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A05684 Summary:

BILL NOA05684A
 
SAME ASSAME AS S04893-A
 
SPONSORGottfried
 
COSPNSRGalef, Clark, Taylor, Paulin, Abinanti, Bichotte Hermelyn, McDonald, Hevesi, Bronson, Wallace, Steck, Dinowitz, Thiele, Perry, Gonzalez-Rojas, Englebright, Jackson, Cusick, Anderson, Simon, Barrett, Sillitti, Jacobson, Cook, McMahon, Richardson, Forrest, Buttenschon, Santabarbara, Durso, Meeks, Weinstein, Burgos, Fernandez, Carroll, Epstein, Lunsford, Stirpe, Lupardo, Otis, Colton, Zebrowski, Peoples-Stokes, Barron, Reyes, Fall, Rosenthal L
 
MLTSPNSR
 
Amd §§2801-a & 2803-x, Pub Health L
 
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.
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A05684 Actions:

BILL NOA05684A
 
02/23/2021referred to health
03/01/2021amend and recommit to health
03/01/2021print number 5684a
03/09/2021reported referred to codes
03/09/2021reported referred to rules
03/09/2021reported
03/09/2021rules report cal.37
03/09/2021ordered to third reading rules cal.37
03/09/2021passed assembly
03/09/2021delivered to senate
03/09/2021REFERRED TO HEALTH
03/24/2021SUBSTITUTED FOR S4893A
03/24/20213RD READING CAL.372
03/24/2021PASSED SENATE
03/24/2021RETURNED TO ASSEMBLY
04/13/2021delivered to governor
04/24/2021signed chap.102
04/27/2021approval memo.5
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A05684 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5684A
 
SPONSOR: Gottfried
  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.   JUSTIFICATION: 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: New bill   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: Immediately
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A05684 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5684--A
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    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-
    14  tatives.
    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.
                                                                   LBD07696-04-1

        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
    20  person.
    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.
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