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A04416 Summary:

BILL NOA04416
 
SAME ASSAME AS S03460
 
SPONSORGottfried (MS)
 
COSPNSRJaffee, Bronson, Steck, Galef, Rosenthal L, Abinanti, Mosley, Benedetto, Dinowitz, Blake, D'Urso, Hyndman, Lupardo, Sayegh, Salka, Barron
 
MLTSPNSRArroyo, Cook, Simon, Thiele
 
Amd 460-d, 461-c, 461-d, 461-e & 461-a, Soc Serv L; amd 29.15, Ment Hyg L
 
Relates to violations of safety conditions in adult care facilities; provides penalties for safety violations and operating without a valid license; prohibits reductions in fines in certain circumstances where a patient is endangered or harmed.
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A04416 Actions:

BILL NOA04416
 
02/04/2019referred to health
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A04416 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4416
 
SPONSOR: Gottfried (MS)
  TITLE OF BILL: An act to amend the social services law and the mental hygiene law, in relation to violations of safety conditions in adult care facilities   PURPOSE OR GENERAL IDEA OF BILL: To protect the health, safety and quality of life of adult care facility (ACF) residents by improving Department of Health safety enforcement.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends SSL § 460-d(4)(b), which authorizes a pre-hearing suspension or limitation of an ACF's operating certificate, until a DOH hearing is begun. This section provides that if there is a finding of imminent danger to the public health or a resident's health, safety or welfare, the suspension or limitation may be extended for up to 60 days if DOH makes reasonable efforts to complete the hearing. Section 2 amends SSL § 460-d(7) to increase potential penalties for ACF violations from $1,000 per day to $5,000 per violation per day, consist- ent with PHL § 12. Rectification within 30 days will no longer mitigate a penalty for a violation that endanger residents, has caused harm, or is a repeated violation. Sections 3 and 4 amend SSL § 460-d(9) to conform actions against unli- censed ACFs to PHL § 12, and allow DOH inspections when a facility is unlicensed and there is reason to believe it poses an imminent danger to residents. Sections 5 and 6 amend SSL §§ 460-d(1 1) and (12), which provides for DOH to notify hospitals when DOH issues notice of proposed revocation, suspension or limitation of an ACF operating certificate or places it on the "Do Not Refer" list. The bill provides that notice shall also go to nursing homes and other ACFs. Section 7 adds a new SSL § 460-d(18) to provide that when DOH proposes an enforcement action under SSL § 460-d(11) when there is a condition that constitutes an imminent danger any resident, DOH may prohibit the operator from admitting new residents until the danger no longer exists. Section 8 adds a new 461-c(10) to require ACFs to post resident agree- ments and rates on the web. Section 9 amends SSL § 461-d(3) to provide that the rights of residents set forth in that subdivision cannot be waived by legal representatives or resident representatives. Section 10 adds a new SSL § 461-e(3-a) to require ACFs to publically post complaint-driven inspection reports and make them available to prospective residents. Section 11 amends SSL § 461-a(2) to delete a provision permitting "facilities receiving the department's highest rating" to undergo inspections every 18 months, instead of annually, and instead reserves the 18 month inspection schedule for facilities in compliance based on the facility's most recent inspection. This section also authorizes, rather than mandates, that the inspection report provide directions as to how compliance is achieved, and requires the operator to submit a correction plan within 30 calendar days. DOH will answer as to the acceptability of the plan within another 30 days. Additionally, enriched housing programs are required to develop and implement quality assurance activities for each area of operation. Section 12 amends Mental Hygiene Law § 29.15(i)(2)(I) and (II) to include enriched housing programs among the facilities to which a patient can be referred when discharged from facilities licensed or operated by the Office of Mental Retardation and Developmental Disabili- ties (OMRDD), the Office of Alcoholism and Substance Abuse Services (OASAS) or the Office of Mental Health (OMH), if the receiving facility meets applicable requirements.   JUSTIFICATION: Adult homes, enriched housing programs and residences for adults - collectively referred to as adult care facilities (ACF) - are important models of care that serve as the homes of thousands of New York State residents. This bill modernizes and strengthens inspection and enforce- ment process and transparency. Many ACFs operate within the law and provide quality services. But year after year, there are horrendous cases of severe deficiencies affecting vulnerable residents. This bill offers more clear guidance for issues of endangerment, harm, repeated violations and unlicensed facilities. The bill would permit a "per violation" fine in addition to the current law permitting "per day" fines. The maximum fine per day has not been raised since the law's inception in 1977. While $1,000 may have been a signif- icant sum then, too often now it is just the "cost of doing business." Compared to the $10,000 maximum per day facing nursing homes, $5,000 is an appropriate deterrent for ACFs. Currently, other ACFs and nursing homes are not notified and so make referrals to the ACFs on the "do not refer" list. This bill corrects that. Several court decisions have interpreted SSL § 461-a(2)(3) as requiring DOH inspection reports to indicate areas of operation where an ACF is and is not in compliance, and to require DOH to specifically direct how a violation is to be rectified. This bill provides clarity so that DOH resources will be better spent.   PRIOR LEGISLATIVE HISTORY: 2015-2016: A5820-A - advanced to third reading 2017-2018: A.2743- advanced to third reading   FISCAL IMPLICATIONS: No fiscal impact on the State or local governments.   EFFECTIVE DATE: Ninetieth day after it becomes a law.
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A04416 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4416
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 4, 2019
                                       ___________
 
        Introduced  by  M.  of  A.  GOTTFRIED,  JAFFEE,  BRONSON,  STECK, GALEF,
          L. ROSENTHAL, ABINANTI, MOSLEY, BENEDETTO,  DINOWITZ,  BLAKE,  D'URSO,
          HYNDMAN,  LUPARDO  --  Multi-Sponsored  by  --  M. of A. ARROYO, COOK,
          SIMON, THIELE -- read once and referred to the Committee on Health
 
        AN ACT to amend the social services law and the mental hygiene  law,  in
          relation to violations of safety conditions in adult care facilities
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1.  Paragraph (b) of subdivision 4 of  section  460-d  of  the
     2  social  services  law, as amended by chapter 733 of the laws of 1994, is
     3  amended to read as follows:
     4    (b) No operating certificate shall be revoked,  suspended  or  limited
     5  without  a  hearing  held  in  accordance with procedures established by
     6  department regulations, which procedures shall require  that  notice  of
     7  the  time  and place of the hearing, and notice of the charges, shall be
     8  served in person or by certified mail addressed to the facility at least
     9  thirty days prior to the date of the hearing. A written  answer  to  the
    10  charges may be filed with the department not less than ten business days
    11  prior  to  the date of the hearing. An operating certificate may, never-
    12  theless, be suspended or limited without a hearing for a period  not  in
    13  excess  of  sixty  days, upon written notice to the facility following a
    14  finding by the department that the public  health,  or  an  individual's
    15  health,  safety  or  welfare, are in imminent danger; provided, however,
    16  that if the department makes reasonable efforts to  commence  a  hearing
    17  within  such  sixty  day  period  and  to complete such hearing within a
    18  reasonable period of time, the hearing officer may authorize the depart-
    19  ment to extend the period of suspension or limitation for an appropriate
    20  period of time, but in no event beyond the  date  when  the  hearing  is
    21  completed and available administrative appeals are exhausted.
    22    §  2.  Subdivision  7  of section 460-d of the social services law, as
    23  added by chapter 669 of the laws of 1977, paragraph (a)  as  amended  by
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04051-03-9

        A. 4416                             2
 
     1  chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524
     2  of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap-
     3  ter 733 of the laws of 1994, is amended to read as follows:
     4    7.  (a)  The  department  shall  adopt  regulations establishing civil
     5  penalties of up to [one] five thousand dollars per day per violation  to
     6  be assessed against all adult care facilities except facilities operated
     7  by  a  social services district for violations of (i) regulations of the
     8  department pertaining to the care of residents in such facilities,  (ii)
     9  paragraph  (a)  of subdivision three of section four hundred sixty-one-a
    10  of this [chapter] article, or (iii) an order issued pursuant to subdivi-
    11  sion eight of this section. The regulations shall specify the violations
    12  subject to penalty and the amount of  the  penalty  to  be  assessed  in
    13  connection  with  each  such violation and shall specify that only civil
    14  penalties of up to [one] five thousand dollars  per  day  per  violation
    15  shall  be  assessed  pursuant  to  this  paragraph against an adult care
    16  facility found responsible for an act of retaliation or reprisal against
    17  any resident, employee, or other person for  having  filed  a  complaint
    18  with  or  having  provided  information  to any long term care [patient]
    19  ombudsman functioning in accordance with section  [five  hundred  forty-
    20  four or five hundred forty-five] two hundred eighteen of the [executive]
    21  elder law.
    22    (b)  [(1)] In addition to any other civil or criminal penalty provided
    23  by law, the department shall have the power to assess civil penalties in
    24  accordance with its regulations adopted pursuant  to  paragraph  (a)  of
    25  this  subdivision,  after  a  hearing  conducted  in accordance with the
    26  procedures established by regulations of the department. Such procedures
    27  shall require that notice of the time and place of the hearing, together
    28  with a statement of charges of violations, shall be served in person  or
    29  by  certified  mail addressed to the facility at least thirty days prior
    30  to the date of the hearing. The statement of charges of violations shall
    31  set forth the existence of the violations, the  amount  of  penalty  for
    32  which  it may become liable and the steps which must be taken to rectify
    33  the violation and, where applicable, a  statement  that  the  department
    34  contends  that  a penalty may be imposed under this paragraph regardless
    35  of rectification. An answer to the charges of  violations,  in  writing,
    36  shall  be filed with the department, not less than ten days prior to the
    37  date of hearing. The answer shall notify the department of  the  facili-
    38  ty's  position with respect to each of the charges and shall include all
    39  matters which if not disclosed in the answer would be likely to take the
    40  department by surprise. The commissioner, or a member of his  staff  who
    41  is  designated  and  authorized  by him to hold such hearing, may in his
    42  discretion allow the facility to prove any matter not  included  in  the
    43  answer.
    44    (c)  (1) Where the facility satisfactorily demonstrates that it either
    45  had rectified the violations within thirty  days  of  receiving  written
    46  notification  of  the results of the inspection pursuant to section four
    47  hundred sixty-one-a of this [chapter] article, or had  submitted  within
    48  [thirty]  fourteen  days  an  acceptable  plan for rectification and was
    49  rectifying the violations in accordance with the steps  and  within  the
    50  additional  periods  of time as accepted by the department in such plan,
    51  [no] the department may determine that the penalty  under  this  section
    52  shall be reduced from what otherwise would be imposed, or waived, except
    53  as  provided  in  subparagraph two of this paragraph , and only after it
    54  finds particular circumstances justifying a reduction or waiver  of  the
    55  fine, considering:

        A. 4416                             3
 
     1    (i) the cause of the violation being an isolated incident and not part
     2  of a pattern or practice;
     3    (ii) the number of residents affected by the violation;
     4    (iii) the risk of harm or endangerment created by the violation;
     5    (iv) the facility's history of citations and violations;
     6    (v)  the  promptness  of rectification, if delay was occasioned by the
     7  department; and
     8    (vi) the specific circumstances of the violations.
     9    (2) [Rectification shall not preclude the assessment of a  penalty  if
    10  the  department  establishes  at  a hearing that a particular violation,
    11  although corrected, endangered or resulted in harm to  any  resident  as
    12  the result of:
    13    (i)] No fine shall be reduced or waived for a violation that:
    14    (i) endangered any resident.  Endangerment is defined as:
    15    (A)  the total or substantial failure of the facility's fire detection
    16  or prevention systems, or emergency evacuation procedures prescribed  by
    17  department safety standard regulations;
    18    [(ii)] (B) the retention of any resident who has been evaluated by the
    19  resident's physician as being medically or mentally unsuited for care in
    20  the  facility  or  as  requiring  placement in a hospital or residential
    21  health care facility and for whom the operator is not making  persistent
    22  efforts to secure appropriate placement;
    23    [(iii)] (C) the failure in systemic practices and procedures;
    24    [(iv)]  (D) the failure of the operator to take actions as required by
    25  department regulations in the event of a resident's illness or accident;
    26    [(v)] (E) the failure of the operator to provide at all  times  super-
    27  vision of residents by numbers of staff at least equivalent to the night
    28  staffing requirement set forth in department regulations; or
    29    [(vi)]  (F)  unreasonable  threats of retaliation or taking reprisals,
    30  including but not limited to unreasonable threats of eviction or  hospi-
    31  talization  against  any  resident, employee or other person who makes a
    32  complaint concerning the operation of an adult  care  facility,  partic-
    33  ipates  in  the  investigation  of  a  complaint or is the subject of an
    34  action identified in a complaint[.
    35    The department shall specify in its regulations those  regulations  to
    36  which this subparagraph two shall apply.
    37    (3)  In assessing penalties pursuant to this paragraph, the department
    38  shall consider promptness of  rectification,  delay  occasioned  by  the
    39  department, and the specific circumstances of the violations as mitigat-
    40  ing factors.
    41    (c)];
    42    (ii) resulted in harm to any resident, including but not limited to:
    43    (A) physical injury;
    44    (B) loss or denial of access to money or other personal property; or
    45    (C)  being  the  object  of words or conduct that constitute bullying,
    46  harassment, humiliation, infantilization, intimidation, taunt, ridicule,
    47  a threat, or derogatory comment; or
    48    (iii) is  a  repeat  violation.  Repeat  violation  is  defined  as  a
    49  violation for which the facility was cited by the department at any time
    50  in the previous twelve months.
    51    (d)  Upon  the  request  of  the  department, the attorney general may
    52  commence an action in any court of competent  jurisdiction  against  any
    53  facility  subject  to  the  provisions  of this section, and against any
    54  person or corporation operating such facility, for the recovery  of  any
    55  penalty  assessed by the department in accordance with the provisions of
    56  this subdivision.

        A. 4416                             4
 
     1    [(d)] (e) Any such penalty assessed by the department may be  released
     2  or  compromised  by the department, subject to and consistent with para-
     3  graph (c) of this subdivision, before the matter has  been  referred  to
     4  the  attorney  general,  and  where such matter has been referred to the
     5  attorney  general,  any  such penalty may be released or compromised and
     6  any action commenced to recover the same may be settled and discontinued
     7  by the attorney general, after considering paragraph (c) of this  subdi-
     8  vision and with the consent of the department.
     9    §  3.  Paragraphs (a) and (b) of subdivision 9 of section 460-d of the
    10  social services law, paragraph (a) as amended by chapter 558 of the laws
    11  of 1999 and paragraph (b) as added by chapter 848 of the laws  of  1992,
    12  are amended to read as follows:
    13    (a) The department shall have authority to impose a civil penalty [not
    14  exceeding  one  thousand dollars per day] consistent with section twelve
    15  of the public health law against, and to issue an  order  requiring  the
    16  closing of, after notice and opportunity to be heard, any facility which
    17  does  not possess a valid operating certificate issued by the department
    18  and is an adult care facility subject to the provisions of this  article
    19  and  the  regulations of the department. A hearing shall be conducted in
    20  accordance with procedures established by department  regulations  which
    21  procedures  shall  require  that  notice  of  the determination that the
    22  facility is an adult care facility and the  reasons  for  such  determi-
    23  nation  and  notice  of  the  time and place of the hearing be served in
    24  person on the operator, owner or prime lessor, if any, or  by  certified
    25  mail, return receipt requested, addressed to such person and received at
    26  least  twenty  days  prior to the date of the hearing. If such operator,
    27  owner or prime lessor, if any, is not  known  to  the  department,  then
    28  service  may  be  made  by posting a copy thereof in a conspicuous place
    29  within the facility or by sending a  copy  thereof  by  certified  mail,
    30  return receipt requested, addressed to the facility. A written answer to
    31  the  notice  of violation may be filed with the department not less than
    32  five days prior to the date of the hearing.  Demonstration by the facil-
    33  ity that it possessed an operating certificate issued pursuant  to  this
    34  article,  article  twenty-eight  of  the  public  health  law or article
    35  sixteen, [twenty-three,] thirty-one or thirty-two of the mental  hygiene
    36  law  at  the  time the hearing was commenced shall constitute a complete
    37  defense to any charges made pursuant to this subdivision.
    38    (b) [The penalty authorized by this section shall begin to run  thirty
    39  days  after  the  department  provides  the operator, in writing, with a
    40  summary of the inspection of the facility by which the department deter-
    41  mined that he or she is operating an uncertified adult  care  facility.]
    42  The  submission  of  an  application  by  the  operator for an operating
    43  certificate for the facility shall not act as a bar to the imposition of
    44  a penalty against the operator of an unlicensed adult care facility.
    45    § 4. Paragraph (c) of subdivision 9 of section  460-d  of  the  social
    46  services  law  is  amended  by adding a new subparagraph (iv) to read as
    47  follows:
    48    (iv) If the department of health determines, based on a  complaint  or
    49  other  facts  known  to  the department, that there is reason to believe
    50  that an individual or entity is operating an adult home, enriched  hous-
    51  ing  program,  or  residence  for  adults which does not possess a valid
    52  operating certificate issued by the department, and  that  one  or  more
    53  conditions  or  activities  at such facility constitute or are likely to
    54  give rise to an immediate danger to the health  of  the  residents,  and
    55  awaiting  a court order pursuant to subparagraph (iii) of this paragraph
    56  would be seriously detrimental to the  health  of  such  residents,  the

        A. 4416                             5
 
     1  department  of health may, notwithstanding an objection by the operator,
     2  administrator or other person in charge, inspect  the  entire  premises,
     3  which  shall  include access to all dwellings on the said property which
     4  house tenants/occupants as well as access to such tenants/occupants, for
     5  the  purpose  of ascertaining whether such danger exists or is likely to
     6  arise on an immediate basis. The department of health  may  request  the
     7  assistance  of  local  law enforcement for purposes of carrying out such
     8  inspection and may take any appropriate action  if  it  determines  that
     9  such  danger  exists  or is likely to arise, including issuing a written
    10  notice directing the operator, administrator or other person  in  charge
    11  of such facility to cease or correct the condition or activity at issue.
    12  As  promptly  as  possible  thereafter,  within  a  period not to exceed
    13  fifteen days, the commissioner shall provide the operator an opportunity
    14  to be heard and to present any proof that  such  condition  or  activity
    15  does  not  constitute  a  danger  to the health of the residents of such
    16  facility. The attorney  general,  upon  request  of  the  department  of
    17  health,  shall be authorized to apply to the supreme court in the county
    18  in which the facility is located for an order for any appropriate  addi-
    19  tional relief.
    20    §  5.  Subdivision  11 of section 460-d of the social services law, as
    21  amended by section 154 of subpart B of part C of chapter 62 of the  laws
    22  of 2011, is amended to read as follows:
    23    11.  On or before issuance by the department to an adult care facility
    24  operator of official written notice of: the proposed revocation, suspen-
    25  sion or denial of the operator's operating certificate;  the  limitation
    26  of  the  operating certificate with respect to new admissions; the issu-
    27  ance of a department order or commissioner's order; the seeking of equi-
    28  table relief pursuant to this section; the proposed assessment of  civil
    29  penalties  for  violations  of  the  provisions of [subparagraph two of]
    30  paragraph [(b)] (c) of subdivision seven of this section or placement on
    31  the "do not refer list" pursuant to subdivision fifteen of this section,
    32  written notice also shall be given to  the  appropriate  office  of  the
    33  department  of  mental  hygiene, department of corrections and community
    34  supervision and local social services districts,  and  provided  further
    35  that the department of health shall notify hospitals, residential health
    36  care  facilities and adult care facilities in the locality in which such
    37  facility is located that such notice has been issued. Upon resolution of
    38  such enforcement action the  department  shall  notify  the  appropriate
    39  office  of  the  department of mental hygiene, department of corrections
    40  and community supervision, local social services districts [and], hospi-
    41  tals, residential health care facilities and adult care facilities.
    42    § 6. Subdivision 12 of section 460-d of the social  services  law,  as
    43  amended  by  section  42 of part B of chapter 58 of the laws of 2004, is
    44  amended to read as follows:
    45    12. [Social] Hospitals, residential health care facilities, adult care
    46  facilities, social services districts and other local  government  enti-
    47  ties  established  pursuant  to  this  chapter  shall be prohibited from
    48  making referrals for admissions  to  adult  care  facilities  that  have
    49  received  official  written  notice  regarding: the proposed revocation,
    50  suspension or denial of the operator's operating certificate; the  limi-
    51  tation  of the operating certificate with respect to new admissions; the
    52  issuance of department order or commissioner's orders;  the  seeking  of
    53  equitable  relief  pursuant  to this section; the proposed assessment of
    54  civil penalties for violations of the provisions  of  [subparagraph  two
    55  of]  paragraph  [(b)]  (c)  of subdivision seven of this section; or the

        A. 4416                             6
 
     1  facility's placement on the "do not refer list" pursuant to  subdivision
     2  fifteen of this section.
     3    §  7.  Section 460-d of the social services law is amended by adding a
     4  new subdivision 18 to read as follows:
     5    18. When the department of health issues official written notice to an
     6  operator of a proposed action specified in subdivision  eleven  of  this
     7  section,  and  the department determines that there is a condition which
     8  constitutes an imminent danger to the health, safety or welfare  of  any
     9  resident,  the  department may prohibit that operator from admitting any
    10  new resident to the facility until the department determines that  there
    11  is  no longer an imminent danger to the health, safety or welfare of any
    12  resident.
    13    § 8. Section 461-c of the social services law is amended by  adding  a
    14  new subdivision 10 to read as follows:
    15    10. The operator of an adult home or an enriched housing program shall
    16  provide  to prospective residents who inquire about admission, and shall
    17  post   on   its   website,   a   copy   of   the   facility's   approved
    18  admission/residency agreement, including the rates charged to residents.
    19    §  9.  The  closing paragraph of subdivision 3 of section 461-d of the
    20  social services law, as added by chapter 601 of the  laws  of  1981,  is
    21  amended to read as follows:
    22    Waiver  of  any  provision [contained within] of this subdivision by a
    23  resident of an adult care facility or by the resident's legal  represen-
    24  tative  or  resident  representative,  with  respect to a resident of an
    25  adult home, residence for adults or enriched housing program,  shall  be
    26  void.
    27    §  10. Section 461-e of the social services law is amended by adding a
    28  new subdivision 3-a to read as follows:
    29    3-a. Every adult home and enriched housing program shall:
    30    (a) Post in a prominent position in the facility so as to be  accessi-
    31  ble  to all residents and to the general public, a summary of any report
    32  of inspection based on a complaint issued by the department of health to
    33  the facility within the previous year.
    34    (b) Provide to any resident and each applicant for admission an oppor-
    35  tunity to review any report of inspection based on a complaint issued by
    36  the department of health to the facility within the previous year.
    37    § 11. Paragraphs (a), (b) and (c) of subdivision 2 of section 461-a of
    38  the social services law, paragraphs (a) and (c) as  amended  by  chapter
    39  735  of  the laws of 1994 and paragraph (b) as amended by chapter 601 of
    40  the laws of 1981, are amended to read as follows:
    41    (a) With respect to adult care facilities the department shall conduct
    42  a minimum of one unannounced inspection of each such facility to  deter-
    43  mine the  adequacy of care being rendered, pursuant to the following:
    44    (1) Such facilities [receiving the department's highest rating] deter-
    45  mined  by  the  department to be in compliance or substantial compliance
    46  with applicable statutes and regulations, based on the  facility's  most
    47  recent  inspection,  shall  be  inspected  at  least once every eighteen
    48  months on an unannounced basis.
    49    (2) All other such facilities shall be  inspected  on  an  unannounced
    50  basis  no  less  than  annually.   The commissioner may provide for more
    51  frequent inspections of any such facilities. Such inspection  shall  not
    52  be  required with respect to any facility for which the commissioner has
    53  delegated responsibility for inspection  and  supervision  to  a  social
    54  services  official  pursuant  to  section  four  hundred sixty-c of this
    55  [chapter] article.  Any employee of the department or a social  services
    56  district  who  gives  or causes to be given advance notice of such unan-

        A. 4416                             7
 
     1  nounced inspections to any unauthorized persons shall,  in  addition  to
     2  any other penalty provided by law, be suspended by the department or the
     3  social  services  district from all duties without pay for at least five
     4  days  or  for  such  greater  period of time as the department or social
     5  services district shall determine.  Any such suspension shall be made by
     6  the department or social services district in accordance with all  other
     7  applicable provisions of law.
     8    (b)  [The department or a social services district, where appropriate,
     9  shall each year conduct a minimum of one full inspection of  each  adult
    10  care  facility. Such inspection] An inspection of an adult care facility
    11  under this section shall include, but shall not be limited to,  examina-
    12  tion of the medical, dietary and social services records of the facility
    13  as well as the minimum standards of construction, life safety standards,
    14  quality  and  adequacy  of  care,  rights of residents, payments and all
    15  other areas of operation. The purpose of  any  inspection  shall  be  to
    16  determine  compliance  with requirements of applicable provisions of law
    17  and regulations of the department.
    18    (c) (i) An inspection report shall be made of  each  inspection  which
    19  shall  clearly  identify  and indicate in detail each area of operation,
    20  including, but not limited to, the premises, equipment, personnel, resi-
    21  dent care and services, and whether [each] any such area of operation or
    22  any of its component parts is [or is] not in compliance with  the  regu-
    23  lations of the department and all other applicable requirements. It also
    24  shall  identify  those  areas of operation or any of its component parts
    25  found not in compliance as a result of failure in systemic practices and
    26  procedures. The operator  shall  be  notified  of  the  results  of  the
    27  inspection in a manner to be determined by regulations of the department
    28  and  shall  submit a written plan of correction to the department within
    29  thirty calendar days from the date the inspection  report  is  received.
    30  The  department  shall  notify  the operator of the acceptability of the
    31  plan of correction within  thirty  calendar  days  of  the  department's
    32  receipt  of such plan.  Such notification [shall] may contain directions
    33  as may be appropriate as to the manner and time in which compliance with
    34  applicable requirements of law or regulations of the department shall be
    35  effected.
    36    (ii) The department shall also require the operator of an adult  home,
    37  enriched  housing program or residence for adults to develop, biannually
    38  update and implement plans for quality  assurance  activities  for  each
    39  area  of  operation.  Quality  assurance  activities include but are not
    40  limited to, development and maintenance of performance standards,  meas-
    41  urement of adherence to such standards and to applicable state and local
    42  laws  and  regulations,  identification of performance failures, design,
    43  and implementation of corrective action.
    44    § 12. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i)  of
    45  section  29.15  of  the mental hygiene law, as amended by chapter 168 of
    46  the laws of 2010, are amended to read as follows:
    47    (I) A patient about to be discharged or conditionally released from  a
    48  department  facility  licensed or operated by the office for people with
    49  developmental disabilities or from an  inpatient  facility  operated  or
    50  licensed by the office of alcoholism and substance abuse services or the
    51  office  of  mental  health to an adult home, enriched housing program or
    52  residence for adults, as defined in section two of the  social  services
    53  law, shall be referred only to such home or residence that is consistent
    54  with  that  patient's  needs  and that operates pursuant to section four
    55  hundred sixty of the social services law, provided further that: (A) for
    56  a department facility licensed or operated by the office for people with

        A. 4416                             8
 
     1  developmental disabilities or for an inpatient facility operated by  the
     2  office  of  alcoholism  and  substance  abuse  services or the office of
     3  mental health, the facility  director  retains  authority  to  determine
     4  whether the home, program or residence is consistent with that patient's
     5  needs  and  (B) such referral shall be made to the patient's home county
     6  whenever possible or appropriate.
     7    (II) No patient about to be discharged or conditionally released  from
     8  a department facility licensed or operated by the office for people with
     9  developmental  disabilities  or  from  an inpatient facility operated or
    10  licensed by the office of alcoholism and substance abuse services or the
    11  office of mental health shall be referred to any  adult  home,  enriched
    12  housing  program  or  residence for adults, as defined in section two of
    13  the social services law, which has received an official  written  notice
    14  from  the  department of health of: (A) the proposed revocation, suspen-
    15  sion or denial of its operating certificate; (B) the limitation  of  its
    16  operating  certificate  with respect to new admissions; (C) the issuance
    17  of a department of health order or commissioner of health's order or the
    18  seeking of equitable relief pursuant to section four hundred sixty-d  of
    19  the  social services law; (D) the proposed assessment of civil penalties
    20  for violations of the provisions  of  [subparagraph  two  of]  paragraph
    21  [(b)]  (c)  of  subdivision seven of section four hundred sixty-d of the
    22  social services law; or placement on the "do not refer list" pursuant to
    23  subdivision fifteen of  section  four  hundred  sixty-d  of  the  social
    24  services  law.  Referrals  may  resume when such enforcement actions are
    25  resolved.
    26    § 13. Severability clause. If any provision of this act, or any appli-
    27  cation of any provision of this act,  is  held  to  be  invalid,  or  to
    28  violate  or  be  inconsistent  with  any federal law or regulation, that
    29  shall not affect the validity or effectiveness of any other provision of
    30  this act, which can be given effect without that provision  or  applica-
    31  tion;  and  to that end, the provisions and applications of this act are
    32  severable.
    33    § 14. This act shall take effect on the ninetieth day after  it  shall
    34  have  become  a  law.  Effective immediately, the commissioner of health
    35  shall make regulations and take other  actions  necessary  to  implement
    36  this act on that date.
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