April 29, 2020

Dear Honorable Assemblywoman Marjorie Byrnes,

First and foremost, our healthcare heroes and staff care deeply about our residents and the families that
we serve making every effort to communicate with all those who inquire about the wellbeing of
residents in our care. However, it is important to note that only family members who are a resident’s
primary contact, power of attorney, or those on the approved contact list created by the primary
contact/resident can be given personal health information, as per HIPAA. We rely heavily on the primary
contacts to keep their broader family updated, as is their right to do so as they see fit.

I want to be abundantly clear on a topic that has been prevalent in the media as of late. Hurlbut Care
Communities, including our Avon Nursing and Rehabilitation facility, has and will continue to comply
with NYSDOH reporting mandates. However, the recently enacted HERDS survey, mandated by NYSDOH,
requires nursing homes to not only submit the number of test positive COVID-19 cases and fatalities,
which we are complying with, but also the gender, race and initials of those individuals. The latter
information directly violates The Health Insurance Portability and Accountability Act (HIPAA) of 1996,
which regulates the sharing of Personal Health Information (PHI).

We have sent NYSDOH several requests for assurances that this confidential information would be
protected, with no response. We will continue to comply with all HERDS survey requirements, but I will
also continue to speak out against this blatant and egregious disregard for federal law and American
citizen’s legal rights to protect their personal information.

In response to your public comments related to the HERDS survey -- yes, there have been fatalities from
confirmed COVID-19 and presumable COVID-19 at five of our 13 facilities. It is possible that this
information is not reflected on the NYSDOH fatalities report because of the following:
 We only report confirmed, COVID-positive deaths that happen at our facilities
 We do not report presumed COVID deaths at our facilities, or any death that occurs at a
hospital, per other incoming mandates from the NYSDOH, as COVID-19 positive deaths
 The HERDS survey was enacted for nursing homes in late March 2020 and is non-cumulative,
which means the reporting is only for new fatalities of confirmed positive cases from our facility
and starts fresh each day
  We have always reported in compliance with NYSDOH requirements, but deaths reported to
NYSDOH prior to the new HERDS survey don’t seem to be reflected in what the State is
publishing.

Our hope was the NYSDOH reports would reflect what has been submitted, but we understand that
tracking results from several iterations of the survey, as well as capacity to retroactively compile all the
data from the more than 600 nursing and long-term care facilities in the state, may be resulting in a
delay by the NYSDOH.

We are posting weekly updates to our website with fatalities by facility, in addition to conducting
personal calls to primary contacts. However, we will not distribute a mass of information publicly
because these are human lives, not just numbers. These are real people who do not deserve to be
politicized.
Focusing so adamantly on deaths and mortality for the elderly will not help us get closer to a vaccine.
Additionally, physical distancing is nearly impossible in the nursing home environment, due to room
sharing and the fact that we provide the most intimate level of care, from brushing teeth to bathing and
incontinence care. These needs don’t just go away because of a virus, and we will not lower our
standards of care because of it.

The constant harassment of our healthcare staff by external forces is deplorable. They deserve our
respect and gratitude, not finger pointing by those who can’t see all their tireless efforts to protect our
elderly. Instead of placing blame on the facilities whose healthcare heroes put themselves at risk every
day to care for our elderly, I implore our elected officials to start looking at the flawed mandates and
reporting directives from the State and the Governor’s office that has put our facility and residents at
risk. On March 25, 2020 NYSDOH mandated that nursing homes accept residents with confirmed or
suspected COVID-19. This mandate is still in effect today and continues to have a substantial impact
across all our facilities. We need the State to end the mandate requiring nursing homes to accept
COVID-19 positive patients from hospitals.

Additionally, as many facilities and other healthcare organizations around the county have said, we need
help and support in the form of more PPE, more testing resources, and back-up staff resources. New
York State continues to control the distribution of personal protective equipment (PPE). They have not
shared when more will be provided to area County Offices for Emergency Management (OEMs), who
rely on this supply to help support local nursing facilities and other healthcare organizations. We have
been sounding this alarm for weeks and have tried to fill the needs privately, but our efforts are
unsustainable due to the limited resources.

I implore our elected officials to support area nursing homes, so we can support those living in our
facilities, and our team members living in your communities throughout this crisis.

Thank you for your consideration,

-Robert W. Hurlbut, President

Hurlbut Care Communities