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A04416 Summary:

BILL NOA04416C
 
SAME ASSAME AS S03460-A
 
SPONSORGottfried (MS)
 
COSPNSRJaffee, Bronson, Steck, Galef, Rosenthal L, Abinanti, Mosley, Benedetto, Dinowitz, Blake, D'Urso, Hyndman, Lupardo, Sayegh, Salka, Barron, Darling
 
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 NOA04416C
 
02/04/2019referred to health
05/30/2019amend and recommit to health
05/30/2019print number 4416a
06/03/2019amend and recommit to health
06/03/2019print number 4416b
01/08/2020referred to health
03/11/2020amend and recommit to health
03/11/2020print number 4416c
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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: A4416C
 
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 30 days if DOH makes reasonable efforts to complete the hearing. Section 2 amends SSL § 460-d(7) to increase potential fines for ACF violations from $1,000 per day to $2,000 per violation per day, and $3,000 per violation per day for identical repeat violations. Recti- fication within 30 days will continue to mitigate a fine, except for violations that that are proven after an hearing to have endanger resi- dents or caused harm by violating the already existing rights of resi- dents, or is an identical 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(11) and (12), which provides for DOH to notify hospitals when DOH issues notice of proposed revocation, suspension or limitation; but not a proposed fine, 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. The Depart- ment must notify all parties within ten days of the violation being resolved. 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 but not the rates charged 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. 2 Section 10 adds a new SSL § 461-e(3-a) to require ACFs to publically post complaint-driven inspection reports that resulted in fines, and make all complaint-driven inspection reports available to residents, prospective residents, and resident councils. 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, as well as mitigating circumstances that will enable otherwise good facili- ties to avoid debilitating penalties. 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 significant sum then, too often now it is just the "cost of doing business." Compared to the $10,000 maximum per day facing nursing homes, $2,000 per violation 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--C
 
                               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, SAYEGH, SALKA, BARRON, DARLING -- Multi-Sponsored by
          --  M.  of A. ARROYO, COOK, SIMON, THIELE -- read once and referred to
          the Committee on Health -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said  committee  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- recommitted to the Committee on Health in accord-
          ance  with  Assembly  Rule  3,  sec.  2  -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee
 
        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  demonstrates reasonable efforts to commence a
    17  hearing within such sixty day period and to complete such hearing within
    18  a reasonable period of time,  the  hearing  officer  may  authorize  the
    19  department  to  extend  the  period  of  suspension or limitation for an
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04051-10-0

        A. 4416--C                          2
 
     1  appropriate period of time, but in no event beyond an additional  thirty
     2  days.
     3    §  2.  Subdivision  7  of section 460-d of the social services law, as
     4  added by chapter 669 of the laws of 1977, paragraph (a)  as  amended  by
     5  chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524
     6  of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap-
     7  ter 733 of the laws of 1994, is amended to read as follows:
     8    7.  (a)  The  department  shall  adopt  regulations establishing civil
     9  penalties of up to [one] two thousand dollars  per  day  per  violation,
    10  and,  for  repeat violations, under subparagraph two of paragraph (c) of
    11  this subdivision for which a prior penalty was  assessed,  up  to  three
    12  thousand  dollars per day per violation to be assessed against all adult
    13  care facilities except facilities operated by a social services district
    14  for violations of (i) regulations of the department  pertaining  to  the
    15  care  of residents in such facilities, (ii) paragraph (a) of subdivision
    16  three of section four hundred sixty-one-a of this [chapter] article,  or
    17  (iii) an order issued pursuant to subdivision eight of this section. The
    18  regulations  shall  specify  the  violations  subject to penalty and the
    19  amount of the penalty to  be  assessed  in  connection  with  each  such
    20  violation and shall specify that only civil penalties of up to [one] two
    21  thousand  dollars  per  day  per violation shall be assessed pursuant to
    22  this paragraph against an adult care facility found responsible  for  an
    23  act  of retaliation or reprisal against any resident, employee, or other
    24  person for having filed a complaint with or having provided  information
    25  to any long term care [patient] ombudsman functioning in accordance with
    26  section [five hundred forty-four or five hundred forty-five] two hundred
    27  eighteen of the [executive] elder law.
    28    (b)  [(1)] In addition to any other civil or criminal penalty provided
    29  by law, the department shall have the power to assess civil penalties in
    30  accordance with its regulations adopted pursuant  to  paragraph  (a)  of
    31  this  subdivision,  after  a  hearing  conducted  in accordance with the
    32  procedures established by regulations of the department. Such procedures
    33  shall require that notice of the time and place of the hearing, together
    34  with a statement of charges of violations, shall be served in person  or
    35  by  certified  mail addressed to the facility at least thirty days prior
    36  to the date of the hearing. The statement of charges of violations shall
    37  set forth the existence of the violations, the  amount  of  penalty  for
    38  which  it may become liable and the steps which must be taken to rectify
    39  the violation and, where applicable, a  statement  that  the  department
    40  contends  that  a penalty may be imposed under this paragraph regardless
    41  of rectification. An answer to the charges of  violations,  in  writing,
    42  shall  be filed with the department, not less than ten days prior to the
    43  date of hearing. The answer shall notify the department of  the  facili-
    44  ty's  position with respect to each of the charges and shall include all
    45  matters which if not disclosed in the answer would be likely to take the
    46  department by surprise. The commissioner, or a member of his  staff  who
    47  is  designated  and  authorized  by him to hold such hearing, may in his
    48  discretion allow the facility to prove any matter not  included  in  the
    49  answer.
    50    (c)  (1) Where the facility satisfactorily demonstrates that it either
    51  had rectified the violations within thirty  days  of  receiving  written
    52  notification  of  the results of the inspection pursuant to section four
    53  hundred sixty-one-a of this [chapter] article, or had  submitted  within
    54  thirty  days an acceptable plan for rectification and was rectifying the
    55  violations in accordance with the steps and within the additional  peri-

        A. 4416--C                          3
 
     1  ods of time as accepted by the department in such plan, no penalty shall
     2  be imposed, except as provided in subparagraph two of this paragraph.
     3    (2)  Rectification  shall  not preclude the assessment of a penalty if
     4  the department establishes at a hearing  that  a  particular  violation,
     5  although  corrected[,  endangered or resulted in harm to any resident as
     6  the result of]:
     7    (i) endangered any resident. Endangerment is defined as:
     8    (A) the total or substantial failure of the facility's fire  detection
     9  or  prevention systems, or emergency evacuation procedures prescribed by
    10  department safety standard regulations;
    11    [(ii)] (B) the retention of any resident who has been evaluated by the
    12  resident's physician as being medically or mentally unsuited for care in
    13  the facility or as requiring placement  in  a  hospital  or  residential
    14  health  care facility and for whom the operator is not making persistent
    15  efforts to secure appropriate placement;
    16    [(iii)] (C) the failure in systemic  practices  and  procedures  which
    17  shall  be  defined as widespread or chronic, and material, noncompliance
    18  with statutory or regulatory requirements, including but not limited  to
    19  the  rights  of residents under section four hundred sixty-one-d of this
    20  article;
    21    [(iv)] (D) the failure of the operator to take actions as required  by
    22  department regulations in the event of a resident's illness or accident;
    23    [(v)]  (E)  the failure of the operator to provide at all times super-
    24  vision of residents by numbers of staff at least equivalent to the night
    25  staffing requirement set forth in department regulations; or
    26    [(vi)] (F) [unreasonable] threats of retaliation or taking  reprisals,
    27  including  but  not  limited  to  [unreasonable]  threats of eviction or
    28  hospitalization, against any resident,  employee  or  other  person  who
    29  makes  a  complaint  concerning the operation of an adult care facility,
    30  participates in the investigation of a complaint or is the subject of an
    31  action identified in a complaint[.
    32    The department shall specify in its regulations those  regulations  to
    33  which this subparagraph two shall apply.
    34    (3)  In assessing penalties pursuant to this paragraph, the department
    35  shall consider promptness of  rectification,  delay  occasioned  by  the
    36  department, and the specific circumstances of the violations as mitigat-
    37  ing factors.
    38    (c)];
    39    (ii) resulted in harm to any resident, including but not limited to:
    40    (A) physical harm;
    41    (B)  loss  or  denial  of  access to money or other personal property,
    42  including but not limited to a violation of section one hundred  thirty-
    43  one-o of this chapter; or
    44    (C) being subjected to (I) conduct by an operator, administrator, case
    45  manager,  or  other employee in a supervisory position that violates the
    46  rights of a resident under section  four  hundred  sixty-one-d  of  this
    47  article,  or  (II)  an  egregious failure by an operator, administrator,
    48  case manager, or other employee in a supervisory position to ensure  the
    49  rights  of  a  resident  under  section four hundred sixty-one-d of this
    50  article; or
    51    (iii) is an identical repeat violation. Repeat violation is defined as
    52  a violation of the same provision of regulation for which  the  facility
    53  received  notice  of  a citation issued by the department at any time in
    54  the previous twelve months.
    55    (d) In assessing penalties pursuant to this paragraph, the  department
    56  shall  consider  promptness  of  rectification,  delay occasioned by the

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

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

        A. 4416--C                          6
 
     1  ties established pursuant to  this  chapter  shall  be  prohibited  from
     2  making  referrals  for  admissions  to  adult  care facilities that have
     3  received official written notice  regarding:  the  proposed  revocation,
     4  suspension  or denial of the operator's operating certificate; the limi-
     5  tation of the operating certificate with respect to new admissions;  the
     6  issuance  of  department  order or commissioner's orders; the seeking of
     7  equitable relief pursuant to this section[; the proposed  assessment  of
     8  civil  penalties for violations of the provisions of subparagraph two of
     9  paragraph (b) of subdivision seven of this section]; or  the  facility's
    10  placement  on the "do not refer list" pursuant to subdivision fifteen of
    11  this section.
    12    § 7. Section 460-d of the social services law is amended by  adding  a
    13  new subdivision 18 to read as follows:
    14    18. When the department of health issues official written notice to an
    15  operator  of  a  proposed action specified in subdivision eleven of this
    16  section, and the department determines that there is a  condition  which
    17  constitutes  an  imminent danger to the health, safety or welfare of any
    18  resident, the department may prohibit that operator from  admitting  any
    19  new  resident to the facility until the department determines that there
    20  is no longer an imminent danger to the health, safety or welfare of  any
    21  resident.
    22    §  8.  Section 461-c of the social services law is amended by adding a
    23  new subdivision 10 to read as follows:
    24    10. The operator of an adult home or an enriched housing program shall
    25  provide to prospective residents who inquire about admission, and  shall
    26  post   on   its   website,   a   copy   of   the   facility's   approved
    27  admission/residency agreement.
    28    § 9. The closing paragraph of subdivision 3 of section  461-d  of  the
    29  social  services  law,  as  added by chapter 601 of the laws of 1981, is
    30  amended to read as follows:
    31    Waiver of any provision [contained within] of this  subdivision  by  a
    32  resident  of an adult care facility or by the resident's legal represen-
    33  tative or resident representative, with respect  to  a  resident  of  an
    34  adult  home,  residence for adults or enriched housing program, shall be
    35  void.
    36    § 10. Section 461-e of the social services law is amended by adding  a
    37  new subdivision 3-a to read as follows:
    38    3-a. Every adult home and enriched housing program shall:
    39    (a)  Post in a prominent position in the facility so as to be accessi-
    40  ble to all residents and to the general public:
    41    (i) a summary of any report of inspection based on a complaint  issued
    42  by  the  department  of  health to the facility within the previous year
    43  which resulted in the payment of a fine or penalty by the facility; and
    44    (ii) notice of residents' right to review reports under paragraph  (b)
    45  of this subdivision.
    46    (b) Provide to any resident and each applicant for admission an oppor-
    47  tunity to review any report of inspection based on a complaint issued by
    48  the department of health to the facility within the previous year.
    49    (c)  Provide  to  the  resident  council  a  summary  of any report of
    50  inspection based on a complaint issued by the department of health with-
    51  in fourteen days  of receipt by the facility.
    52    § 11. Paragraphs (a), (b) and (c) of subdivision 2 of section 461-a of
    53  the social services law, paragraphs (a) and (c) as  amended  by  chapter
    54  735  of  the laws of 1994 and paragraph (b) as amended by chapter 601 of
    55  the laws of 1981, are amended to read as follows:

        A. 4416--C                          7
 
     1    (a) With respect to adult care facilities the department shall conduct
     2  a minimum of one unannounced inspection of each such facility to  deter-
     3  mine the  adequacy of care being rendered, pursuant to the following:
     4    (1) Such facilities [receiving the department's highest rating] deter-
     5  mined  by  the  department to be in compliance or substantial compliance
     6  with applicable statutes and regulations, based on the  facility's  most
     7  recent  inspection,  shall  be  inspected  at  least once every eighteen
     8  months on an unannounced basis.
     9    (2) All other such facilities shall be  inspected  on  an  unannounced
    10  basis  no  less  than  annually.   The commissioner may provide for more
    11  frequent inspections of any such facilities. Such inspection  shall  not
    12  be  required with respect to any facility for which the commissioner has
    13  delegated responsibility for inspection  and  supervision  to  a  social
    14  services  official  pursuant  to  section  four  hundred sixty-c of this
    15  [chapter] article.  Any employee of the department or a social  services
    16  district  who  gives  or causes to be given advance notice of such unan-
    17  nounced inspections to any unauthorized persons shall,  in  addition  to
    18  any other penalty provided by law, be suspended by the department or the
    19  social  services  district from all duties without pay for at least five
    20  days or for such greater period of time  as  the  department  or  social
    21  services district shall determine.  Any such suspension shall be made by
    22  the  department or social services district in accordance with all other
    23  applicable provisions of law.
    24    (b) [The department or a social services district, where  appropriate,
    25  shall  each  year conduct a minimum of one full inspection of each adult
    26  care facility. Such inspection] An inspection of an adult care  facility
    27  under  this section shall include, but shall not be limited to, examina-
    28  tion of the medical, dietary and social services records of the facility
    29  as well as the minimum standards of construction, life safety standards,
    30  quality and adequacy of care, rights  of  residents,  payments  and  all
    31  other  areas  of  operation.  The  purpose of any inspection shall be to
    32  determine compliance with requirements of applicable provisions  of  law
    33  and regulations of the department.
    34    (c)  (i)  An  inspection report shall be made of each inspection which
    35  shall clearly identify and indicate in detail each  area  of  operation,
    36  including, but not limited to, the premises, equipment, personnel, resi-
    37  dent care and services, and whether [each] any such area of operation or
    38  any  of  its component parts is [or is] not in compliance with the regu-
    39  lations of the department and all other applicable requirements. It also
    40  shall identify those areas of operation or any of  its  component  parts
    41  found not in compliance as a result of failure in systemic practices and
    42  procedures.  The  operator  shall  be  notified  of  the  results of the
    43  inspection in a manner to be determined by regulations of the department
    44  and shall submit a written plan of correction to the  department  within
    45  thirty  calendar  days  from the date the inspection report is received.
    46  The department shall notify the operator of  the  acceptability  of  the
    47  plan  of  correction  within  thirty  calendar  days of the department's
    48  receipt of such plan.  Such notification shall contain directions as may
    49  be appropriate as to the manner and time in which compliance with appli-
    50  cable requirements of law or regulations  of  the  department  shall  be
    51  effected.
    52    (ii)  The department shall also require the operator of an adult home,
    53  enriched housing program or residence for adults to develop,  biannually
    54  update  and  implement  plans  for quality assurance activities for each
    55  area of operation. Quality assurance  activities  include  but  are  not
    56  limited  to, development and maintenance of performance standards, meas-

        A. 4416--C                          8
 
     1  urement of adherence to such standards and to applicable state and local
     2  laws and regulations, identification of  performance  failures,  design,
     3  and implementation of corrective action.
     4    §  12. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of
     5  section 29.15 of the mental hygiene law, as amended by  chapter  168  of
     6  the laws of 2010, are amended to read as follows:
     7    (I)  A patient about to be discharged or conditionally released from a
     8  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]  addiction
    11  services  and  supports or the office of mental health to an adult home,
    12  enriched housing program or residence for adults, as defined in  section
    13  two  of  the social services law, shall be referred only to such home or
    14  residence that is consistent with that patient's needs and that operates
    15  pursuant to section four hundred  sixty  of  the  social  services  law,
    16  provided  further  that: (A) for a department facility licensed or oper-
    17  ated by the office for people with developmental disabilities or for  an
    18  inpatient  facility  operated by the office of [alcoholism and substance
    19  abuse] addiction services and supports or the office of  mental  health,
    20  the  facility  director retains authority to determine whether the home,
    21  program or residence is consistent with that  patient's  needs  and  (B)
    22  such referral shall be made to the patient's home county whenever possi-
    23  ble or appropriate.
    24    (II)  No patient about to be discharged or conditionally released from
    25  a department facility licensed or operated by the office for people with
    26  developmental disabilities or from an  inpatient  facility  operated  or
    27  licensed  by  the  office  of [alcoholism and substance abuse] addiction
    28  services and supports or the office of mental health shall  be  referred
    29  to  any adult home, enriched housing program or residence for adults, as
    30  defined in section two of the social services law, which has received an
    31  official written notice from  the  department  of  health  of:  (A)  the
    32  proposed  revocation, suspension or denial of its operating certificate;
    33  (B) the limitation of its operating  certificate  with  respect  to  new
    34  admissions;  (C) the issuance of a department of health order or commis-
    35  sioner of health's order or the seeking of equitable relief pursuant  to
    36  section  four  hundred  sixty-d  of  the  social  services  law; (D) the
    37  proposed assessment of civil penalties for violations of the  provisions
    38  of  [subparagraph  two  of]  paragraph [(b)] (c) of subdivision seven of
    39  section four hundred sixty-d of the social services law; or placement on
    40  the "do not refer list" pursuant to subdivision fifteen of section  four
    41  hundred  sixty-d  of  the social services law. Referrals may resume when
    42  such enforcement actions are resolved.
    43    § 13. Severability clause. If any provision of this act, or any appli-
    44  cation of any provision of this act,  is  held  to  be  invalid,  or  to
    45  violate  or  be  inconsistent  with  any federal law or regulation, that
    46  shall not affect the validity or effectiveness of any other provision of
    47  this act, which can be given effect without that provision  or  applica-
    48  tion;  and  to that end, the provisions and applications of this act are
    49  severable.
    50    § 14. This act shall take effect on the ninetieth day after  it  shall
    51  have  become  a  law.  Effective immediately, the commissioner of health
    52  shall make regulations and take other  actions  necessary  to  implement
    53  this act on that date.
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