It is axiomatic that protection for the elderly—as some of the most vulnerable in our community—is important.  State legislatures, in response to some egregious data related to the death rate in an elderly home from the start of the COVID-19 pandemic to present, proposed two bills, A10045A and S8617A.[1]

The Bills

The New York State Assembly and Senate proposed and passed what is known as Bill A10045A.[2]  This Act proposed changes to Section 1, subdivision 14 of section 218 of the Elder Law and required the Long-Term Care Ombudsman Program (“LTCOP”) to publicize the type of complaint received by its regional officers as well as the number of ombudsman visits to each long-term care facility.[3]

This Act, and revision to the current Elder Law § 218(14), proposed amending this section to include, among other things, “an examination of any recurring complaint to determine if there are systemic issues in such facilities….”[4]  In addition, it added in section (h), which states, “…all complaints received by the state ombudsman relating to long-term care facilities including but not limited to complaints that suggest the possible occurrence of physical abuse, mistreatment, neglect or Medicaid fraud, listed by type of complaint, facility name and by region”.[5]  These protections would provide for a review of the types of complaints which would, in theory, provide insight into the well being of our elderly and the facilities they occupy.

In addition to the above, another proposed bill—which has also passed the State Senate and Assembly—listed as S8617A, or the companion bill to A10045A, also requires for the LTCOP report to include the patterns of complaints being received, along with the policy recommendations and reporting about those complaints received.[6]  The annual report, should the bill be approved by the Governor, will also require these annual reports to include the complaints which consist of not only abuse, neglect and exploitation, but also instances of fraud in facilities.[7]

Impact

Although this new law promotes a more structured and publicized complaint system, the civil courts may see an increase in the filing of civil lawsuits.  Whether this can be remedied through an additional amendment to the bills remains to be seen.  Perhaps an administrative process will prove necessary to limit the court’s exposure to frivolous lawsuits or claims for damage from one facility using the alleged negligence of another.

There also remains a question as to whether collateral instances could be introduced at the time of trial to prove the plaintiff’s case.  For example, our courts have found “where evidence of similar acts is admitted pursuant to the ‘common scheme or plan’ exception…. proof of similar acts is offered not to establish a particular intent, but to prove that the person did the act in issue.”[8]  Thus, under this exception, evidence of collateral acts is generally admitted if the plaintiff can prove that those same “collateral acts are sufficiently connected with the act in issue such that each forms a part of a common plan on the part of the actor to achieve some ultimate result.”[9]  Thus, mere similarity between the acts are generally found to be insufficient for the admission under this common scheme plan or exception.[10]  Attorneys should anticipate seeing an increased presence of these arguments due to the pending laws.  It could also demand that defense counsel find creative ways to combat the alleged pattern of abuse and/or neglect at an elder care facility.

Takeaway

These proposed bills come on the back of the crisis experienced by New York during the COVID-19 pandemic.[11]  Although these bills have yet to receive the stamp of approval by the governor, their ability to pass through the Senate and Assembly does provide some hope—not to mention the weight of the 15,000 elderly individuals said to have passed since the start of the COVID-19 pandemic.[12]  The bills seek to ensure responsibility and accountability for the elder care facilities community and further protect a class of the most vulnerable people in New York.  However, these additional protections do not come without cost—both to our civil court system as well as to our evidentiary interpretation.

[1] See NYS Lawmakers Move to Strengthen Nursing Home Oversight From Care, To Complaints And More, Harlem World Magazine, August 16, 2022, https://www.harlemworldmagazine.com/nys-lawmakers-move-to-strengthen-nursing-home-oversight-from-care-to-complaints-and-more/.

[2] An Act to Amend the Elder Law, Bill No. A10045-A (2022); see NY ELDER § 218(14) (McKinney).

[3] NY ELDER § 218(14).

[4] An Act to Amend the Elder Law, Bill No. A10045-A (2022).

[5] Id.

[6] An Act to Amend the Elder Law, Bill No. S8617-A (2022).

[7] Id.

[8] Matter of Brandon’s Est., 55 N.Y.2d 206, 212, 433 N.E.2d 501, 504 (1982), citing 2 Wigmore, § 304, at p. 249.

[9] Matter of Brandon’s Est., 55 N.Y.2d at 212; see People v. Molineux, 168 N.Y. 264, 305–310 (1901); see also Altman v. Ozdoba, 237 N.Y. 218, (1923); Richardson, Evidence [10th ed.], §§ 179, 184.

[10] See Matter of Brandon’s Est., 55 N.Y.2d at 212.

[11] See Harlem World Magazine, August 16, 2022, supra.

[12] Id.

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