
15 to, you know, every couple of years ask for
16 extensions and expansions of those
17 authorities.
18 MR. D'ANGELO: Right. So -- that's
19 exactly right. You know, we -- if we were
20 allowed to do all CDC-recommended vaccines or
21 any vaccine that was then emergency-approved
22 by the CDC, when this COVID vaccine came out
23 we would have already had a process in place
24 to jump right in and get going.
712
1 It didn't turn out that way because we
2 had to get special approval to administer the
3 vaccine, then we had to go through all the
4 training -- because not every pharmacist was
5 trained to do the whole NYSIIS system because
6 we don't vaccinate children. So -- and
7 that's basically -- it was a child platform.
8 And exactly right, a couple of years
9 ago when things got hard, it was okay for us
10 to vaccinate at that time.
11 New York is still almost dead last as
12 far as what they're allowed to vaccinate.
13 The rest of the country is way ahead of the
14 pharmacists in New York as far as what
15 they're allowed to vaccinate. And that's
16 really not necessary. Nothing says that we
17 should be held back.
18 ASSEMBLYMAN RA: Well, and thank you,
19 because I know you're busy, you know,
20 vaccinating people. Because, you know, your
21 Garden City South location's right around the
22 corner from my house, and I see the lines out
23 there every morning. So keep up the good
24 work. Good to see you.
713
1 MR. D'ANGELO: Thank you very much.
2 CHAIRWOMAN WEINSTEIN: Rebecca
3 Seawright, then.
4 ASSEMBLYWOMAN SEAWRIGHT: Thank you,
5 Chairs.
6 Good evening, pharmacists. Thank you
7 for your testimony this evening. I grew up
8 in a pharmacy. My father was a pharmacist,
9 and my older sister, so I grew up as a child
10 working in retail pharmacy.
11 We heard testimony tonight about your
12 interest in expanding the scope of practice.
13 How would you take into account the needs of
14 senior citizens? Which is very important in
15 my district here on the Upper East Side and
16 on Roosevelt Island. And I want to also
17 encourage early hours be reserved for senior
18 citizens in order to reduce their waiting
19 time, especially in this pandemic.
20 MR. D'ANGELO: So who's that question
21 to?
22 ASSEMBLYWOMAN SEAWRIGHT: Any member
23 that would like to answer it.
24 MR. DUTEAU: Maybe I can start, and
714
1 you can finish up?
2 MR. D'ANGELO: Sure, Mike.
3 MR. DUTEAU: Great.
4 So thank you very much for the
5 question. You know, I think there's a lot
6 that we've learned just recently with this
7 pandemic, from finding new ways to schedule
8 the COVID vaccine.
9 Also a lot of these scope of practice
10 expansion proposals really are focused on the
11 elderly population -- for example, CDTM --
12 and allowing us to better collaborate with
13 physicians on medication adherence and really
14 chronic disease that affect the elderly --
15 diabetes, hypertension. I think this helps
16 us be much better positioned to treat and
17 care for those patients in that age group.
18 And then when you combine that with a
19 lot of the operational programs that we
20 continue to develop and evolve, I think
21 pharmacy has never been better positioned now
22 to help care for all of our patients, but
23 especially the elderly.
24 MR. D'ANGELO: Yeah, and I'll pick up
715
1 where Mike left there.
2 So far during the vaccination program
3 I've noticed that the elderly have had a much
4 easier time dealing with their local
5 community pharmacies -- getting an
6 appointment, getting there, making sure the
7 vaccine was done. It's convenient for them,
8 they're comfortable with those pharmacists,
9 they're comfortable with their local
10 pharmacist, they're like family to them.
11 You know, in my pharmacy in
12 particular, we have -- we're only allowed to
13 vaccinate people 65 and older. So all of
14 those elderly people at this point are coming
15 to our pharmacies and being taken care of.
16 And independent pharmacies,
17 pharmacies -- community pharmacies, they
18 usually offer free delivery so the patients
19 do not have to leave their home for their
20 medications. The collaborative management
21 between doctors and pharmacists to treat
22 patients or to monitor their drug therapy to
23 make sure it's being effective. You know,
24 these are all things that the elderly would
716
1 benefit from more than anybody.
2 ASSEMBLYWOMAN SEAWRIGHT: Thank you.
3 Thank you all. And thank you, Chairwomen.
4 CHAIRWOMAN KRUEGER: Thank you.
5 Rebecca Seawright and I happen to
6 overlap in our districts, so I'll just point
7 out I really do find, Rebecca, that the
8 pharmacies where the person can just talk to
9 someone on the phone or go in and talk to the
10 pharmacist, it's working so much better
11 during a pandemic than trying to go through
12 the computer systems that some of the larger
13 chains have been able to set up but our
14 seniors can't figure them out.
15 So I do agree that there's a real
16 difference in the direct care someone can get
17 at times like this from knowing their
18 pharmacist and their local pharmacy.
19 Thank you, Helene. Do you have any
20 other members?
21 CHAIRWOMAN WEINSTEIN: Yes, we do have
22 one more before Senator Rivera. So we have
23 Assemblyman Byrne.
24 ASSEMBLYMAN BYRNE: Thank you. I
717
1 actually had to relocate. I was listening, I
2 wasn't going to ask questions, I had to head
3 back home.
4 But my question was for Ms. Rowley.
5 You wanted to finish your comment about an
6 internal memo, and I just wanted to give you
7 the time to -- that I have to address that
8 comment.
9 And I do want to thank everybody else
10 for their testimony as well.
11 MS. ROWLEY: Yeah, I just wanted to --
12 thank you so much for the question.
13 We believe, and I believe actually
14 NCPA actually put out something that also
15 said that we think this is a very narrow
16 decision by the court. It basically viewed
17 the law's procedural requirements -- map
18 lists, appeal procedures, reverse and rebill,
19 and decline to dispense -- as simply
20 enforcement mechanisms to accomplish the rate
21 regulation.
22 So from that premise, the court
23 concluded that the Travelers decision, which
24 was a 25-year-old Supreme Court decision,
718
1 decides the case. So -- which is, again,
2 about rate regulation and the state's
3 authority to regulate rates on ERISA plans.
4 It did not do away with all the other
5 court decisions and precedent that has been
6 set on ERISA preemption. The court also
7 didn't say it was a good idea, they didn't
8 say it was good public policy, they didn't
9 say it wasn't going to cost money. In fact,
10 in the Sotomayor opinion, they did say it was
11 going to cost money on ERISA plans and that
12 folks in Arkansas may pay more.
13 So I just think that's an important
14 distinction to have here with regard to
15 ERISA, since it's such a complicated issue.
16 And we do believe there's still a lot of
17 ERISA preemption issues out there. Just
18 regulation now has been solidly decided by
19 first Travelers and now Rutledge.
20 Thank you so much for the question.
21 CHAIRWOMAN KRUEGER: Thank you. So
22 now Senator Gustavo Rivera.
23 SENATOR RIVERA: I'll be very brief.
24 I'll just -- I'll certainly thank Ms. Rowley
719
1 for correctly pronouncing the name
2 "Sotomayor," Justice Sotomayor, and also to
3 say that we have a very strong disagreement.
4 I actually have been working with my
5 community -- I've been talking to community
6 pharmacies, certainly the Pharmacists
7 Society, as well as other folks that have
8 come to tell us about the issues that they
9 have.
10 We passed it last year, the Governor
11 vetoed -- or is it two years ago? The 'rona
12 makes everything very, very complicated. But
13 I know we passed it, it was vetoed by the
14 Governor. We certainly -- I'm supportive of
15 some of what's in the Governor's budget, but
16 I'm looking forward to passing legislation
17 that is stand-alone.
18 So with that, thank you, Madam Chair.
19 I am good.
20 CHAIRWOMAN KRUEGER: Thank you.
21 Well, thank you all very much for
22 being with us tonight, appreciate it.
23 And we're going to move on to our next
24 panel, which is --
720
1 MR. DUTEAU: Thank you.
2 MR. D'ANGELO: Thank you.
3 CHAIRWOMAN KRUEGER: Thank you.
4 -- the American Cancer Society,
5 Julie Hart, senior director, New York
6 government relations; and Housing Works,
7 Charles King, CEO.
8 Good evening.
9 MS. HART: Good evening. Thank you.
10 Do you want me to go ahead and start?
11 CHAIRWOMAN KRUEGER: Yes, please.
12 MS. HART: Hi, everybody, I'm Julie
13 Hart. I'm the Government relations director
14 for the American Cancer Society Cancer Action
15 Network. Thank you so much for sticking with
16 us tonight. A huge thank you to your staff
17 and also to all the staff members that helped
18 put this together so that we can still
19 advocate virtually and safely. It is greatly
20 appreciated.
21 So you do have a copy of my written
22 testimony that has significant details in
23 there, so I just want to highlight a couple
24 of items. As you can see on the first page,
721
1 the toll that cancer takes on New Yorkers is
2 significant. About 120,000 New Yorkers will
3 be diagnosed with cancer this year, and
4 nearly 34,000 people are expected to lose
5 their battle to cancer. So there's still
6 very grim statistics.
7 I've also listed -- you can see on the
8 bottom of the first page -- the main types of
9 cancer and also cancer deaths. We anticipate
10 about 6800 people will lose their battle to
11 lung cancer this year. And I know in
12 New York we've done a lot on tobacco control
13 in recent years, so thank you for all that
14 you are doing. We certainly still need to do
15 more when it comes to tobacco control so that
16 we can reduce those lung cancer numbers.
17 In addition, if you look on page 3,
18 there are some numbers related to smoking
19 rates in New York. So currently in New York
20 about 12.8 percent of adults are still
21 smoking, but there are significant pockets
22 where that smoking rate is much higher -- if
23 you look at those that report poor mental
24 health, young cancer patients, Medicaid
722
1 recipients. So there are still significant
2 pockets where the smoking rate is very high.
3 Now, one of the most effective tools
4 that we have to reduce smoking rates is our
5 tobacco tax. And our tobacco tax in New York
6 has not been raised in over a decade. We're
7 currently at $4.35 per pack. If we increase
8 our cigarette tax by just one dollar, that
9 would encourage about 54,000 New York adults
10 to quit and about 22,000 kids would be
11 prevented from becoming addicted smokers.
12 So that cigarette tax has real public
13 health benefits. And in addition, that money
14 should be used for programs like the Tobacco
15 Control Program and keep that program whole
16 so that adults have the tools that they need
17 to quit and that we can keep encouraging kids
18 to not smoke, period.
19 So on the last page, you'll see my
20 recommendations, because I know I'm almost
21 out of time. But we encourage you to adopt a
22 tobacco tax, a cigarette tax of one dollar
23 per pack and then a parallel tax on other
24 tobacco products, and then to use that money
723
1 for the Tobacco Control Program and also to
2 maintain funding for the Cancer Services
3 Program so that people can still get safe
4 cancer screenings.
5 So thank you. I appreciate your time.
6 CHAIRWOMAN KRUEGER: Thank you.
7 Charles?
8 MR. KING: Good evening. And thank
9 you for holding this important hearing.
10 Historically I've testified at this
11 hearing about steps we need to take to end
12 the AIDS epidemic. Tonight, however, I come
13 before you to urge the Legislature to protect
14 New York's safety-net providers at a time
15 when we have never been more important yet
16 face dangerous attacks by Governor Cuomo,
17 even as the state's mismanagement of the
18 COVID-19 crisis becomes more evident.
19 The Executive Budget not only fails to
20 rise to the historic moment we are facing,
21 but its healthcare provisions include
22 proposals that will undermine both individual
23 health of vulnerable New Yorkers as well as
24 our health system.
724
1 Last April we threw Housing Works into
2 the COVID response, operating a hotel for
3 homeless people with COVID, expanding to
4 provide medical and behavioral health
5 services to six quarantine and MOCJ hotels,
6 delivering COVID tests to our consumers, our
7 neighbors, and all of HRA-funded supportive
8 housing staff and residents. We've fought
9 for vaccines, though initially shut out of
10 the distribution system, and we're not
11 vaccinating our staff and qualifying
12 consumers.
13 To do all this COVID work we've had to
14 secure all of our own PPE, invested thousands
15 of dollars to cover unfunded costs -- even
16 while the Governor decided to withhold
17 20 percent of our contract reimbursement,
18 though we were expected to continue to
19 perform at a hundred percent.
20 How does it make sense in the middle
21 of a massive public health emergency to
22 withhold funds from safety net providers
23 caring for the poorest and most marginalized
24 residents of this state?
725
1 Now we face a pharmacy carve-out for
2 managed care that will cut millions of
3 dollars of funding through the federal 340B
4 program. We estimate the impact on Housing
5 Works to be as much as $8 million a year,
6 with substitute funding which we estimate
7 will be a maximum of 40 cents on the dollar.
8 Let me explain why this is so
9 important. We have always used our 340B
10 funding to pay for services and care that is
11 unreimbursed. With COVID we've used 340B
12 funding to buy smartphones for our low-income
13 consumers so that they can participate in
14 telehealth, helping consumers download the
15 telehealth and training them in its use.
16 It has also paid a large share of our
17 COVID testing and vaccination program. To
18 adequately staff a vaccination program just
19 to deliver 100 vaccinations a day, with
20 patient education, documentation submission,
21 preparation and post-vaccination observation,
22 costs us $100,000 a month. Our reimbursement
23 per injection is $12 -- in other words, less
24 than a quarter of the expense.
726
1 Neither New York City nor New York
2 State has provided us with any additional
3 funding for this work. We are using our 340B
4 funds to do this. So if the Legislature
5 allows this proposed carve-out to go through,
6 it is likely that Housing Works and other
7 community health centers will have to pull
8 back from vaccinating people for COVID except
9 in the course of a regular primary care
10 visit.
11 Please don't allow this to happen. We
12 should eliminate the global cap and raise new
13 revenue from those who profited during the
14 pandemic, not cut the safety net.
15 Thank you for your time.
16 CHAIRWOMAN KRUEGER: Thank you.
17 Are there any members who would need
18 to ask questions?
19 SENATOR RIVERA: I'll say something
20 very quickly.
21 CHAIRWOMAN KRUEGER: Gustavo Rivera.
22 SENATOR RIVERA: You're usually right
23 up until the -- Charles, we don't have you
24 right at the end. You should be at least
727
1 thankful about that, shouldn't you?
2 MR. KING: So I didn't want to take
3 any of my time to thank you all. For three
4 years in a row, I have been the last --
5 SENATOR RIVERA: Very last.
6 MR. KING: -- person to testify.
7 SENATOR RIVERA: So I'm very thankful
8 to both of you for being with us.
9 And I certainly agree with you,
10 Ms. Hart, about some of what we need to do to
11 continue to push down smoking rates in the
12 State of New York.
13 And Charles, you've made the point, as
14 was made earlier by other folks about the
15 flexibility of 340B, of what you're able to
16 do with the 340B savings, the flexibility
17 that it allows you to be able to react in a
18 situation when you need to, and considering
19 that you serve folks who are so vulnerable to
20 begin with. I thank you for doing that,
21 thank you for speaking out. And we continue
22 to -- hopefully we will be able to push back
23 on this, because it's a bad idea, it's silly,
24 we shouldn't do it.
728
1 So that's it from me, Madam Chair. I
2 don't know if they -- anyway, I'm done,
3 Madam Chair.
4 CHAIRWOMAN KRUEGER: I have a question
5 for Julie.
6 So for forever we've believed that
7 New York had the highest taxes on cigarettes.
8 Is that still true, or have we fallen behind
9 over the last couple of years?
10 MS. HART: Right now DC has the
11 highest tax, at $4.50 per pack. But if you
12 look at state and local taxes combined, there
13 are some -- like Chicago's is over $7 per
14 pack. So there's certainly precedent for
15 going much higher. And that dollar increase
16 would bring in about $38 million in new
17 revenue.
18 CHAIRWOMAN KRUEGER: Well, we've also
19 always made the argument that cigarette taxes
20 discourage people from starting to smoke at
21 all. So it doesn't necessarily increase
22 revenue, it saves lives because it's --
23 MS. HART: Right. First and foremost,
24 it prevents kids -- kids are more
729
1 price-sensitive than adults are, as well.
2 CHAIRWOMAN KRUEGER: And that's -- the
3 research still shows that that's true?
4 MS. HART: Yes.
5 CHAIRWOMAN KRUEGER: So the targeted
6 audience of perhaps who would be more
7 discouraged than ever from smoking would be
8 younger people?
9 MS. HART: Yes, absolutely. Kids are
10 much more price-sensitive.
11 CHAIRWOMAN KRUEGER: And we had done
12 some changes in the laws around the flavored
13 tobaccos and other things. Is there also
14 research findings that those are
15 discouraging -- or encouraging kids not to
16 get into smoking or vaping because they can
17 no longer buy the candy-flavored product?
18 MS. HART: Yeah. Well, we certainly
19 know that kids are enticed by flavors. And
20 we know also that tobacco companies have a
21 history of targeting minority communities,
22 particularly with menthol. So we don't have
23 yet research on New York's law just because
24 it is so new. But I imagine that we will
730
1 have that at some point.
2 CHAIRWOMAN KRUEGER: Got it. Thank
3 you very much.
4 MS. HART: Thank you.
5 CHAIRWOMAN KRUEGER: Thank you as
6 always, Charles, for your work.
7 We're going to move along to the
8 New York Caring Majority, Bobbie Sackman; the
9 Empire State Association of Assisted Living,
10 Lisa Newcomb; and the New York State Health
11 Facilities Association, Stephen Hanse.
12 Is everybody here? Do I see people?
13 Let's see. Bobbie, are you with us?
14 MS. SACKMAN: Yes.
15 CHAIRWOMAN KRUEGER: Oh, hi there.
16 Yes. Welcome. Why don't we start with you.
17 MS. SACKMAN: Thank you. Good
18 evening, everybody. Thank you for the chance
19 to testify.
20 My name is Bobbie Sackman. I'm with
21 the New York Caring Majority and Jews for
22 Racial and Economic Justice. And the Caring
23 Majority is comprised of older adults, people
24 with disabilities, home care workers and
731
1 family caregivers who are working to address
2 the injustices in our long-term-care system.
3 Our central focus is the Fair Pay for Home
4 Care Act, which Assemblyman Gottfried and
5 Senator May have kindly and generously taken
6 on the prime sponsorship for.
7 Well, it certainly has been a long
8 day. And I thought just for a moment, if you
9 could all think about a care story that you
10 might have -- and I think we all have a care
11 story, somebody that's been in our lives that
12 needed care and maybe even needed home care.
13 This is -- it's not about them, this is very
14 much about us.
15 And so the workforce caring for older
16 adults, the home care workforce, are
17 predominantly women with children and
18 immigrants. The state pays them poverty
19 wages. They're averaging about 18,600 a
20 year. This has led to a dramatic home care
21 shortage statewide. In parts of the state,
22 especially upstate, you can't even find a
23 home care worker. You just can't. And so
24 the Fair Pay for Home Care Act is good for
732
1 New York's economy, it's good for New York's
2 care.
3 Testifying with me today are millions
4 of older New Yorkers, people with
5 disabilities, home care workers and family
6 caregivers. We are indeed a caring majority.
7 We all urge you to support the Fair Pay for
8 Home Care Act.
9 We support the New York Health Act --
10 thank you, Senator Rivera. When it's passed,
11 we need to pay home care workers enough so we
12 have home care workers. That's the other
13 piece of the pie here.
14 The Fair Pay for Home Care Act would
15 raise home care wages to 150 percent of
16 minimum wage, about $22,000 a year to $35,000
17 a year. The CUNY School for Labor and Urban
18 Studies just released a report -- released
19 the executive summary so far -- and they
20 found out that this act would generate
21 $7.6 million -- $7.6 billion for the state
22 economy through new income and sales tax
23 revenue, economic spillover, and reductions
24 in Medicaid and social assistance.
733
1 Medicaid is the best investment the
2 state can make to generate jobs and increase
3 revenue for the coming years.
4 As New York faces widespread
5 unemployment over the next decade, the act
6 would bring in 20,000 jobs a year. So
7 200,000 jobs over the decade. It would
8 additionally create 18,000 jobs a year, or
9 180,000 jobs over a decade, in industries via
10 increased spending and economic activity.
11 Doing the math, that's 38,000 jobs a year.
12 Investing in Medicaid and putting
13 economic development funds in home care is
14 smart. They're shovel-ready. They keep
15 people safe -- I see my time is up. So we're
16 just asking you to pass the Fair Pay for
17 Home Care Act and also the Home Care Jobs
18 Innovation Fund, which did get into the
19 Senate one-house bill last year, and then the
20 pandemic hit.
21 Thank you very much.
22 CHAIRWOMAN KRUEGER: Thank you.
23 Next we have Lisa Newcomb, Empire
24 State Association of Assisted Living.
734
1 MS. NEWCOMB: Thank you, and good
2 evening.
3 A few of you already know about the
4 state's chronic underfunding of the adult
5 care facility/assisted living industry, with
6 only one SSI increase in 30 years. I'll
7 refer you to my testimony for details. But
8 suffice to say it's virtually impossible to
9 take care of 80- and 90-year-old seniors,
10 meeting all their needs for $42 a day.
11 So with the Governor's proposed budget
12 and 30-day amendments, we get more injury
13 upon injury. Today the department already
14 has broad fining authority. The Public
15 Health Law authorizes specific fining
16 authority over ACFs. And if you look at the
17 history of their fines, they have exercised
18 that authority with zeal, both before and
19 during the pandemic.
20 The 30-day amendments not only
21 dramatically increase the per-day
22 violation -- and somebody mentioned it, it is
23 per day -- it multiplies our maximum per-day
24 fine tenfold, from $1,000 a day to $10,000 a
735
1 day. It also eliminates our ability to
2 rectify minor, less serious infractions
3 without a concurrent fine. So one minute
4 late per survey -- you know, we've been doing
5 those daily surveys for 300-and-some-odd
6 days. One minute late, you're subject to a
7 fine.
8 So why -- you know, we feel as if we
9 are under attack. And, you know, there
10 haven't been big allegations of wrongdoing
11 during the pandemic. In fact, despite
12 virtually all the mandates being imposed on
13 us as have been imposed on nursing homes,
14 with no funding assistance, the ACFs have
15 fought valiantly to protect both their
16 residents and staff. So why then attack this
17 industry, many of whom are family-owned
18 businesses that struggled to make ends meet
19 even before COVID?
20 While the numbers of positive cases
21 and deaths are not as high as those in
22 nursing homes -- but one is too many, as
23 somebody said earlier -- we have not escaped
24 unscathed. ACF residents are still frail
736
1 seniors in a congregate living arrangement,
2 and that is where we know COVID preys.
3 ESAAL's more than 300 licensed members
4 and their staff have worked tirelessly
5 throughout this nightmare to keep our
6 residents safe -- this with almost no state
7 government support other than some PPE for a
8 short period of time when there was no other
9 place to get it, and even that support was
10 much delayed.
11 ACF providers and staff should be
12 praised and honored, not punished, which is
13 what this budget does. It punishes us -- and
14 for what, we really don't know. We can only
15 surmise that, to use the Governor's own
16 words, it's just politics. Moreover, the
17 Governor's budget wipes out funding for the
18 one and only program that the state dedicates
19 to ACFs that serve the indigent on SSI --
20 that program is EQUAL -- a modest
21 $6.3 million. We ask that you restore that.
22 Just quickly back to the fines -- I
23 see I'm out of time -- and removal of the
24 ability to rectify minor violations. We've
737
1 heard comments that it's simply an attempt to
2 adjust for inflation, our per-day fines.
3 Well, that would be fair if the same could be
4 said in terms of the SSI rating, adjusting
5 that for inflation.
6 And it's also important to note that
7 our violations are per day, unlike nursing
8 homes and hospitals, so potentially we could
9 be paying more for the same infraction than a
10 nursing home or a hospital.
11 And if you give the department the
12 ability -- more broadly, power -- without
13 giving ACFs the chance to fix these minor
14 issues, the department will abuse it.
15 CHAIRWOMAN WEINSTEIN: Thank you.
16 CHAIRWOMAN KRUEGER: Thank you.
17 And our next testifier is
18 Stephen Hanse, New York State Health
19 Facilities Association.
20 MR. HANSE: Good evening, and thank
21 you.
22 My name is Stephen Hanse, and I have
23 the privilege of serving as president and CEO
24 of the New York State Health Facilities
738
1 Association and the New York State
2 Association for Assisted Living, a statewide
3 organization representing over 425 skilled
4 nursing and assisted living providers who are
5 not-for-profits, for-profits, and
6 government-sponsored facilities.
7 When it comes to the COVID-19 pandemic
8 and its impact on nursing homes and assisted
9 living providers, the focus must be placed
10 where it truly belongs: First, with the
11 virus itself; second, with the state's
12 hospital-centric approach to combating the
13 virus; third, to the state's over 12 years of
14 continuous nursing home Medicaid cuts; and
15 fourth, to New York's long-term-care
16 workforce crisis.
17 At the onset of the pandemic the state
18 failed to immediately focus fully on the
19 needs of nursing homes and assisted living
20 providers, and instead implemented a
21 hospital-centric approach that led to
22 severely limited access to testing and
23 extensive staffing and PPE shortages in
24 nursing homes.
739
1 The COVID-19 virus first appeared in
2 the United States at a nursing home in
3 Washington State, with devastating
4 consequences. New York disregarded this fact
5 and implemented its hospital-centric approach
6 to combating the virus, instead of focusing
7 on the people who are vulnerable to the
8 COVID-19 virus -- namely, nursing homes
9 residents.
10 Upwards of 90 percent of New York's
11 nursing home resident care is paid for by
12 Medicaid. However, the state has cut
13 Medicaid reimbursement to nursing homes for
14 over 12 years. And even in the middle of the
15 pandemic, the state cut Medicaid to nursing
16 homes, creating a $2 billion reimbursement
17 void that was only exacerbated by the state's
18 primary focus on hospitals throughout the
19 pandemic.
20 The statewide average cost of
21 providing around-the-clock nursing home care
22 is $266. However, the statewide average
23 Medicaid reimbursement for 24-hour care is
24 $211, resulting in nursing homes being
740
1 reimbursed $8.79 an hour to care for our most
2 vulnerable. This reimbursement is for
3 not-for-profit, for-profit and
4 government-sponsored facilities.
5 Prior to the COVID-19 pandemic, NYSHFA
6 was working with the Department of Health to
7 address the state's long-term-care workforce
8 crisis. The workforce shortage is well
9 documented. Nevertheless, New York has
10 failed to implement efforts to truly address
11 this crisis and recruit and retain women and
12 men into fulfilling careers in long-term
13 care.
14 And as we address the 2021-'22 state
15 budget, it is critical that the Legislature
16 and the Executive work in partnership with
17 nursing home providers and treat long-term
18 care as an investment, not an expense. In
19 looking at the 70/40 revenue proposal
20 advanced in the Legislature and by the
21 Governor, several issues must be addressed,
22 including specifying Medicaid revenue and
23 increasing the reimbursement rate to nursing
24 homes in order to make this proposal both
741
1 legal and feasible.
2 If the state is sincere about putting
3 residents first, the Legislature must
4 implement genuine reform that truly
5 safeguards nursing home residents and staff;
6 namely, increasing Medicaid reimbursement to
7 nursing homes and resolving the workforce
8 shortage crisis. Addressing these two issues
9 in the 2021-'22 enacted state budget will
10 truly benefit the men and women receiving
11 essential care in New York's nursing homes.
12 Thank you.
13 CHAIRWOMAN KRUEGER: Thank you.
14 Any questions?
15 CHAIRWOMAN WEINSTEIN: Assemblyman
16 Dilan.
17 CHAIRWOMAN KRUEGER: Okay.
18 Are you there, Erik? Ah.
19 ASSEMBLYMAN DILAN: Yeah, I'm here.
20 Just very quickly, to Bobbie Sackman,
21 you mentioned some items in your testimony
22 that are more legislative in nature. I'm
23 just asking if maybe, to spare the committee
24 time, if you'd reach out to me tomorrow so we
742
1 can discuss them.
2 And I just want to say, you know, I
3 loved working with you in a previous life.
4 We should reconnect and work together again.
5 Please reach out.
6 Thank you, Madam Chair.
7 MS. SACKMAN: Can I -- could I just
8 respond?
9 CHAIRWOMAN WEINSTEIN: Sure.
10 MS. SACKMAN: Thank you, Assemblyman.
11 It's really nice to see you as well. We are
12 seeking to include the pay -- pay -- oh, my
13 God, I'm so tired.
14 CHAIRWOMAN WEINSTEIN: Home care.
15 MS. SACKMAN: -- Fair Wages for Home
16 Care in the budget. So that's why I'm here
17 testifying.
18 ASSEMBLYMAN DILAN: Yeah, and that's
19 why I brought it up. Because the first thing
20 we worked on together in my previous life, my
21 first chairmanship as the senior center
22 subcommittee chairman in the Council, was
23 COLAs for senior center workers. And now I
24 see that all the social service workers who
743
1 take care of seniors automatically get COLAs,
2 and a lot of that happened because of the
3 work that you did.
4 So reach out tomorrow, we'll talk more
5 in-depth. And I'll give the chairs back
6 their time.
7 MS. SACKMAN: Will do. Thank you very
8 much.
9 ASSEMBLYMAN DILAN: And for the
10 chairs, just to let you know I'm always here
11 and always paying attention. And I'm very
12 quiet.
13 CHAIRWOMAN WEINSTEIN: Good. We
14 almost did a roll call before to see if
15 everybody was really here who's still logged
16 in.
17 (Laughter.)
18 CHAIRWOMAN KRUEGER: Yeah.
19 CHAIRWOMAN WEINSTEIN: We do have
20 Assemblyman Byrne for a question.
21 CHAIRWOMAN KRUEGER: Certainly.
22 ASSEMBLYMAN BYRNE: Yes, thank you,
23 Chairs.
24 And this is more directed to
744
1 Mr. Hanse, Steve. I asked this question when
2 some of the hospitals were giving their
3 testimony as well. The 30-day amendments
4 provide some significant changes that affect
5 adult care facilities, hospitals, nursing
6 homes, basically a lot of folks in the
7 healthcare industry -- some very significant
8 proposed fines and other changes.
9 I tend to think that this type of
10 discussion should be separate from the
11 budget, and I think it's a very steep
12 proposal. But I would like to just get your
13 comments and your thoughts.
14 MR. HANSE: Sure. Thank you,
15 Assemblyman.
16 Yes, many of the fines are increased
17 over 500 percent. Really when you look at
18 that approach, really, fines don't work in
19 terms of ensuring quality care.
20 And really when you look at all the
21 proposals, quite frankly, included in the
22 30-day amendments, they really don't speak to
23 quality care. They don't speak to the issues
24 that really face long-term care throughout
745
1 the pandemic. They're proposals that are
2 framed as resolutions, but they're really
3 not. You really need to look at the historic
4 underfunding of Medicaid and, quite frankly,
5 New York's long-term-care workforce crisis.
6 ASSEMBLYMAN BYRNE: Thank you, Steve.
7 And I would just echo the comments I
8 made earlier to Jim Clyne from LeadingAge, I
9 would share that with you too. I know
10 there's been a lot of conversation and
11 discussion about nursing homes, adult care in
12 general this year, and I think there's been
13 this stigma attached to it because of all the
14 conversations that we've had and some of the
15 things in the press.
16 And it certainly was not, you know, my
17 intention. And I do want to make sure I
18 thank, you know, all the workers, the
19 frontline workers that you do represent. It
20 is a very difficult job. It takes patience,
21 it takes a lot of dedication. And
22 particularly when you're going into an
23 atmosphere where, you know, this virus is
24 being spread everywhere, I just want to be
746
1 sure I made those comments as well.
2 So thank you.
3 MR. HANSE: Thank you, Assemblyman.
4 CHAIRWOMAN KRUEGER: Okay, thank you
5 all for being with us tonight. Appreciate
6 it. Take care, get home safe. Well, you're
7 probably home already, let's be --
8 (Overtalk.)
9 PANELISTS: Good night. Thank you.
10 CHAIRWOMAN KRUEGER: Good night,
11 thank you.
12 Our next panel is the national office
13 for the Nurse-Family Partnership,
14 Emily Frankel; the Association of Perinatal
15 Networks, LuAnne Brown; the Citizens'
16 Committee for Children, Alice Bufkin; and
17 certainly last but not least, Steve Sanders,
18 Agencies for Children's Therapy Services.
19 Okay. Everybody here? Emily, are you
20 here?
21 MS. FRANKEL: Yes.
22 CHAIRWOMAN KRUEGER: Why don't you
23 start us off.
24 MS. FRANKEL: Sure. Hi, everyone.
747
1 I'm Emily Frankel, the government affairs
2 manager for Nurse-Family Partnership. Thank
3 you so much for the opportunity to present
4 testimony today.
5 Nurse-Family Partnership is an
6 evidence-based home visiting program that
7 partners low-income, first-time-pregnant
8 women with a registered nurse from early in
9 pregnancy through the child's second
10 birthday. A portion of NFP's funding comes
11 from the state, thanks to the long-standing
12 support of the Legislature. We cannot thank
13 you enough for your partnership.
14 I come before you today, on behalf of
15 the 162 NFP nurses and the nearly
16 4,000 New York families they serve, to urge
17 you to reject the multitude of cuts facing
18 NFP in the Executive Budget.
19 First, there is a 20 percent cut to
20 NFP's DOH appropriation which reduces our
21 funding from $3 million to $2.4 million and
22 would reduce the number of families we
23 currently serve. We respectfully ask the
24 State Legislature to reject this cut.
748
1 The NFP programs in New York City and
2 Monroe County are facing an additional cut
3 through the Governor's 20 percent reduction
4 to the Community Optional Preventive Services
5 Program. COPS funding supports programs that
6 prevent at-risk children and youth from
7 entering the child welfare system.
8 The Governor's combined cuts to NFP's
9 line item and to COPS would lead to workforce
10 reductions of at least six nurse home
11 visitors for New York City's NFP program, as
12 well as at least 150 low-income families
13 would no longer receive NFP.
14 The Governor's third cut to NFP occurs
15 through a reduction to Article VI funding
16 from 20 to 10 percent. This would lead to
17 further workforce and service reductions for
18 NFP. Additionally, the 1 percent
19 across-the-board Medicaid cut would also
20 impact our programs who are authorized to
21 bill targeted case management.
22 NFP's capacity has already been
23 impacted by the 20 percent withholds on state
24 government contracts. To absorb this
749
1 reduction in funding, many programs
2 instituted hiring freezes for nurse
3 positions. Now is not the time to reduce
4 funding for vital programs like Nurse-Family
5 Partnership. NFP nurses support the very
6 populations that have been hit hardest by the
7 pandemic.
8 At the height of the pandemic, many of
9 our moms were unable to receive prenatal and
10 postpartum care due to the closure of medical
11 practices and clinics. Our nurses played a
12 critical role in filling these gaps in care.
13 Through regular telehealth visits, NFP nurses
14 were able to conduct clinical screenings and
15 assessments, identify and monitor medical
16 complications, and help their clients get the
17 healthcare that they needed.
18 If enacted, these Executive Budget
19 cuts will undermine the essential services
20 that NFP provides to low-income families. I
21 ask that you stand up for Nurse-Family
22 Partnership, our nurses, and the low-income
23 mothers and children we serve, and restore
24 our funding in the state budget.
750
1 Thank you very much.
2 CHAIRWOMAN KRUEGER: Thank you very
3 much.
4 Next, LuAnne Brown, from the
5 Association of Perinatal Networks.
6 MS. BROWN: Good evening. I'm LuAnne
7 Brown, CEO of Buffalo Perinatal Network and
8 chair of the Association of Perinatal
9 Networks, or APN. I also spent 30 years at
10 Women and Children's Hospital in Buffalo as a
11 nursing administrator, and my background is
12 in OB. So I have the experience of working
13 both in the healthcare system and the
14 community-based organizations.
15 Thank you for allowing me to present
16 on this panel as it relates to legislation
17 needed regarding child and maternal health as
18 well as addressing high maternal morbidity
19 and mortality.
20 APN is an umbrella organization of 16
21 perinatal networks and has focused on
22 maternal health for over 25 years. It
23 includes the Maternal-Infant Community Health
24 Collaborative, or MICHC, which works with
751
1 community health workers, or CHWs, and it's
2 funded by the Department of Health.
3 The perinatal networks and other MICHC
4 programs are organizations embedded in
5 communities across the state who interact
6 with the most vulnerable women and families
7 every day and advance perinatal health.
8 The focus of CHW maternal programs is
9 to ensure that women reach full-term
10 pregnancy through prenatal care attendance,
11 and it also assures enormous savings in
12 reduction in intensive-care nursery stays.
13 CHWs tend to be from the community that they
14 serve, and they share lived experiences as
15 clients, in addition to having an established
16 relationship with the community.
17 The Affordable Care Act has also
18 promoted the use of community health workers
19 within home visiting programs.
20 One recommendation from Governor
21 Cuomo's Women's Agenda to reduce maternal
22 mortality was to expand and enhance CHW
23 services. Due to this recommendation, cuts
24 from the previous two years were restored so
752
1 programs could return to their baseline
2 staffing.
3 Interestingly, in the rest of the
4 world 20 percent of resources are dedicated
5 to medical services, and 80 percent to social
6 supports, while in the United States this is
7 reversed. We are of the belief that we can
8 realign our priorities and prevent medical
9 complications, which is much more
10 cost-effective.
11 Listening sessions coordinated by the
12 Department of Health in 2018 gathered women
13 from around the state to gather their
14 thoughts on their birth experience, and one
15 woman stated: "I wouldn't have made it
16 without my CHW." We feel the CHW model
17 should be a universal option for all women.
18 So based on this information, many of
19 these programs are subject to the state
20 20 percent withhold, which began last April,
21 even though our programs are not involved
22 with Medicaid. These were for services we
23 had already provided, and we're hitting our
24 one-year mark. We're requesting that the
753
1 COVID-19 funds being clawed back from managed
2 care and MLTC be earmarked for our agencies
3 rather than swept away from the budget.
4 We would like to introduce legislation
5 that allows reimbursement of CHW services, as
6 other states have done. High-risk zip codes
7 could be targeted if global funding was not
8 available. And we also recommend that CHWs
9 be integrated into health homes and Medicaid
10 managed care plans, care models and care
11 teams.
12 Thank you very much.
13 CHAIRWOMAN KRUEGER: Thank you very
14 much.
15 Our next speaker is with the Citizens'
16 Committee for Children, Alice Bufkin,
17 director of policy for child and adolescent
18 health.
19 MS. BUFKIN: Good evening. Thank you
20 to the chairs and the committee members and
21 all of your staff for the opportunity to
22 testify today, especially for sticking around
23 so late in the evening.
24 My name is Alice Bufkin, and I am the
754
1 director of policy for child and adolescent
2 health at Citizens' Committee for Children, a
3 multi-issue children's advocacy organization
4 dedicated to ensuring every New York child is
5 healthy, housed, educated and safe.
6 I want to focus my testimony on a
7 handful of issues we find critically
8 important as children and families approach a
9 year of surviving this pandemic.
10 First, I echo many before me in
11 opposing the many cuts and cost shifts in the
12 Executive Budget that will severely harm the
13 state's public health infrastructure and its
14 ability to recover. We oppose cuts to the
15 safety-net hospitals, including the proposed
16 elimination of the state's share of the
17 Indigent Care Pool, as well as proposed cuts
18 to enhanced safety-net facilities.
19 Moreover, we oppose the reduction to
20 the state's share of New York City's
21 Article VI program. Of the more than
22 4,000 children who have lost a parent or a
23 guardian to the virus, 57 percent have been
24 in the Bronx, Brooklyn or Queens. Cuts to
755
1 New York City's Article VI services impact
2 programs providing immunizations, lead
3 testing, tuberculosis services, maternal and
4 child health, mental health, chronic diseases
5 and many other areas.
6 There are no federal resources sitting
7 untapped that can simply replace the
8 collective damage of those cuts. We must
9 fully restore state reimbursement to
10 36 percent. And, more broadly, we cannot cut
11 public health funding in the middle of a
12 public health crisis.
13 Additionally, we urge the state to
14 reject cuts to the Nurse-Family Partnership,
15 as you just heard about, and to take urgent
16 steps to address children's behavioral health
17 challenges that have been exacerbated by
18 COVID-19. Children have faced a year of loss
19 of loved ones, of illness, economic
20 insecurity, disrupted learning, isolation,
21 anxiety. Mental health needs are rising,
22 access to care has declined, and the result
23 has been a surge in children in psychiatric
24 distress, hospitalizations, and families left
756
1 on wait lists desperate for care.
2 To begin to address this, New York
3 must start by rejecting the proposal to
4 remove $22 million from Community Mental
5 Health reinvestment. Those are funds that
6 are desperately needed now more than ever.
7 The state must also reject cuts to local
8 assistance, which will harm the behavioral
9 health sector, among other sectors.
10 We also urge passage of legislation
11 sponsored by Senator Rivera and
12 Assemblymember Gottfried that will enable
13 coverage of children and family treatment and
14 support services in the CHP program, moving
15 us closer to parity between Medicaid and CHP.
16 More generally, we believe the state
17 must invest in a full continuum of behavioral
18 health supports for children, putting them in
19 early care and education settings, in schools
20 and in communities to combat the effects of
21 existing and exacerbated trauma.
22 Lastly, I want to address the serious
23 challenges facing children in the Early
24 Intervention Program. After years of
757
1 inadequate rates, we are now seeing the
2 compounded impact of COVID-19. In June 2020
3 the number of EI providers was down
4 15 percent compared to 2019. The number of
5 children enrolled in EI is at its lowest
6 point since 2013, and the number of EI claims
7 has dropped 29 percent.
8 We strongly oppose the $13.7 million
9 reduction to EI in the Executive Budget. We
10 also urge, instead, the state to enact a
11 covered lives proposal which would assess
12 $40 million from commercial insurers and
13 reinvest those funds back into the EI system.
14 I want to thank Chair Cahill for
15 bringing this up, because commercial insurers
16 overwhelmingly deny claims for services
17 children need, putting the burden and costs
18 on providers and the state. It's time they
19 pay their fair share and time we prioritize
20 the needs of children, young children with
21 developmental delays and disabilities.
22 And I just want to address the
23 question Senator Rivera raised earlier. We
24 do support the elimination of the global cap,
758
1 and we do support identifying revenue options
2 to prevent cuts.
3 Again, I want to thank you all so much
4 for your time and truly thank you for your
5 championing of issues that impact children
6 and families. Thank you.
7 CHAIRWOMAN KRUEGER: Thank you. And
8 then Agencies for Children's Therapy
9 Services, Assemblymember Steve Sanders.
10 MR. SANDERS: Thank you very much,
11 Chair Krueger, good friend Chairwoman
12 Weinstein, good friend, colleague Chairman
13 Kevin Cahill, the great Kevin Cahill,
14 Chairman Rivera, all the ranking members who
15 are still here, and all the members who have
16 sat through now, what, is 12 hours of this
17 budget hearing. You are all heroes.
18 Heroines and heroes.
19 (Laughter.)
20 MR. SANDERS: I did that for a number
21 of years, but not to the extent that you all
22 are doing it this year. So I really
23 appreciate all the work you've put in, and
24 your staff.
759
1 And whoever decided that Alice should
2 speak before me was prescient. Thank you for
3 those comments, Alice, about Early
4 Intervention. And so here's the perfect
5 segue. I represent the agencies that provide
6 Early Intervention services to 70,000
7 learning disabled or developmentally disabled
8 children every year.
9 The Governor has made three proposals
10 this year that impact Early Intervention.
11 None of them are good. They either reduce
12 services to children or they reduce rates for
13 teletherapy. At the same time that we're
14 trying to promote teletherapy as the new
15 medium to reach many more people around the
16 state, the Governor proposes to cut the rates
17 for teletherapy. It's a bad idea.
18 There's a better idea, and Alice
19 touched on it, and I want to amplify on her
20 remarks. Covered lives. This was a proposal
21 that the Assembly and the Senate included in
22 its one-house bills last year.
23 The fact of the matter is that for the
24 entire entirety of the Early Intervention
760
1 Program, commercial insurance has failed to
2 pay its fair share. As Kevin Cahill
3 mentioned earlier today, they pay 2 percent
4 of the program. Two percent. They paid
5 2 percent 10 years ago, they paid 2 percent
6 20 years ago, and they'll continue to pay
7 2 percent no matter what reforms we try to
8 initiate. They continue to evade their
9 responsibility to pay their fair share.
10 What does that mean? That means the
11 state and counties subsidize all of the
12 claims that commercial insurance rejects.
13 They reject 85 percent of the claims that
14 they receive each year. The way to generate
15 more money, save money for the counties, save
16 money for the state, have commercial
17 insurance finally pay its proportionate fair
18 share, is to cover the Early Intervention
19 Program under the covered lives program.
20 It will save money for the state and
21 counties, and finally commercial insurance
22 will be paying their fair share and we won't
23 have to reduce rates and we won't have to
24 effect cuts.
761
1 So I thank you for your time. I thank
2 you for all of your efforts this year, a very
3 tough year, and all the years that you've
4 been working to improve the Early
5 Intervention Program. Thank you all.
6 CHAIRWOMAN KRUEGER: Thank you.
7 Anyone want to ask a question?
8 CHAIRWOMAN WEINSTEIN: Yes,
9 Assemblyman Abinanti has raised his hand, so
10 let's go to him.
11 CHAIRWOMAN KRUEGER: Okay. You're on,
12 Tom.
13 CHAIRWOMAN WEINSTEIN: Tom? Go ahead.
14 CHAIRWOMAN KRUEGER: Get off of mute.
15 ASSEMBLYMAN ABINANTI: I'm trying.
16 There we go. I clicked that button several
17 times, but okay.
18 I just want to thank Alice and --
19 where's Assemblyman -- there he is, there's
20 Steve over there. I want to thank both of
21 you for staying around so long and
22 highlighting an issue that really needs to be
23 highlighted, the whole issue of Early
24 Intervention.
762
1 The Governor has tried to use an
2 attempt to get commercial insurance to pay
3 for part of Early Intervention as an excuse
4 to do all kinds of, quote, reforms. And they
5 really are just excuses to cut state support
6 for Early Intervention. Which is really
7 foolish, as we all know, because Early
8 Intervention is a program that gets kids when
9 they can be most helped.
10 When I was a county legislator, we
11 were -- the county was subsidizing it and the
12 counties tried to get out of the
13 responsibility for running the programs or
14 administering them, and the Governor then
15 substituted this other thing that we have out
16 there now, some kind of fiscal agent or
17 something like that. None of this has
18 worked. Your proposal for covered lives is
19 the way to go, and I thank you for raising
20 it, for both of you.
21 I just want to ask, what is the status
22 of the field these days? And I mean we
23 haven't had a report on how the fiscal
24 intermediary is working. Or is it working?
763
1 Can either of you comment on that and tell us
2 what's happening there?
3 MR. SANDERS: Well, I can give you a
4 little bit of comment.
5 When the state fiscal agent was
6 contracted for, I think back in 2013, one of
7 the stated goals was to improve the recovery
8 of money from commercial insurance. They
9 were paying 2 percent of the grand total,
10 about a $700 million Early Intervention
11 Program. And if you use that as a metric for
12 whether they've been successful or not, and
13 you fast forward now eight years, commercial
14 insurance is still paying 2 percent.
15 ASSEMBLYMAN ABINANTI: And now we're
16 paying this fiscal intermediary -- this
17 fiscal agent to do paperwork?
18 MR. SANDERS: Well, the fiscal agent
19 is paid for a lot of purposes, administrative
20 purposes, but it doesn't appear that they've
21 been successful in being able to retrieve
22 more money from commercial insurance.
23 Now, I would just add this. Aside
24 from the fact that we -- I think we should
764
1 all be insulted a little bit by the fact that
2 commercial insurance every year rejects
3 85 percent of the claims that are submitted
4 to commercial insurance. If that wasn't bad
5 enough, they leave the counties and the state
6 to subsidize the expenses. Because whatever
7 commercial insurance rejects, the state and
8 counties have to pay 50 percent each.
9 So we're paying for what commercial
10 insurance has refused to pay all these years.
11 ASSEMBLYMAN ABINANTI: Madam Chair,
12 can I follow up with one question, very
13 brief?
14 Has the problem that we saw over the
15 years, that the fiscal agent wasn't paying
16 the Early Intervention providers timely, has
17 that problem been solved?
18 MR. SANDERS: It's better than it was
19 seven or eight years ago. But when a
20 provider submits a claim that would go to
21 commercial insurance, it goes through a whole
22 rigmarole, which is so unnecessary. It has
23 to be adjudicated by commercial insurance.
24 That costs them time and money.
765
1 Ultimately, with all of that effort,
2 sometimes a lot of back-and-forth between
3 insurance companies and early intervention
4 agencies, at the end of the day insurance is
5 going to reject 85 percent of the claims.
6 They do that now, they did that last year,
7 they'll do that next year, no matter what
8 kinds of other reforms we try to put into
9 place. So --
10 ASSEMBLYMAN ABINANTI: Thank you.
11 CHAIRWOMAN WEINSTEIN: Let's move on.
12 You have a number of members who have raised
13 their hand. Tom, you got people interested.
14 Assemblyman Cahill.
15 ASSEMBLYMAN CAHILL: Thanks so much.
16 And I just want to tell you when I
17 listened to your testimony, this entire panel
18 but especially my dear and long-time friend
19 Steve Sanders, I really get a lump in my
20 throat because you're talking about taking
21 care of children from the womb right on up to
22 the time when they can start to maybe take
23 care of themselves.
24 And you're talking about needs that
766
1 have existed for a very long time, but also
2 the one area that we know that if we invest,
3 if we invest, we will create productive
4 tax-paying adults who will contribute back to
5 society. We will invest in creating
6 independence. We will invest in creating
7 great students and, who knows, maybe the next
8 Einstein. We don't know what's out there.
9 And thank you all for the good work that you
10 do.
11 Steve, I have a slightly different
12 take on what New York State is doing with our
13 providers. I don't want anybody to walk away
14 thinking that the providers are just dealing
15 with the big bad insurance companies. A lot
16 of the claims that are denied are denied
17 because they're not covered by health
18 insurance. And health insurance only covers
19 what health insurance covers.
20 That doesn't stop the State of
21 New York from forcing providers to pursue
22 health insurance. It doesn't stop them from
23 forcing them to pursue claims that cannot
24 ever be paid. But what it does force them to
767
1 do also is to take that meager little payment
2 that they get for the service, for early
3 childhood intervention services, and divide
4 it between actually taking care of a child
5 and bill collecting.
6 And all for what? At the end of the
7 day, it's not that the provider is going to
8 get more for that, it's that the state is
9 going to get less -- have less of a
10 responsibility for it. It is immoral. We
11 need to fix it.
12 I want to thank you all again for your
13 tenacity in sticking around for this long
14 time. I did -- I was able to extract from
15 the superintendent this morning a commitment
16 to take a serious look at this issue. I am
17 surprised, but she acted as if she didn't
18 know much about it, but she expressed a
19 willingness to learn. And I'm certainly sure
20 that you are entirely capable of teaching
21 her.
22 So with that, I would welcome you
23 using my last 40 seconds for any comments you
24 want to make. But I know the chairs would
768
1 rather I just say thank you and drop the mic.
2 Thanks, everybody.
3 MR. SANDERS: I think it's we who
4 thank you.
5 CHAIRWOMAN WEINSTEIN: Thank you. So
6 we're going to go to Assemblywoman Solages.
7 SENATOR RIVERA: I think she might
8 have left.
9 ASSEMBLYMAN ABINANTI: Oh, no, she's
10 here.
11 ASSEMBLYWOMAN SOLAGES: I'm back.
12 (Laughter; cross-talk.)
13 ASSEMBLYWOMAN SOLAGES: Abinanti woke
14 me up.
15 So I just want to thank all the
16 panelists. You know, the saying goes that
17 it's easier to build strong children than to
18 repair broken men. And so I thank you for
19 what you're doing.
20 And we know that pandemic life may
21 have lasting effect on our babies, but it's
22 even taking a greater toll on our parents.
23 So these programs that you have provided that
24 holistic approach of, you know, ensuring that
769
1 families are, you know, protected. And so as
2 a state we should commit to protecting these
3 essential health and behavioral services and
4 supports and make targeted investments. So,
5 you know, I thank you all.
6 And especially to NFP, I've seen
7 firsthand that this program really has
8 supported those who have been hardest hit.
9 There was a panel -- a roundtable in which I
10 heard many of the nurses talk about how they
11 had to be furloughed or there were many cuts
12 and their colleagues were laid off.
13 And so I know that the budget
14 basically, essentially is going to dismantle
15 NFP in two major locations. But will it
16 destabilize I guess the whole network that we
17 took so long -- you know, NFP took so long to
18 build?
19 MS. FRANKEL: Thank you so much,
20 Assemblywoman Solages, for your support.
21 That's my concern. I mean, we're
22 seeing -- we've already had one closure in
23 Cayuga County. We don't know where the --
24 when the cuts are going to stop. You know,
770
1 on top of the withholds, if there are going
2 to be more in the future. There's a lot of
3 uncertainty.
4 And I am concerned, especially where
5 we have county health departments, especially
6 in upstate New York, that they're also
7 responding to the pandemic. So we have NFP
8 nurses that are working three days a week on
9 NFP and two days a week they're working to
10 provide vaccines. The same thing in our
11 New York City implementation.
12 So I don't know. I can't answer that.
13 But it doesn't look good right now.
14 ASSEMBLYWOMAN SOLAGES: How about for
15 any of the other panelists, is this going to
16 destabilize programs that took so long to
17 implement?
18 MS. BUFKIN: I will say on the -- oh,
19 I'm sorry, go ahead, LuAnne.
20 MS. BROWN: Yeah, I mean we've been --
21 Buffalo Prenatal's been in existence for
22 25 years and, you know, we had -- we also
23 have a Healthy Families Program, which is
24 another important program. And that program
771
1 has taken a huge hit. I had to lay off seven
2 people in September. So that's 200 families
3 that are impacted.
4 And, you know, most of these programs,
5 whether it's Nurse-Family Partnership or
6 Healthy Families or community health workers,
7 we're the only support some of these families
8 have. I mean, they're estranged from their
9 families, they don't get any support except
10 from us.
11 So despite COVID going on -- and as
12 usual, nonprofits were the ones to step up in
13 these type of programs, and we were out
14 there -- we did a food pantry, we were
15 delivering food and diapers to our clients.
16 And these are the programs they decided they
17 want to withhold.
18 So it's very frustrating, I guess,
19 because I see my staff working really hard
20 and my clients being impacted. And I just
21 think, you know, as someone mentioned, this
22 is the beginning of life here. This is where
23 you're starting to build a healthy adult.
24 And when you impact those programs, you
772
1 impact these adults that can be valuable to
2 communities.
3 CHAIRWOMAN KRUEGER: Well, I also just
4 want to thank you all for your work. And
5 many of you and your organizations have been
6 educators of mine for years.
7 And there's no doubt about it, if we
8 invest in the earliest time from pregnancy
9 through a child's really fifth year of life,
10 you can pretty much be assured things are
11 going to go okay. And if you screw it up in
12 the first five years, you can pretty much be
13 assured from a government perspective you're
14 going to have to spend a whole lot more money
15 for, as the Assemblymember just said, the
16 broken adults that you end up with.
17 So we know what the answers are, and
18 they're very inexpensive. And so it's
19 infuriating when we see ourselves going
20 backwards this way.
21 And I just also want to give a shout
22 out to Citizens' Committee for Children, who
23 we know very well down in New York City, but
24 the rest of the state may not know them. But
773
1 this year I think is the first year they put
2 out a statistical book that covers every
3 county in New York State for poverty data and
4 other indicators. And when you're a
5 legislator and you're trying to see what's
6 going on in your area or how you're doing in
7 comparison to other areas, that kind of data
8 that's statewide but broken down in ways you
9 can use it can be very, very valuable.
10 So I'm sure that the Citizens'
11 Committee for Children would be happy to get
12 you those copies of those books. Am I right?
13 MS. BUFKIN: Absolutely.
14 CHAIRWOMAN KRUEGER: Oh, good, okay.
15 I was telling them you wanted to give them
16 the books.
17 MS. BUFKIN: I would be very happy to
18 get that to anyone.
19 CHAIRWOMAN KRUEGER: That would be
20 great.
21 MS. BUFKIN: Thank you so much for
22 bringing that up.
23 CHAIRWOMAN KRUEGER: Thank you.
24 All right --
774
1 CHAIRWOMAN WEINSTEIN: We still have
2 another Assemblymember.
3 CHAIRWOMAN KRUEGER: Oh, you do?
4 CHAIRWOMAN WEINSTEIN: Yes,
5 Assemblyman Jensen.
6 ASSEMBLYMAN JENSEN: Thank you very
7 much. I'll be much briefer than I have in
8 the past.
9 I just wanted to echo Misters Abinanti
10 and Cahill and just thank our Early
11 Intervention advocates. Certainly I know
12 firsthand how critically important those
13 services are. I didn't speak until I was
14 five, I had speech impediments, speech delay.
15 And I know for sure that I wouldn't be doing
16 this if it wasn't for the Early Intervention
17 services that I had. And I certainly
18 wouldn't be able to use my voice to speak on
19 behalf of those I serve in my community.
20 So just thank you to our advocates,
21 not just in Early Intervention but, like what
22 Member Solages said, and Chair Krueger, thank
23 you for everybody who's advocating right from
24 birth through -- right into older ages. So
775
1 thank you.
2 CHAIRWOMAN KRUEGER: Thank you.
3 All right. We covered everybody now?
4 Oh, wait, I see -- wait, are you raising your
5 hand, Gustavo? No. But Josh Jensen might
6 have been raising his hand, I wasn't sure.
7 CHAIRWOMAN WEINSTEIN: No, he's done.
8 We're done.
9 CHAIRWOMAN KRUEGER: Fine. Okay.
10 Thank you, panel. Greatly appreciate your
11 hard work and being with us this evening.
12 And we're moving on to -- I know you
13 can't believe this, but the last panel of the
14 last hearing.
15 SENATOR RIVERA: Sign me up for two
16 rounds, please. Sign me up for two rounds of
17 questions.
18 (Laughter.)
19 CHAIRWOMAN KRUEGER: Sit down, relax,
20 Gustavo Rivera.
21 All right. So certainly not the
22 least, but appreciate everybody waiting this
23 long with us. Clerical-Administrative
24 Employees Local 1549, Ralph Palladino,
776
1 2nd vice president; New York State Nurses
2 Association, Judith Cutchin, president,
3 New York City; and Feeding New York State,
4 Dan Egan, executive director.
5 Health and food, what a better way to
6 chose out the evening.
7 Good evening. Hi. Let's see, shall
8 we start with you, Ralph? You have to turn
9 on your voice.
10 MR. PALLADINO: Oh, yes. Hi.
11 CHAIRWOMAN KRUEGER: Hi.
12 MR. PALLADINO: Good evening. Good
13 evening.
14 Yes, Local -- thank you, by the way.
15 Local 1549 has 14,000 members working for the
16 City of New York, 5,000 of whom work in the
17 New York City Health + Hospitals and Metro
18 Plus HMO.
19 So we think that the principles that
20 the state should be following in budgeting
21 for safety-net hospitals is the following.
22 One, Medicaid dollars should follow where the
23 Medicaid patients are. Two, Medicaid
24 reimbursement rates should be based on true
777
1 cost of care. Three, fairness in
2 distribution of funds to care for the
3 indigent patients is a must. Sadly, this
4 Executive Budget fails on all three.
5 Specifically, what we need to do in
6 terms of what we're asking for is that we
7 have no Medicaid cuts for safety-net
8 hospitals as defined by Public Law
9 2807-c(34). Funding should be increased.
10 And with that, we should also end the
11 global cap, which in practice means less
12 services and less staff -- and also, I might
13 add, leads to the overuse, as it does in
14 hospitals where we are, of the exploitative
15 temp agencies for contracting out. That is
16 very bad.
17 Two, reject the proposed shift in the
18 share from state to localities for the
19 indigent care pools. New York City has
20 already stepped up with billions of dollars
21 in support over the last number of years,
22 after 16 years of cuts by former mayors. The
23 city itself is facing a huge deficit already,
24 and we are short-staffed in every agency,
778
1 including the police department. And I say
2 clericals in the police department, 911.
3 The city itself is facing a huge
4 deficit, so how could we possibly take up the
5 ICP payments? This amounts to a cut. It's
6 not going to happen.
7 Now, New York City Health + Hospitals
8 and Metro Plus are public and proud. Health
9 + Hospitals had a $100 million cut from its
10 budget and lost $1.2 billion from the COVID
11 war. How could we distribute the cuts we --
12 I'm sorry. How could we absorb the cuts?
13 How could we serve the poorest communities
14 with the greatest disparities in care? Who
15 will do that but us?
16 People should not pay lip service to
17 this severe, long-standing problem. They
18 should pay with proper funding to end it.
19 And we should be -- Medicaid is an economic
20 engine for communities, it raises revenues.
21 Investing in care for high disparities means
22 healthier and less future costs for sicker
23 patients. And we need to tax the rich, as
24 the New York coalition says.
779
1 CHAIRWOMAN KRUEGER: Thank you. Your
2 time just ended. Well done.
3 Thank you. Our next speaker is Judith
4 Cutchin, the president of the New York Nurses
5 Association. Good evening, Judith.
6 MS. CUTCHIN: Hi, good evening. Thank
7 you for allowing me the time to testify. My
8 name is Judith Cutchin, and I am testifying
9 on behalf of the New York Nurses Association.
10 I am director at large of the New York State
11 Nurses Association board of directors and the
12 president of the Health + Hospitals Mayoral
13 Executive Council, the largest NYSNA unit,
14 representing almost 10,000 of our total
15 membership of 44,000 nurses.
16 We have submitted our full testimony
17 on the proposed budget items related to
18 healthcare, but I want to focus on three
19 critical issues in my testimony today.
20 First, we think it is outrageous that
21 the budget is considering hundreds of
22 millions in cuts to hospitals and other
23 health services in the middle of an ongoing
24 pandemic. We should not be cutting. We
780
1 should be increasing funding to build up our
2 public health infrastructure to be able to
3 deal with COVID and future health
4 emergencies.
5 In addition, we should be expanding
6 funding for our hospitals and other providers
7 in the front-line fight against the pandemic.
8 We should also be providing more funding for
9 Medicaid to cover uninsured people, including
10 undocumented workers.
11 Second, we should be implementing
12 minimum staffing standards for all hospitals
13 and nursing homes. In my hospital we saw
14 firsthand that we did not have enough staff
15 to provide care that patients needed, and
16 that contributed to higher death tolls in all
17 of our hospitals and, as it was noted by the
18 Attorney General's report, in our nursing
19 homes.
20 Establishing minimum staffing
21 standards is also vital to addressing racial
22 and economic disparities in care. Richly
23 funded private hospitals with more staffing
24 had more PPE and other equipment than the
781
1 public and other private-sector hospitals.
2 Those disparities have a devastating impact
3 on the communities of color and low-income
4 patients that safety-net hospitals serve.
5 Minimum staffing standards are a first
6 step towards addressing inequalities and
7 inequities in healthcare.
8 Finally, where we have to provide
9 increased funding for enhanced safety-net
10 hospitals and other safety-net hospitals. We
11 should be increasing ICP and DSH funding for
12 these hospitals, increasing their Medicaid
13 reimbursement rates to reflect their
14 disproportionate share of these patients.
15 Now is not the time for business as
16 usual in addressing our healthcare budget
17 gaps. We need to take bold action to
18 increase spending, mandate minimum staffing
19 standards, and target extra funding to our
20 safety net. Instead of cutting costs, the
21 budget must be balanced and vital social
22 service spending must be increased by raising
23 taxes on the wealthiest New Yorkers,
24 Wall Street investors and corporations that
782
1 have gotten richer during this crisis.
2 The Legislature needs to rise to the
3 occasion. We are in a serious crisis, and we
4 need to act like it.
5 Thank you very much for allowing me to
6 speak. Thank you.
7 CHAIRWOMAN KRUEGER: Thank you very
8 much.
9 And our last speaker, Dan Egan from
10 Feeding New York State.
11 MR. EGAN: Thank you all, Senators and
12 Assemblymembers, for staying with us to work
13 so late into the evening. We really
14 appreciate your hard work and the care you've
15 shown for the health of the people of our
16 state. I applaud your endurance, and I will
17 try to talk fast.
18 Last year when I was here I said that
19 every county in New York is home to people
20 who cannot afford adequate food, and it's
21 about to get worse. I wish I had been wrong.
22 Last year over 2.2 million New Yorkers were
23 food-insecure. This year, right now, over
24 3 million New Yorkers are food-insecure.
783
1 That's a 46 percent increase in need.
2 Please remember that number. In some
3 communities it's a lot higher. You've all
4 seen the lines of people waiting.
5 I want to talk to you about a
6 different line, the line of wasted food.
7 Even as we have millions of New Yorkers going
8 hungry, we are wasting perfectly good food --
9 1.2 billion pounds of produce are being
10 wasted every year, never even leaving the
11 farm because it has no market. The farmers
12 did their jobs; the market failed.
13 You might ask, what does 1.2 billion
14 pounds of foods look like? That amount of
15 food would fill 30,000 tractor trailers. If
16 you park those tractor trailers end to end,
17 bumper to bumper, one behind the other, that
18 line of trucks would stretch from Montauk to
19 Buffalo, 450 miles of food being thrown out.
20 You didn't see that line in the media,
21 but you need to be aware of that. In a
22 normal year, the year before COVID, the
23 10 food banks of Feeding New York State
24 distributed over 250 million pounds of food.
784
1 So far, in the first 10 months of the
2 pandemic, we've distributed 397 million
3 pounds, a 62 percent increase.
4 We are prepared to do more. We expect
5 and need to do more over the next few years.
6 I'm asking you for three things to help us
7 out.
8 First, HPNAP. It's a great program.
9 It funds critical operational costs for us.
10 It's been funded flat for quite a few years.
11 The Executive Budget proposes $34.5 million.
12 In recent years the Legislature has restored
13 500,000 to fund that program at 35 million
14 annually. We're thankful for that support.
15 We ask you to restore that again.
16 But beyond that, recall that the need
17 for food is up 46 percent. A proportionate
18 increase in HPNAP would add 16 million for a
19 total funding level of $51 million.
20 Second, I think you all know what a
21 fantastic program Nourish New York has been.
22 We've supported over 4,000 New York farms
23 while providing over 17 million pounds of
24 food. We applaud Senator Hinchey and
785
1 Senator Borrello for introducing Senate bill
2 S4892, which establishes Nourish New York as
3 a state program.
4 It is essential that Nourish New York
5 continue, and we request 100 million be
6 allocated to Nourish New York this year and
7 the program be put on a permanent basis.
8 Third, the Department of Environmental
9 Conservation is responsible for the Food
10 Scraps Law, and we ask that they be funded
11 adequately so that we can help them
12 administer the execution of that law.
13 I just want to conclude I hope
14 everyone understands from all this we have
15 all the resources we need to solve the
16 problem of hunger. All I ask is that you let
17 us use them.
18 CHAIRWOMAN WEINSTEIN: Thank you.
19 CHAIRWOMAN KRUEGER: Thank you.
20 Any Senators? Assemblymembers?
21 CHAIRWOMAN WEINSTEIN: Yes. We have
22 Assemblyman Abinanti and then
23 Assemblyman Jensen to follow.
24 CHAIRWOMAN KRUEGER: Okay.
786
1 ASSEMBLYMAN ABINANTI: Okay, thank you
2 to the three of you.
3 I'd like to address the last gentleman
4 who just spoke. I thank you for raising the
5 issue of food insecurity or, put in common
6 language, hunger. When a kid goes to school
7 without having had breakfast, he's not
8 thinking food insecurity, he's just hungry.
9 So we appreciate very much your
10 raising that issue with us. That's really a
11 health issue.
12 You discussed the Food Scraps Law. I
13 would just like to note that there was just
14 an amendment to that, a bill that I sponsored
15 and Peter Harckham sponsored in the Senate.
16 The Governor just signed the bill. It's
17 going into effect immediately. What it does
18 is set up a mechanism for the largest
19 supermarkets to provide food to our food
20 banks.
21 It's only going to be a small piece of
22 the entire puzzle of trying to resolve this
23 issue, but it is something that's there. And
24 your asking for more money to make sure that
787
1 this program works is a very good request.
2 So thank you for raising that.
3 And thank you to all of you, and thank
4 you to the entire -- to the chairs, who spent
5 the entire day doing this. I admit I've
6 jumped off several times to do several other
7 Zooms, attended some other meetings. But you
8 guys have -- you know, you've been there all
9 day, so thank you for carrying the ball for
10 us, for the chairs and the ranking members.
11 You guys sat here and heard it all, so thank
12 you very much for doing this on all of our
13 behalfs.
14 MR. PALLADINO: Assemblyman, can I
15 just say to you -- thank you for bringing up
16 food. I just want to remind you, the SNAP
17 program -- the importance of the SNAP
18 program. It's also there, and it's also an
19 economic engine for the state. So let's not
20 forget that too.
21 But thank you for saying that.
22 CHAIRWOMAN KRUEGER: And there was one
23 more Assembly person?
24 CHAIRWOMAN WEINSTEIN: Yes,
788
1 Assemblyman Jensen to close, I believe.
2 ASSEMBLYMAN JENSEN: Thank you very
3 much.
4 Just very quickly to Mr. Egan, I know
5 another food initiative that you didn't
6 mention was the Ugly Food Initiative. I know
7 it's a pilot program in the Mid-Hudson
8 region.
9 Do you think that's going to be a
10 viable program to go statewide to get some of
11 those more -- less desirable pieces of
12 produce to folks who are food-insecure?
13 MR. EGAN: Thank you. It may be. I
14 think it remains to be seen.
15 I would just add to that that there's
16 top-quality produce that's not even being
17 harvested. So what we need is the tools to
18 get that to the people who need it.
19 ASSEMBLYMAN JENSEN: Thank you,
20 Mr. Egan.
21 And just to echo my colleague, it's
22 been an honor to spend the day with the
23 chairs and the rankers and my colleagues in
24 the Assembly and the Senate. So thank you,
789
1 everybody.
2 CHAIRWOMAN KRUEGER: Thank you.
3 MR. EGAN: Thank you.
4 CHAIRWOMAN KRUEGER: So I think in
5 closing I also want to thank all three of
6 you. I mean, obviously the inequities of
7 Medicaid funding and the importance of the
8 safety-net hospitals, Ralph, were the theme
9 of, you know, almost the whole day, for
10 obvious reasons.
11 For the Nurses Association, I hope you
12 heard the testimony of the researcher from
13 the University of Pennsylvania. We have the
14 right nurse match, and we save people's
15 lives. It's as simple as that. You can
16 actually look at the numbers and see it.
17 So personally I can't thank both of
18 your members enough for the work that they
19 are doing during this pandemic every day.
20 And I don't even know how you can communicate
21 to them how much we really are aware of what
22 they are doing and the critical role they
23 play, and can't imagine that we would be
24 getting through this pandemic without them
790
1 there every day.
2 So thank you, thank you.
3 MR. PALLADINO: Thank you.
4 MS. CUTCHIN: Thank you.
5 MR. PALLADINO: Can I say one thing to
6 you, Madam Chair?
7 CHAIRWOMAN KRUEGER: Certainly.
8 MR. PALLADINO: I just remember being
9 many years ago someplace on the east side of
10 Manhattan on Election Day with all these
11 young people, and there was like a revolution
12 going on. And, you know, whatever happened
13 that night on Election Night, it was a damn
14 good choice. Thank you.
15 (Laughter.)
16 CHAIRWOMAN KRUEGER: Thank you for
17 being there.
18 (Laughter.)
19 SENATOR RIVERA: Closing time
20 (singing).
21 (Laughter; overtalk.)
22 SENATOR RIVERA: (Singing.) So finish
23 your whiskey or beer.
24 CHAIRWOMAN WEINSTEIN: Okay, I think
791
1 it's time to go.
2 SENATOR RIVERA: (Continuing to sing.)
3 CHAIRWOMAN KRUEGER: -- I've been out
4 doing anti-hunger work from before I jumped
5 into politics, and so I couldn't be happier
6 that you were there and being able to build
7 systems when we need them. The Nourish
8 New York system, it's a win/win/win, just
9 like SNAP is. Right? It's money to make
10 sure that farmers can hire workers to pick
11 the crops, so more people get jobs and the
12 crops get delivered then to food banks for
13 distribution to hungry people in need.
14 And we see a federal government that's
15 taking these issues more seriously also.
16 Thank goodness.
17 And yes, I am not going to take up any
18 more time. This is now the official end of
19 the last budget hearing for this year on the
20 Governor's Executive Budget. I want to thank
21 all the staff people behind the scenes from
22 the Senate and the Assembly for all the work
23 you did to make this all look like it was
24 smooth and easy.
792
1 I want to thank so much my chairs and
2 my rankers on every hearing, but particularly
3 Helene Weinstein, who -- you know, with a
4 smile on our faces, we got up every day and
5 said, I don't know how this one's going to
6 work out, but we'll get through it. And we
7 did, with pride. And we let the public see
8 more and more of how government tries to do
9 things.
10 And hopefully we will end up with a
11 better budget this year because of all this
12 hard work. Because we have a lot of
13 assignments in front of us, don't kid
14 yourselves. But we also are the State of
15 New York, and we can do the things other
16 people can't do.
17 So I just really want to thank you
18 all. Get home safely --
19 (Interruption.)
20 CHAIRWOMAN KRUEGER: Pardon? Get home
21 safely. Get some sleep. No, I have a
22 meeting with Health + Hospitals at like 9 in
23 the morning, so I have to get to sleep fast.
24 SENATOR RIVERA: Closing time
793
1 (singing).
2 CHAIRWOMAN WEINSTEIN: Okay, I think
3 it's time. I just wanted a moment to --
4 let's mute that man.
5 I wanted to take a moment also to just
6 thank both my cochair, Liz Krueger, the
7 rankers Senator O'Mara and Assemblyman Ra,
8 and all of the staff behind the scenes that
9 have really made this look like we knew what
10 we were doing.
11 And thank you all for your testimony,
12 those -- this last panel, but all of the
13 people not only today, but all of the weeks
14 leading up to today.
15 CHAIRWOMAN KRUEGER: Thank you. Thank
16 you, Tom. Thank you, Ed. Bye.
17 SENATOR O'MARA: Thank you. Well
18 done.
19 (Whereupon, at 10:17 p.m., the budget
20 hearing concluded.)
21
22
23
24