Requires operators of nursing homes and residential health care facilities to provide notification of certain contracts and agreements to all residents, representatives, staff and the office of the long-term care ombudsman.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5684A
TITLE OF BILL:
An act to amend the public health law, in relation to requirements for
residential health care facilities and nursing homes
PURPOSE OR GENERAL IDEA OF BILL:
To ensure that nursing home operators and owners who come before the
Public Health and Health Planning Council (PHHPC) for change of owner-
ship or operations are reviewed and approved based upon several quality
metrics before they are entrusted with the care of additional individ-
uals. The bill also enhances transparency around related assets and
operations of nursing homes as well as of applications for changes to
ownership and/or operation of a facility.
SUMMARY OF SPECIFIC PROVISIONS:
Adds a new subdivision 2-b to Public Health Law § 2801-a to provide
notice to the public, the state long term care ombudsman, and other
stakeholders of any proposed certificates of need or applications on the
Department of Health's website within 30 days of receipt and provide a
90-day comment period. PHHPC shall not take any action contrary to the
advice of the long-term care ombudsman until after a public hearing.
PHHPC shall adopt rules to guide its determination that "that a substan-
tially consistent high level of care has been rendered" by an applicant.
The rules would eliminate applicants that have a history of state or
federal violations of immediate jeopardy or actual harm; receivership,
revocation, or involuntary termination from Medicare or Medicaid; or
conviction of patient abuse, neglect or exploitation. The bill amends
Public Health Law section 2803-x to ensure information on nursing home
assets and operations, including familial ownership relationships, be
made public. It requires operators to notify the Department 90 days
prior to entering into any new common or family ownership of a services
provider to the operator. It also requires notice of contractual agree-
ments relative to a sale, mortgage, management, operations, and staffing
agencies and prohibits delegating operational control to such contrac-
tors. New owners, operators or management must maintain direct care
staff for a 60-day transition period without reducing their wages, bene-
fits or terms of employment.
This bill will reform the certificate of need process by which we assure
that nursing home operators are capable and committed to quality fore-
most. Entities with histories of poor care have frequently been able to
take ownership of additional nursing homes in New York. This must end.
We must take this opportunity to instill the highest standards possible
and make sure our nursing homes provide high quality care.
The recent experience of the COVID-I9 pandemic and the disproportionate
number of nursing home residents who contracted and succumbed to the
virus shines a bright light on the need for reforms that have been
debated for decades prior to the pandemic. During the NYS Legislatures'
Joint Public Hearings on COVID-19 in residential health care facilities,
heart breaking testimony was heard from residents, families, staff
members and advocates. Nursing home operators worried that the dropping
numbers of post-acute rehabilitation clients would no longer subsidize
their long-term residents.
PRIOR LEGISLATIVE HISTORY:
STATE OF NEW YORK
2021-2022 Regular Sessions
February 23, 2021
Introduced by M. of A. GOTTFRIED, GALEF, CLARK, TAYLOR, PAULIN, ABINAN-
TI, BICHOTTE HERMELYN, McDONALD, HEVESI, BRONSON, WALLACE, STECK,
DINOWITZ, THIELE, PERRY, GONZALEZ-ROJAS, ENGLEBRIGHT, JACKSON, CUSICK,
ANDERSON, SIMON, BARRETT, SILLITTI -- read once and referred to the
Committee on Health -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the public health law, in relation to requirements for
residential health care facilities and nursing homes
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 2801-a of the public health law is amended by
2 adding two new subdivisions 2-b and 3-b to read as follows:
3 2-b. (a) This subdivision applies with respect to an application under
4 this section relating to the incorporation or establishment of any nurs-
5 ing home, in addition to subdivision two of this section.
6 (b) The council shall provide notice of the application to the public
7 on the department's website within thirty days of receipt of it and
8 provide it to the state office of the long-term care ombudsman and the
9 regional office having geographical jurisdiction of the area where the
10 nursing home is to be or is located. In the case of an application
11 relating to an existing nursing home, the notice shall also be provided
12 in writing or electronically to residents of the nursing home and their
13 representatives, and the staff of the nursing home and their represen-
15 (c) The council shall provide a mechanism for submitting written
16 comments electronically on the application to the council; and provide
17 at least ninety days for the comment period. The terms of the written
18 comment process shall be included in the notice under paragraph (a) of
19 this subdivision.
20 (d) The council shall forward a copy of the application, and accompa-
21 nying documents, to the state office of the long-term care ombudsman and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 5684--A 2
1 the regional office having geographical jurisdiction of the area where
2 the nursing home is or is to be located within thirty days of receipt of
3 the application. The council shall not act upon such application until
4 after the state office of the long-term care ombudsman, regional office
5 and the parties entitled to notice have had a reasonable time, but not
6 less than ninety days, to submit their recommendations. At the time
7 members of the council are notified that an application is scheduled for
8 consideration, the applicant, and the parties entitled to the notice
9 under paragraph (a) of this subdivision shall be so notified in writing
10 or electronically. The council shall afford the applicant an opportunity
11 to present information in person concerning the application to a commit-
12 tee designated by the council. The council shall not take any action
13 contrary to the advice of the state office of the long-term care ombuds-
14 man or the regional office until it affords the state or regional office
15 an opportunity to request a public hearing and, if so requested, the
16 public hearing is held. If the council proposes to disapprove the appli-
17 cation it shall afford the applicant an opportunity to request and
18 testify at a public hearing. The council may hold a public hearing on
19 the application on its own motion or upon the written request of any
21 (e) Where this subdivision is inconsistent with subdivision two of
22 this section, this subdivision shall prevail.
23 3-b. (a) This subdivision applies to an application under this section
24 relating to a nursing home, and applies in addition to subdivision three
25 of this section.
26 (b) The application shall provide information as to the character,
27 competence and standing in the community of every present or proposed
28 controlling person, principal stockholder or principal member of the
29 applicant, the identity of every nursing home in which each of those
30 individuals or entities is, or in the preceding five years has been, a
31 controlling person, principal stockholder or principal member; and the
32 nature of that interest. The council shall not approve the application
33 unless it finds that each of those individuals and entities, in relation
34 to each such nursing home, for at least the previous three years, demon-
35 strated satisfactory character, competence and standing in the community
36 and the nursing home provided a consistently high level of care. The
37 council shall adopt rules and regulations, subject to the approval of
38 the commissioner, to establish the criteria to be used to determine
39 whether a consistently high level of care has or has not been rendered
40 by an applicant where one or more controlling persons, principal stock-
41 holders or principal members of the applicant is a controlling person,
42 principal stockholder or principal member of a nursing home located in
43 the United States. The council shall not consider that a consistently
44 high level of care has been delivered at a facility in the United States
45 that has earned a two-star rating or less by the federal center for
46 Medicare and Medicaid Services' (CMS) (or a comparable rating under a
47 successor CMS rating system) or where there have been violations of the
48 state or federal nursing home code, or other applicable rules and regu-
49 lations, that threatened to directly affect the health, safety or
50 welfare of any patient or resident, including but not limited to a find-
51 ing of immediate jeopardy, or actual harm, and were recurrent or were
52 not promptly corrected, including but not limited to repeat deficiencies
53 for the same or similar violations over a three year period or during
54 the entire duration of ownership if less than three years, or any facil-
55 ity which has been in receivership; closed as a result of a settlement
56 agreement from a decertification action or licensure revocation; or has
A. 5684--A 3
1 been involuntarily terminated from the Medicare or Medicaid program in
2 the prior five years, provided however, that where an applicant has
3 taken over a facility and promptly corrected such deficiencies, the
4 council may consider the application.
5 (c) Where this subdivision is inconsistent with subdivision three of
6 this section, this subdivision shall prevail.
7 § 2. Section 2803-x of the public health law, as added by chapter 677
8 of the laws of 2019, is amended to read as follows:
9 § 2803-x. Requirements related to [residential health care facilities]
10 nursing homes and related assets and operations. 1. The operator of a
11 [residential health care facility] nursing home shall notify the commis-
12 sioner of any common or familial ownership of any corporation, other
13 entity or individual providing services to the operator or the facility.
14 Such information shall also be included in the residency agreement for
15 prospective residents and as addendums for residents currently residing
16 in the residential health care facility nursing home. The operator shall
17 notify the department at least ninety days prior to entering into any
18 new common or familial ownership of any corporation, or other entity or
19 individual providing services to the operator of the facility. The oper-
20 ator shall also provide notification to all residents and their repre-
21 sentatives, staff and their representatives, and the state office of the
22 long-term care ombudsman.
23 2. The operator of a [residential health care facility] nursing home
24 shall, on an annual basis, attest to the department, in a form deter-
25 mined by the department, to the accuracy of the information provided to
26 the department under this section.
27 3. The operator of a [residential health care facility] nursing home
28 may not enter into any arrangement to guarantee the debt or other obli-
29 gation of a party which has not received establishment approval.
30 4. The operator of a [residential health care facility] nursing home
31 shall notify the department at least ninety days prior to executing a
32 letter of intent or other contractual agreement related to:
33 a. the sale, mortgaging, encumbrance, or other disposition of the real
34 property of the facility; and
35 b. the management, operations, staffing agency or other entity to be
36 involved in the operations of the facility.
37 5. The department, shall, within ten days after receipt of a notifica-
38 tion required under subdivision four of this section, notify the state
39 office of the long-term care ombudsman of an operator of nursing home's
40 intent to execute a binding letter of intent or other contractual agree-
41 ment related to:
42 a. the sale, mortgaging, encumbrance, or other disposition of the real
43 property of the facility; and
44 b. the management, operations, staffing agency or other entity to be
45 involved in the operations of the facility.
46 6. The operator of a nursing home shall notify all residents and their
47 representatives, staff and their representatives, and the state office
48 of the long-term care ombudsman within five days of executing a binding
49 letter of intent or other contractual agreement as described in para-
50 graphs a and b of subdivision four of this section.
51 7. Where the operator of a nursing home provides or purports to
52 provide, by any contract, agreement or arrangement, for any party to
53 carry out or be delegated any activity or responsibility relating to the
54 nursing home, that shall not diminish any responsibility or liability
55 that the operator would otherwise have for any such activity or respon-
56 sibility or for the operation of the nursing home.
A. 5684--A 4
1 8. Any new owner, operator or management company of a nursing home
2 shall retain all employees of the nursing home for at least a sixty-day
3 transition period, except for the nursing home administrator and the
4 director of nursing, or any controlling person, principal stockholder or
5 principal member, and shall not reduce the wages or benefits, or modify
6 any other terms and conditions of employment, economic or otherwise
7 during the transition period, and except for cause.
8 9. In any instance where a [residential health care facility] nursing
9 home is sold or otherwise transferred and used for a purpose which is
10 not a health care purpose, the operator shall remit to the department an
11 amount equivalent to the undepreciated value of capital assets for which
12 the provider has been funded or reimbursed through Medicaid rate adjust-
13 ments or otherwise funded or reimbursed with resources provided by the
14 state for the purpose of improvement or transformation.
15 § 3. This act shall take effect immediately.