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A04757 Summary:

BILL NOA04757A
 
SAME ASSAME AS S05908
 
SPONSORGottfried
 
COSPNSRDarling, Perry
 
MLTSPNSR
 
Amd 2803-d, add 2803-w, 2803-x & 2803-y, Pub Health L
 
Relates to reporting abuses of persons receiving care or services in residential care facilities; includes misappropriation of property; establishes independent quality monitors and requirements relating to assets of operators.
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A04757 Actions:

BILL NOA04757A
 
02/05/2019referred to health
05/14/2019amend and recommit to health
05/14/2019print number 4757a
05/21/2019reported referred to codes
06/19/2019reported referred to rules
06/20/2019reported
06/20/2019rules report cal.681
06/20/2019substituted by s5908
 S05908 AMEND= RIVERA
 05/16/2019REFERRED TO HEALTH
 06/18/2019COMMITTEE DISCHARGED AND COMMITTED TO RULES
 06/18/2019ORDERED TO THIRD READING CAL.1672
 06/18/2019PASSED SENATE
 06/18/2019DELIVERED TO ASSEMBLY
 06/19/2019referred to codes
 06/20/2019substituted for a4757a
 06/20/2019ordered to third reading rules cal.681
 06/20/2019passed assembly
 06/20/2019returned to senate
 12/10/2019DELIVERED TO GOVERNOR
 12/16/2019SIGNED CHAP.677
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A04757 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4757A
 
SPONSOR: Gottfried
  TITLE OF BILL: An act to amend the public health law, in relation to enhancing transparency and oversight of residential health care facili- ties   PURPOSE OR GENERAL IDEA OF BILL: To strengthen obligations to report abuse of nursing home residents, establish independent quality monitoring of written corrective action plans, and improve transparency relating to facility assets, service contracts, debt obligations, sale and notification to prospective resi- dents.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends Public Health Law § 2803-d to expand the duty to all facility employees and contractors to report to DOH abuse (not just physical abuse), add theft from residents to the report obligation, and require reports not sustained to be sealed rather than expunged. Section 2 adds a new PHL § 2803-w to authorize appointment of independ- ent quality monitors, chosen by DOH, to assure compliance with nursing home written corrective action plans. Section 3 adds a new PHL § 2803-x to require disclosure to DOH of any co-owners or contractors with familial ties to the operator, limit debt obligation, and require 90 day notice to the Department of sale, mort- gage or any encumbrance of facility property. This section would also recoup state funds for capital investment if a facility is sold and then used for a purpose other than providing health care. Section 4 adds a new PHL § 2803-y to require notification to prospective residents of residency agreement terms including rates charged to resi- dents.   JUSTIFICATION: Nursing home facilities, services and populations have changed in recent decades, and while New. York's limits on corporate ownership of health facilities has shielded our facilities from egregious abuses publicized in other states, New York persistently ranks poorly in quality of care, survey and enforcement. This bill is drawn from an earlier DOH program bill aimed at moderniza- tion, with additional features intended to enhance transparency and accountability and enforcement efficacy. These reforms are overdue. Our older adults and incapacitated residents deserve these protections.   PRIOR LEGISLATIVE HISTORY: New bill   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: 120 days after it becomes law.
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A04757 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4757--A
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 5, 2019
                                       ___________
 
        Introduced  by  M.  of  A.  GOTTFRIED  --  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 enhancing trans-
          parency and oversight of residential health care facilities

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section  2803-d  of  the public health law, as amended by
     2  chapter 340 of the laws of 1980, subdivision 1 as amended by chapter 230
     3  of the laws of 2004, paragraph (c) of subdivision 6 as amended by  chap-
     4  ter  414  of the laws of 1986, paragraph (d) of subdivision 6 as amended
     5  by chapter 622 of the laws of 1980 and paragraph (g) of subdivision 6 as
     6  amended by chapter 717 of the laws  of  1989,  is  amended  to  read  as
     7  follows:
     8    §  2803-d.  Reporting  abuses of persons receiving care or services in
     9  residential  health  care  facilities.  1.  The  following  persons  are
    10  required  to  report  in  accordance  with  this  section when they have
    11  reasonable cause to believe that a person receiving care or services  in
    12  a  residential  health  care  facility  has  been  [physically]  abused,
    13  mistreated [or], neglected or subjected to the misappropriation of prop-
    14  erty by other than a person receiving care or services in the  facility:
    15  any operator or employee of such facility, [any person who,] or employee
    16  of any corporation, partnership, organization or other entity which, and
    17  any  other  person  who,  is  under  contract  [to  provide patient care
    18  services in] with such facility, and  any  nursing  home  administrator,
    19  physician,  medical  examiner,  coroner, physician's associate, special-
    20  ist's assistant, osteopath, chiropractor,  physical  therapist,  occupa-
    21  tional  therapist,  registered  professional  nurse,  licensed practical
    22  nurse,  dentist,  podiatrist,  optometrist,  pharmacist,   psychologist,
    23  licensed  master  social worker, licensed clinical social worker, speech
    24  pathologist and audiologist.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07386-03-9

        A. 4757--A                          2
 
     1    2. In addition to those persons required to  report  suspected  [phys-
     2  ical] abuse, mistreatment [or], neglect or misappropriation of the prop-
     3  erty  of  persons  receiving care or services in residential health care
     4  facilities, any other person may make such a report if  he  or  she  has
     5  reasonable cause to believe that a person receiving care or services has
     6  been [physically] abused, mistreated [or], neglected or subjected to the
     7  misappropriation of property in the facility.
     8    3.  Reports  of suspected [physical] abuse, mistreatment [or], neglect
     9  or the misappropriation of property made pursuant to this section  shall
    10  be made immediately by telephone and in writing within forty-eight hours
    11  to  the department.   The department shall provide forms, which shall be
    12  available to be downloaded from the department's website, which may  be,
    13  but are not required to be, used for making the written reports. Written
    14  reports  shall [be made on forms supplied by the commissioner and shall]
    15  include the following information: the identity of the person making the
    16  report and where he can be found; the name and address of  the  residen-
    17  tial  health  care facility; the names of the operator and administrator
    18  of the facility, if known; the name of the subject of the alleged [phys-
    19  ical] abuse, mistreatment [or], neglect or misappropriation of property,
    20  if known; the nature and extent of the  [physical]  abuse,  mistreatment
    21  [or],  neglect  or  misappropriation  of  property;  the  date, time and
    22  specific location of the occurrence; the names of next of kin  or  spon-
    23  sors  of the subject of the alleged [physical] abuse, mistreatment [or],
    24  neglect or misappropriation of property, if known; and any other  infor-
    25  mation  which  the person making the report believes would be helpful to
    26  further the purposes of this section.  Such  written  reports  shall  be
    27  admissible  in evidence, consistent with the provisions of paragraph (f)
    28  of subdivision six of this section, in any actions or proceedings relat-
    29  ing to [physical] abuse, mistreatment [or], neglect or  misappropriation
    30  of  property of persons receiving care or services in residential health
    31  care facilities. Written reports made other than on  forms  supplied  by
    32  the  commissioner which contain the information required herein shall be
    33  treated as if made on such forms.
    34    4. Any person who in good  faith  makes  a  report  pursuant  to  this
    35  section  shall  have immunity from any liability, civil or criminal, for
    36  having made such a report. For the purpose of any proceeding,  civil  or
    37  criminal,  the  good faith of any person required to report instances of
    38  [physical] abuse, mistreatment  [or],  neglect  or  misappropriation  of
    39  property  of  persons  receiving  care or services in residential health
    40  care facilities shall be presumed.
    41    5. Notwithstanding the provisions of section  two  hundred  thirty  of
    42  this  chapter,  any  licensed  person  who  commits an act of [physical]
    43  abuse, mistreatment [or], neglect or misappropriation of property  of  a
    44  person  receiving care or services in a residential health care facility
    45  and any licensed person required by this section to report  an  instance
    46  of  suspected  [physical] abuse, mistreatment [or], neglect or misappro-
    47  priation of property of a person receiving care or services in  a  resi-
    48  dential  health  care  facility  who  fails  to do so shall be guilty of
    49  unprofessional conduct in the practice of his or her profession.
    50    6. (a) Upon receipt of a report made pursuant  to  this  section,  the
    51  commissioner  shall cause an investigation to be made of the allegations
    52  contained in the report. Notification of the receipt of a  report  shall
    53  be made immediately by the department to the appropriate district attor-
    54  ney if a prior request in writing has been made to the department by the
    55  district attorney.  At any time, if the department determines that there
    56  is a reasonable belief that a reported allegation may constitute a crime

        A. 4757--A                          3
 
     1  under  the  laws  of  the  state  of  New York or the United States, the
     2  department shall notify the  appropriate  law  enforcement  official  or
     3  authority.  Prior  to the completion of the investigation by the depart-
     4  ment,  [every]  reasonable effort shall be made to notify, personally or
     5  by certified mail, any person under investigation for  having  committed
     6  an  act  of [physical] abuse, mistreatment [or], neglect or misappropri-
     7  ation of property. The commissioner shall make a written  determination,
     8  based on the findings of the investigation, of whether or not sufficient
     9  credible  evidence  exists  to  sustain the allegations contained in the
    10  report or would support a conclusion that a person  not  named  in  such
    11  report has committed an act of [physical] abuse, neglect [or], mistreat-
    12  ment  or  misappropriation  of property. A copy of such written determi-
    13  nation, together with a notice of the right to a hearing as provided  in
    14  this  subdivision, shall be sent by registered or certified mail to each
    15  person who the commissioner has  determined  has  committed  an  act  of
    16  [physical]  abuse,  neglect  [or],  mistreatment  or misappropriation of
    17  property. A letter shall be sent to any other  person  alleged  in  such
    18  report  to  have  committed such an act stating that a determination has
    19  been made that there is not sufficient evidence to sustain  the  allega-
    20  tions  relating  to  such  person. A copy of each such determination and
    21  letter shall be sent to the  facility  in  which  the  alleged  incident
    22  occurred.
    23    (b)  The  commissioner  may make a written determination, based on the
    24  findings of the investigation, that sufficient credible evidence  exists
    25  to support a conclusion that a person required by this section to report
    26  suspected  [physical]  abuse, mistreatment [or], neglect or misappropri-
    27  ation of property had reasonable cause to believe that such an  incident
    28  occurred  and  failed  to  report  such incident. A copy of such written
    29  determination, together with a notice of  the  right  to  a  hearing  as
    30  provided  in  this subdivision, shall be sent by registered or certified
    31  mail to each person who the commissioner has determined  has  failed  to
    32  report as required by this section.
    33    (c)  All information relating to any allegation which the commissioner
    34  has determined would not be sustained shall  be  [expunged]  sealed  one
    35  hundred  twenty days following notification of such determination to the
    36  person who made the report pursuant to this section, unless a proceeding
    37  pertaining to such allegation is pending pursuant  to  article  seventy-
    38  eight  of  the  civil  practice  law  and rules. Whenever information is
    39  [expunged] sealed, the commissioner shall notify any  official  notified
    40  pursuant  to  paragraph (a) of this subdivision that the information has
    41  been [expunged] sealed.
    42    (d) At any time within thirty days of the  receipt  of  a  copy  of  a
    43  determination  made  pursuant  to  this  section, a person named in such
    44  determination as having committed an act of  [physical]  abuse,  neglect
    45  [or],  mistreatment or misappropriation of property, or as having failed
    46  to report such an incident, may request in writing that the commissioner
    47  amend or [expunge] seal the record of such report, to  the  extent  such
    48  report  applies  to  such  person, or such written determination. If the
    49  commissioner does not comply with such request within thirty days,  such
    50  person  shall  have the right to a fair hearing to determine whether the
    51  record of the report or the written determination should be  amended  or
    52  [expunged]  sealed  on  the grounds that the record is inaccurate or the
    53  determination is not supported by the evidence. The burden of  proof  in
    54  such  hearing  shall  be  on  the  department.  Whenever  information is
    55  [expunged] sealed, the commissioner shall notify any  official  notified

        A. 4757--A                          4
 
     1  pursuant  to  paragraph (a) of this subdivision that the information has
     2  been [expunged] sealed.
     3    (e) Except as hereinafter provided, any report, record of the investi-
     4  gation  of  such report and all other information related to such report
     5  shall be confidential and shall be exempt from disclosure under  article
     6  six of the public officers law.
     7    (f)  Information  relating  to  a report made pursuant to this section
     8  shall be disclosed under any of the following conditions:
     9    (i) pursuant to article six of the public officers law after [expunge-
    10  ment] sealing or amendment, if any, is made in accordance with a hearing
    11  conducted pursuant to this section, or at least forty-five days after  a
    12  written  determination  is  made  by  the  commissioner  concerning such
    13  report, whichever is later; provided, however, that the identity of  the
    14  person  who  made  the  report,  the  victim, or any other person named,
    15  except a person who the commissioner has determined committed an act  of
    16  [physical]  abuse,  neglect  [or],  mistreatment  or misappropriation of
    17  property, shall not be disclosed  unless  such  person  authorizes  such
    18  disclosure;
    19    (ii)  as  may  be  required  by  the  penal law or any lawful order or
    20  warrant issued pursuant to the criminal procedure law; or
    21    (iii) to a person  who  has  requested  a  hearing  pursuant  to  this
    22  section,  information relating to the determination upon which the hear-
    23  ing is to be conducted; provided, however,  that  the  identity  of  the
    24  person  who made the report or any other person who provided information
    25  in an investigation of the report shall not  be  disclosed  unless  such
    26  person authorizes such disclosure.
    27    (g)  Where  appropriate,  the  commissioner  shall report instances of
    28  [physical] abuse, mistreatment  [or],  neglect  or  misappropriation  of
    29  property  or  the  failure to report as required by this section, to the
    30  appropriate  committee  on  professional  conduct  for  the  professions
    31  enumerated  in  subdivision one of this section when a determination has
    32  been made after the commissioner  has  provided  an  opportunity  to  be
    33  heard.  The  commissioner  shall  report  instances of [physical] abuse,
    34  mistreatment, neglect [or], misappropriation of [resident] property by a
    35  nurse aide or other unlicensed individual and any brief statement by the
    36  nurse aide or other unlicensed individual disputing the finding  to  the
    37  nursing  home  nurse aide registry established pursuant to section twen-
    38  ty-eight hundred three-j of this article when a determination  has  been
    39  made after the commissioner has provided an opportunity to be heard.
    40    7.  In  addition  to any other penalties prescribed by law, any person
    41  who commits an act of [physical] abuse, neglect  [or],  mistreatment  or
    42  misappropriation  of  property,  or  who  fails to report such an act as
    43  provided in this section, shall be deemed to have violated this  section
    44  and  shall  be  liable  for a penalty pursuant to section twelve of this
    45  chapter after an opportunity to be heard pursuant to this section.
    46    8. No residential health care facility or officer or employee  thereof
    47  shall  discharge  or in any manner discriminate or retaliate against any
    48  person in any residential health care  facility,  or  any  relative,  or
    49  sponsor thereof, or against any employee of the facility, or against any
    50  other  person because such person, relative, legal representative, spon-
    51  sor or employee has made, or is about to make, a report pursuant to this
    52  section, or has testified, or is about to  testify,  in  any  proceeding
    53  relating to [physical] abuse, mistreatment [or], neglect or misappropri-
    54  ation  of  property of a person receiving care or services in a residen-
    55  tial health care facility.   The  supreme  court  may  grant  injunctive
    56  relief  to any person subject to such retaliation or discrimination. Any

        A. 4757--A                          5
 
     1  violation of this subdivision shall be punishable  pursuant  to  section
     2  twelve of this chapter.
     3    9.  No later than March fifteenth of every year the commissioner shall
     4  prepare and transmit to the governor and the legislature a report on the
     5  incidents of [physical] abuse, mistreatment [and], neglect and misappro-
     6  priation of property of persons receiving care or services  in  residen-
     7  tial  health  care  facilities.  No  individual  identifying information
     8  concerning any individual [or facility] subjected  to  abuse,  mistreat-
     9  ment,  neglect  or  misappropriation of property shall be disclosed in a
    10  report made pursuant to this subdivision, or in any other report, except
    11  information which would be available pursuant  to  article  six  of  the
    12  public officers law as provided in this section. Nothing in this section
    13  shall  be  construed  to  prohibit  the maintenance or disclosure of, or
    14  require the [expungement] sealing of, statistical data which  would  not
    15  reveal the identity of any person [or facility].
    16    10.  An investigation shall be made of each incident reported pursuant
    17  to this section[, but only the provisions of paragraphs (e) and  (f)  of
    18  subdivision  six, and subdivisions two, four, eight and nine shall apply
    19  to physical abuse by persons receiving care or services  in  residential
    20  health care facilities].
    21    11.  The commissioner shall adopt [rules and] regulations necessary to
    22  implement this section.
    23    § 2. The public health law is amended by adding a new  section  2803-w
    24  to read as follows:
    25    §  2803-w.  Independent  quality  monitors for residential health care
    26  facilities. The department may require a residential health care facili-
    27  ty to contract with an independent  quality  monitor  selected,  and  on
    28  reasonable  terms determined, by the department, pursuant to a selection
    29  process conducted notwithstanding sections one  hundred  twelve  or  one
    30  hundred sixty-three of the state finance law, for purposes of monitoring
    31  the  operator's  compliance with a written and mandatory corrective plan
    32  and reporting to the department on the implementation of such corrective
    33  action, when the department has determined in its discretion that opera-
    34  tional deficiencies exist at such facility that show:
    35    1. a condition or conditions in substantial violation of the standards
    36  for health, safety, or resident care established in  law  or  regulation
    37  that constitute a danger to resident health or safety;
    38    2.  a  pattern  or  practice of habitual violation of the standards of
    39  health, safety, or resident care established in law or regulation; or
    40    3. any other condition dangerous to resident life, health, or  safety.
    41  Such  written  mandatory corrective plans shall include caps on adminis-
    42  trative and general costs that are unrelated to  providing  direct  care
    43  (including  providing  at least minimum staffing levels as determined by
    44  the department) or care coordination.
    45    § 3. The public health law is amended by adding a new  section  2803-x
    46  to read as follows:
    47    §  2803-x.  Requirements related to residential health care facilities
    48  and related assets. 1. The operator of a residential health care facili-
    49  ty shall notify the commissioner of any common or familial ownership  of
    50  any  corporation,  other  entity or individual providing services to the
    51  operator or the facility.
    52    2. The operator of a residential health care  facility  shall,  on  an
    53  annual  basis,  attest  to  the  department, in a form determined by the
    54  department, to the accuracy of the information provided to  the  depart-
    55  ment under this section.

        A. 4757--A                          6
 
     1    3.  The  operator  of a residential health care facility may not enter
     2  into any arrangement to guarantee the debt  or  other  obligation  of  a
     3  party which has not received establishment approval.
     4    4. The operator of a residential health care facility shall notify the
     5  department at least ninety days prior to executing a letter of intent or
     6  other  contractual  agreement  related  to  the sale, mortgaging, encum-
     7  brance, or other disposition of the real property of the facility.
     8    5. In any instance where a residential health care facility is sold or
     9  otherwise transferred and used for a purpose which is not a health  care
    10  purpose, the operator shall remit to the department an amount equivalent
    11  to  the undepreciated value of capital assets for which the provider has
    12  been funded or reimbursed through Medicaid rate adjustments or otherwise
    13  funded or reimbursed with  resources  provided  by  the  state  for  the
    14  purpose of improvement or transformation.
    15    §  4.  The public health law is amended by adding a new section 2803-y
    16  to read as follows:
    17    § 2803-y. Provision of residency agreement.  The operator of  a  resi-
    18  dential  health care facility shall provide to prospective residents who
    19  inquire about admission, and post on its website, a copy of the  facili-
    20  ty's entire approved residency agreement, including the non-governmental
    21  rates charged to residents.
    22    §  5. Severability clause. If any provision of this act, or any appli-
    23  cation of any provision of this act,  is  held  to  be  invalid,  or  to
    24  violate  or  be  inconsistent  with  any federal law or regulation, that
    25  shall not affect the validity or effectiveness of any other provision of
    26  this act, which can be given effect without that provision  or  applica-
    27  tion;  and  to that end, the provisions and applications of this act are
    28  severable.
    29    § 6. This act shall take effect on the one hundred twentieth day after
    30  it shall have become a law.  Effective immediately, the commissioner  of
    31  health shall make regulations and take other actions necessary to imple-
    32  ment this act on that date.
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