|SAME AS||SAME AS S03460|
|COSPNSR||Jaffee, Bronson, Steck, Galef, Rosenthal L, Abinanti, Mosley, Benedetto, Dinowitz, Blake, D'Urso, Hyndman, Lupardo, Sayegh, Salka, Barron|
|MLTSPNSR||Arroyo, 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.|
|02/04/2019||referred to health|
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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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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. LBD04051-03-9A. 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 if10 the department establishes at a hearing that a particular violation,11 although corrected, endangered or resulted in harm to any resident as12 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 to36 which this subparagraph two shall apply.37 (3) In assessing penalties pursuant to this paragraph, the department38 shall consider promptness of rectification, delay occasioned by the39 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 [ not14 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 thirty39 days after the department provides the operator, in writing, with a40 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, theA. 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 two55 of] paragraph [ (b)] (c) of subdivision seven of this section; or theA. 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 adult10 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 withA. 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.