Relates to enhancing mechanisms to ensure quality standards for licensed or certified providers; relates to enhancing transparency and oversight of residential health care facilities (Part A); relates to requiring the registration of licensed home care services agencies (Part B); relates to enhancing transparency and oversight of adult care facilities (Part C); relates to increasing monetary penalties for public health law violations (Part D).
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A10139
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 (Part A); to amend the public health law, in relation to requiring
the registration of licensed home care services agencies (Part B); to
amend the social services law, in relation to enhancing transparency and
oversight of adult care facilities (Part C); and to amend the public
health law, in relation to increasing monetary penalties for public
health law violations (Part D)
 
PURPOSE OF THE BILL:
To enhance the quality, safety and transparency of and access to the
health system, particularly with respect to long term care services, by
improving the availability of relevant information to consumers and the
Department of Health (Department) and encouraging conduct that promotes
patient safety and improvements in individual and population health.
 
SUMMARY OF PROVISIONS:
Part A of the bill would enact provisions in order to enhance transpar-
ency and oversight of nursing homes by 1) amending Public Health Law
(PHL) § 2803-d to redefine "physical abuse" as "abuse" and add the
misappropriation of resident property to the definition of abuse, 2)
adding a new PHL § 2803-v to authorize the Department require a nursing
home to contract with an Independent Quality Monitor approved by the
Department where warranted due to operational deficiencies demonstrating
the existence of certain conditions, 3) adding a new PHL § 2803-w to
enhance nursing home transparency by requiring nursing home operators to
notify the Department of any common or familial ownership and attesting
on an annual basis as to the accuracy of the information on file regard-
ing ownership, amongst other new provisions, and 4) adding a new PHL §
2803-x to require nursing homes to provide the facility's approved resi-
dency information to prospective residents and to post the information
on the facility's website.
Part B of the bill would require registration of Licensed Home Care
Services Agencies (LHCSA) by amending PHL § 3605-a to provide that no
licensed home care services agency shall be permitted to operate unless
it has registered with the Department pursuant to new section PHL §
3605-b, which authorizes the imposition of late fees where registration
is not made in timely fashion, and requires the Department to seek revo-
cation where a LHCSA fails to register for two years, whether or not
such years are consecutive. The Department would be required to post on
its public website a list of all LHCSAs and the current registration
status of each.
Part C would enact provisions enhancing transparency and oversight of
Adult Care Facilities (ACF) by amending Social Services Law (SSL) §
460-d(7) to 1) authorize the Department to impose monetary penalties
upon an ACF after a cited violation rather than only if the operator
fails to correct the violation and increase the maximum fines available
in cases where the violation involved endangerment from $1,000 per day
to $2,000 per day; 2) amend SSL § 460-d(9) to authorize the Department
to enter and survey an adult home, enriched housing program, or resi-
dence for adults suspected of being a scofflaw facility without a court
order if it has reason to believe that one or more conditions or activ-
ities at such facility constitute or are likely to give rise to an imme-
diate danger to the health of the residents; 3) add a new SSL §
460-d(17) to authorize the Department to require an adult home or an
enriched program to contract with an Independent Quality Monitor
approved by the Department where-warranted due to operational deficien-
cies demonstrating the existence of certain conditions; 4) amend SSL §
461a(2) to provide that inspection reports need not include directions
on how compliance can be achieved and add a new SSL § 461-a(5) to extend
the survey cycle applicable to the Department's highest rated facilities
and permit them to elect to obtain and maintain accreditation in lieu of
the Department's regular, unannounced inspections; 5) add a new SSL §
461-c(10) to require the operators of adult homes and enriched housing
programs to provide a copy of their approved residency agreement to
prospective residents; and 6) add a new SSL § 461-e(3-a) to require
adult homes and enriched housing programs to post and provide to resi-
dents and prospective residents a summary of any report of inspection
based on a complaint issued to the facility by the Department within the
previous year.
Part D would increase the maximum amounts of fines that can be imposed
on individuals that violate the NIL and any notices, orders or regu-
lations issued thereunder, and would authorize the Commissioner to rein-
vest certain civil penalties collected from providers licensed under PHL
Articles 28, 36 or 40 for the purpose of supporting improvements in
quality.
 
JUSTIFICATION:
This bill would enhance the quality, safety and transparency of and
access to the health system, particularly with respect to long term care
services, by improving the availability of relevant information to
facilitate decision making and encouraging conduct that promotes patient
safety and improvements in individual and population health. The bill
would institute or strengthen several mechanisms to encourage improve-
ments in performance and compliance with statutory and regulatory stand-
ards. Part A of the bill would enhance transparency and improve the
Department's oversight of nursing homes. Part B of the bill would
strengthen Department oversight over LHCSAs by prohibiting them from
operating, providing services, or receiving reimbursement from any
source for the provision of such services unless they have registered
with the Department. Part C of the bill would enhance transparency and
improve the Department's oversight of the ACFs it licenses under SSL
Article 7, which includes assisted living residences licensed or certi-
fied pursuant to PHL Article 46-B. Part D of the bill would strengthen
the maximum monetary penalties for violations of the Public Health Law
and related orders and regulations, which currently are not high enough
to serve as a sufficient deterrent to improper conduct.
 
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
 
FISCAL IMPLICATIONS:
None of the foregoing proposals are anticipated to result in a direct
fiscal impact. However, all are expected to generate long term savings
to the overall health system by supporting informed decision making and
encouraging conduct that promotes patient safety and improvements in
individual and population health.
 
EFFECTIVE DATE:
Effective immediately, provided that the effective date for each part is
set forth therein.
STATE OF NEW YORK
________________________________________________________________________
10139
IN ASSEMBLY
March 19, 2018
___________
Introduced by M. of A. GOTTFRIED -- (at request of the Department of
Health) -- read once and referred to the Committee on Health
AN ACT to amend the public health law, in relation to enhancing trans-
parency and oversight of residential health care facilities (Part A);
to amend the public health law, in relation to requiring the registra-
tion of licensed home care services agencies (Part B); to amend the
social services law, in relation to enhancing transparency and over-
sight of adult care facilities (Part C); and to amend the public
health law, in relation to increasing monetary penalties for public
health law violations (Part D)
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act enacts into law components of legislation which
2 are necessary to strengthen the department of health's ability to
3 promote quality in the provision of health care, particularly long-term
4 care. Each component is wholly contained within a Part identified as
5 Parts A through D. The effective date for each particular provision
6 contained within such Part is set forth in the last section of such
7 Part. Any provision in any section contained within a Part, including
8 the effective date of the Part, which makes a reference to a section "of
9 this act," when used in connection with that particular component, shall
10 be deemed to mean and refer to the corresponding section of the Part in
11 which it is found. Section three of this act sets forth the general
12 effective date of this act.
13 PART A
14 Section 1. Section 2803-d of the public health law, as amended by
15 chapter 340 of the laws of 1980, subdivision 1 as amended by chapter 230
16 of the laws of 2004, paragraph (c) of subdivision 6 as amended by chap-
17 ter 414 of the laws of 1986, paragraph (d) of subdivision 6 as amended
18 by chapter 622 of the laws of 1980 and paragraph (g) of subdivision 6 as
19 amended by chapter 717 of the laws of 1989, is amended to read as
20 follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14506-01-8
A. 10139 2
1 § 2803-d. Reporting abuses of persons receiving care or services in
2 residential health care facilities. 1. The following persons are
3 required to report in accordance with this section when they have
4 reasonable cause to believe that a person receiving care or services in
5 a residential health care facility has been [physically] abused,
6 mistreated or neglected or subjected to the misappropriation of property
7 by other than a person receiving care or services in the facility: any
8 operator or employee of such facility, [any person who,] or employee of
9 any corporation, partnership, organization or other entity which, is
10 under contract to provide patient care services in such facility, and
11 any nursing home administrator, physician, medical examiner, coroner,
12 physician's associate, specialist's assistant, osteopath, chiropractor,
13 physical therapist, occupational therapist, registered professional
14 nurse, licensed practical nurse, dentist, podiatrist, optometrist, phar-
15 macist, psychologist, licensed master social worker, licensed clinical
16 social worker, speech pathologist and audiologist.
17 2. In addition to those persons required to report suspected [phys-
18 ical] abuse, mistreatment or neglect or misappropriation of the property
19 of persons receiving care or services in residential health care facili-
20 ties, any other person may make such a report if he or she has reason-
21 able cause to believe that a person receiving care or services has been
22 [physically] abused, mistreated or neglected in the facility or
23 subjected to the misappropriation of property.
24 3. Reports of suspected [physical] abuse, mistreatment or neglect or
25 the misappropriation of resident property made pursuant to this section
26 shall be made immediately by telephone and in writing within forty-eight
27 hours to the department. Written reports shall be made on forms supplied
28 by the commissioner and shall include the following information: the
29 identity of the person making the report and where he can be found; the
30 name and address of the residential health care facility; the names of
31 the operator and administrator of the facility, if known; the name of
32 the subject of the alleged [physical] abuse, mistreatment or neglect or
33 misappropriation, if known; the nature and extent of the [physical]
34 abuse, mistreatment or neglect or misappropriation; the date, time and
35 specific location of the occurrence; the names of next of kin or spon-
36 sors of the subject of the alleged [physical] abuse, mistreatment or
37 neglect or misappropriation, if known; and any other information which
38 the person making the report believes would be helpful to further the
39 purposes of this section. Such written reports shall be admissible in
40 evidence, consistent with the provisions of paragraph (f) of subdivision
41 six of this section, in any actions or proceedings relating to [phys-
42 ical] abuse, mistreatment or neglect or misappropriation of the property
43 of persons receiving care or services in residential health care facili-
44 ties. Written reports made other than on forms supplied by the commis-
45 sioner which contain the information required herein shall be treated as
46 if made on such forms.
47 4. Any person who in good faith makes a report pursuant to this
48 section shall have immunity from any liability, civil or criminal, for
49 having made such a report. For the purpose of any proceeding, civil or
50 criminal, the good faith of any person required to report instances of
51 [physical] abuse, mistreatment or neglect or misappropriation of the
52 property of persons receiving care or services in residential health
53 care facilities shall be presumed.
54 5. Notwithstanding the provisions of section two hundred thirty of
55 this chapter, any licensed person who commits an act of [physical]
56 abuse, mistreatment or neglect or misappropriation of the property of a
A. 10139 3
1 person receiving care or services in a residential health care facility
2 and any licensed person required by this section to report an instance
3 of suspected [physical] abuse, mistreatment or neglect or misappropri-
4 ation of the property of a person receiving care or services in a resi-
5 dential health care facility who fails to do so shall be guilty of
6 unprofessional conduct in the practice of his or her profession.
7 6. (a) Upon receipt of a report made pursuant to this section, the
8 commissioner shall cause an investigation to be made of the allegations
9 contained in the report. Notification of the receipt of a report shall
10 be made immediately by the department to the appropriate district attor-
11 ney if a prior request in writing has been made to the department by the
12 district attorney. Prior to the completion of the investigation by the
13 department, every reasonable effort shall be made to notify, personally
14 or by certified mail, any person under investigation for having commit-
15 ted an act of [physical] abuse, mistreatment or neglect or misappropri-
16 ation of property. The commissioner shall make a written determination,
17 based on the findings of the investigation, of whether or not sufficient
18 credible evidence exists to sustain the allegations contained in the
19 report or would support a conclusion that a person not named in such
20 report has committed an act of [physical] abuse, neglect or mistreatment
21 or misappropriation of property. A copy of such written determination,
22 together with a notice of the right to a hearing as provided in this
23 subdivision, shall be sent by registered or certified mail to each
24 person who the commissioner has determined has committed an act of
25 [physical] abuse, neglect or mistreatment or misappropriation of proper-
26 ty. A letter shall be sent to any other person alleged in such report to
27 have committed such an act stating that a determination has been made
28 that there is not sufficient evidence to sustain the allegations relat-
29 ing to such person. A copy of each such determination and letter shall
30 be sent to the facility in which the alleged incident occurred.
31 (b) The commissioner may make a written determination, based on the
32 findings of the investigation, that sufficient credible evidence exists
33 to support a conclusion that a person required by this section to report
34 suspected [physical] abuse, mistreatment or neglect or misappropriation
35 of property had reasonable cause to believe that such an incident
36 occurred and failed to report such incident. A copy of such written
37 determination, together with a notice of the right to a hearing as
38 provided in this subdivision, shall be sent by registered or certified
39 mail to each person who the commissioner has determined has failed to
40 report as required by this section.
41 (c) All information relating to any allegation which the commissioner
42 has determined would not be sustained shall be expunged one hundred
43 twenty days following notification of such determination to the person
44 who made the report pursuant to this section, unless a proceeding
45 pertaining to such allegation is pending pursuant to article seventy-
46 eight of the civil practice law and rules. Whenever information is
47 expunged, the commissioner shall notify any official notified pursuant
48 to paragraph (a) of this subdivision that the information has been
49 expunged.
50 (d) At any time within thirty days of the receipt of a copy of a
51 determination made pursuant to this section, a person named in such
52 determination as having committed an act of [physical] abuse, neglect or
53 mistreatment or misappropriation of resident property, or as having
54 failed to report such an incident, may request in writing that the
55 commissioner amend or expunge the record of such report, to the extent
56 such report applies to such person, or such written determination. If
A. 10139 4
1 the commissioner does not comply with such request within thirty days,
2 such person shall have the right to a fair hearing to determine whether
3 the record of the report or the written determination should be amended
4 or expunged on the grounds that the record is inaccurate or the determi-
5 nation is not supported by the evidence. The burden of proof in such
6 hearing shall be on the department. Whenever information is expunged,
7 the commissioner shall notify any official notified pursuant to para-
8 graph (a) of this subdivision that the information has been expunged.
9 (e) Except as hereinafter provided, any report, record of the investi-
10 gation of such report and all other information related to such report
11 shall be confidential and shall be exempt from disclosure under article
12 six of the public officers law.
13 (f) Information relating to a report made pursuant to this section
14 shall be disclosed under any of the following conditions:
15 (i) pursuant to article six of the public officers law after expunge-
16 ment or amendment, if any, is made in accordance with a hearing
17 conducted pursuant to this section, or at least forty-five days after a
18 written determination is made by the commissioner concerning such
19 report, whichever is later; provided, however, that the identity of the
20 person who made the report, the victim, or any other person named,
21 except a person who the commissioner has determined committed an act of
22 [physical] abuse, neglect or mistreatment or misappropriation of resi-
23 dent property, shall not be disclosed unless such person authorizes such
24 disclosure;
25 (ii) as may be required by the penal law or any lawful order or
26 warrant issued pursuant to the criminal procedure law; or
27 (iii) to a person who has requested a hearing pursuant to this
28 section, information relating to the determination upon which the hear-
29 ing is to be conducted; provided, however, that the identity of the
30 person who made the report or any other person who provided information
31 in an investigation of the report shall not be disclosed unless such
32 person authorizes such disclosure.
33 (g) Where appropriate, the commissioner shall report instances of
34 [physical] abuse, mistreatment or neglect or misappropriation of resi-
35 dent property or the failure to report as required by this section, to
36 the appropriate committee on professional conduct for the professions
37 enumerated in subdivision one of this section when a determination has
38 been made after the commissioner has provided an opportunity to be
39 heard. The commissioner shall report instances of [physical] abuse,
40 mistreatment, neglect or misappropriation of resident property by a
41 nurse aide or other unlicensed individual and any brief statement by the
42 nurse aide or other unlicensed individual disputing the finding to the
43 nursing home nurse aide registry established pursuant to section twen-
44 ty-eight hundred three-j of this article when a determination has been
45 made after the commissioner has provided an opportunity to be heard.
46 7. In addition to any other penalties prescribed by law, any person
47 who commits an act of [physical] abuse, neglect or mistreatment or
48 misappropriation of resident property, or who fails to report such an
49 act as provided in this section, shall be deemed to have violated this
50 section and shall be liable for a penalty pursuant to section twelve of
51 this chapter after an opportunity to be heard pursuant to this section.
52 8. No residential health care facility or officer or employee thereof
53 shall discharge or in any manner discriminate or retaliate against any
54 person in any residential health care facility, or any relative, or
55 sponsor thereof, or against any employee of the facility, or against any
56 other person because such person, relative, legal representative, spon-
A. 10139 5
1 sor or employee has made, or is about to make, a report pursuant to this
2 section, or has testified, or is about to testify, in any proceeding
3 relating to [physical] abuse, mistreatment or neglect or misappropri-
4 ation of the property of a person receiving care or services in a resi-
5 dential health care facility. The supreme court may grant injunctive
6 relief to any person subject to such retaliation or discrimination. Any
7 violation of this subdivision shall be punishable pursuant to section
8 twelve of this chapter.
9 9. No later than March fifteenth of every year the commissioner shall
10 prepare and transmit to the governor and the legislature a report on the
11 incidents of [physical] abuse, mistreatment and neglect or misappropri-
12 ation of the property of persons receiving care or services in residen-
13 tial health care facilities. No information concerning any individual or
14 facility shall be disclosed in a report made pursuant to this subdivi-
15 sion, or in any other report, except information which would be avail-
16 able pursuant to article six of the public officers law as provided in
17 this section. Nothing in this section shall be construed to prohibit the
18 maintenance or disclosure of, or require the expungement of, statistical
19 data which would not reveal the identity of any person or facility.
20 10. An investigation shall be made of each incident reported pursuant
21 to this section, but only the provisions of paragraphs (e) and (f) of
22 subdivision six, and subdivisions two, four, eight and nine shall apply
23 to [physical] abuse or misappropriation of resident property by persons
24 receiving care or services in residential health care facilities.
25 11. The commissioner shall adopt rules and regulations necessary to
26 implement this section.
27 § 2. The public health law is amended by adding a new section 2803-v
28 to read as follows:
29 § 2803-v. Independent quality monitors for residential health care
30 facilities. The department may require a residential health care facili-
31 ty to contract with an independent quality monitor approved by the
32 department, pursuant to a selection process conducted notwithstanding
33 sections one hundred twelve or one hundred sixty-three of the state
34 finance law, for purposes of monitoring the operator's compliance with a
35 corrective plan and reporting to the department on the implementation of
36 such corrective action, when the department has determined in its
37 discretion that operational deficiencies exist at such facility that
38 show:
39 1. a condition or conditions in substantial violation of the standards
40 for health, safety, or resident care established in law or regulation
41 that constitute a danger to resident health or safety;
42 2. a pattern or practice of habitual violation of the standards of
43 health, safety, or resident care established in law or regulation; or
44 3. any other condition dangerous to resident life, health, or safety.
45 § 3. The public health law is amended by adding a new section 2803-w
46 to read as follows:
47 § 2803-w. 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 or individual providing services to the operator.
51 2. The operator of a residential health care facility shall, on an
52 annual basis, attest to the department, in a form determined by the
53 department, to the accuracy of the information on file with the depart-
54 ment regarding the ownership of the licensed corporation, real estate,
55 and corporations providing services to the operator.
A. 10139 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 of the real property of
7 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 from the sale
11 proceeds an amount equivalent to the undepreciated value of capital
12 assets for which the provider has been reimbursed through Medicaid or
13 otherwise funded with resources provided by the state.
14 § 4. The public health law is amended by adding a new section 2803-x
15 to read as follows:
16 § 2803-x. Provision of residency agreement. The operator of a resi-
17 dential health care facility shall provide to prospective residents who
18 inquire about admission, and post on its website, a copy of the facili-
19 ty's entire approved residency agreement, including the non-governmental
20 rates charged to residents.
21 § 5. This act shall take effect immediately.
22 PART B
23 Section 1. Subdivision 2 of section 3605-a of the public health law,
24 as added by chapter 959 of the laws of 1984, is amended to read as
25 follows:
26 2. No such license shall be revoked, suspended, limited, annulled or
27 denied without a hearing. However, a license may be temporarily
28 suspended or limited without a hearing for a period not in excess of
29 thirty days upon written notice to the agency following a finding by the
30 department that the public health or safety is in imminent danger.
31 Notwithstanding the provisions of this section, no licensed home care
32 services agency shall be permitted to operate unless it has registered
33 with the department pursuant to section thirty-six hundred five-b of
34 this article.
35 § 2. The public health law is amended by adding a new section 3605-b
36 to read as follows:
37 § 3605-b. Registration of licensed home care services agencies. 1.
38 Notwithstanding any provision of law to the contrary, no licensed home
39 care services agency (LHCSA) licensed pursuant to section thirty-six
40 hundred five of this article shall be operated, provide nursing
41 services, home health aide services, or personal care services, or
42 receive reimbursement from any source for the provision of such services
43 during any period of time on or after January first, two thousand nine-
44 teen, unless it has registered with the commissioner in a manner
45 prescribed by the department. The requirements of this section shall not
46 apply to home care services agencies certified pursuant to section thir-
47 ty-six hundred eight of this article.
48 2. A LHCSA that fails to submit a complete and accurate set of all
49 required registration materials by the deadline established by the
50 commissioner in regulation shall be required to pay a fee of five
51 hundred dollars for each month or part thereof that the LHCSA is in
52 default. A LHCSA that failed to register in the prior year by the dead-
53 line of the current year shall not be permitted to register for the
54 upcoming registration period unless it submits any unpaid late fees.
A. 10139 7
1 3. The department shall post on its public website a list of all
2 LHCSAs, which shall indicate the current registration status of each
3 LHCSA.
4 4. The commissioner shall promulgate such rules and regulations as are
5 necessary to effectuate the provisions of this section including, but
6 not limited to, prescribing the manner of submission of registration
7 materials, setting an annual deadline for submission of registration
8 materials, and establishing other reasonable requirements.
9 5. The department shall institute proceedings to revoke the license of
10 any LHCSA that fails to register for two annual registration periods,
11 whether or not such periods are consecutive. The department shall have
12 the discretion to pursue revocation of the license of a LCHSA on grounds
13 that it evinces a pattern of late registration over the course of multi-
14 ple years.
15 § 3. This act shall take effect immediately.
16 PART C
17 Section 1. Paragraphs (a) and (b) of subdivision 7 of section 460-d of
18 the social services law, paragraph (a) as amended by chapter 719 of the
19 laws of 1989, paragraph (b) as amended by chapter 524 of the laws of
20 1984 and subparagraph 2 of paragraph (b) as amended by chapter 733 of
21 the laws of 1994, are amended to read as follows:
22 (a) The department shall adopt regulations establishing civil penal-
23 ties of up to one thousand dollars per day to be assessed against all
24 adult care facilities except facilities operated by a social services
25 district for violations of (i) regulations of the department pertaining
26 to the care of residents in such facilities, (ii) paragraph (a) of
27 subdivision three of section four hundred sixty-one-a of this chapter,
28 or (iii) an order issued pursuant to subdivision eight of this section;
29 provided, however, that civil penalties of up to two thousand dollars
30 per day may be assessed pursuant to subparagraph two of paragraph (b) of
31 this subdivision. The regulations shall specify the violations subject
32 to penalty and the amount of the penalty to be assessed in connection
33 with each such violation and shall specify that only civil penalties of
34 up to one thousand dollars per day per violation shall be assessed
35 pursuant to this paragraph against an adult care facility found respon-
36 sible for an act of retaliation or reprisal against any resident,
37 employee, or other person for having filed a complaint with or having
38 provided information to any long term care patient ombudsman functioning
39 in accordance with section [five hundred forty-four or five hundred
40 forty-five] two hundred eighteen of the [executive] elder law.
41 (b) (1) In addition to any other civil or criminal penalty provided by
42 law, the department shall have the power to assess civil penalties in
43 accordance with its regulations adopted pursuant to paragraph (a) of
44 this subdivision, after a hearing conducted in accordance with the
45 procedures established by regulations of the department. Such procedures
46 shall require that notice of the time and place of the hearing, together
47 with a statement of charges of violations, shall be served in person or
48 by certified mail addressed to the facility at least thirty days prior
49 to the date of the hearing. The statement of charges of violations shall
50 set forth the existence of the violations[,] and the amount of penalty
51 for which it may become liable [and the steps which must be taken to
52 rectify the violation and, where applicable, a statement that the
53 department contends that a penalty may be imposed under this paragraph
54 regardless of rectification]. An answer to the charges of violations, in
A. 10139 8
1 writing, shall be filed with the department, not less than ten days
2 prior to the date of hearing. The answer shall notify the department of
3 the facility's position with respect to each of the charges and shall
4 include all matters which if not disclosed in the answer would be likely
5 to take the department by surprise. The commissioner, or a member of his
6 staff who is designated and authorized by him to hold such hearing, may
7 in his discretion allow the facility to prove any matter not included in
8 the answer. [Where the facility satisfactorily demonstrates that it
9 either had rectified the violations within thirty days of receiving
10 written notification of the results of the inspection pursuant to
11 section four hundred sixty-one-a of this chapter, or had submitted with-
12 in thirty days an acceptable plan for rectification and was rectifying
13 the violations in accordance with the steps and within the additional
14 periods of time as accepted by the department in such plan, no penalty
15 shall be imposed, except as provided in subparagraph two of this para-
16 graph.]
17 (2) [Rectification shall not preclude the assessment of a penalty]
18 Civil penalties of up to two thousand dollars per day may be assessed
19 against any adult care facility except those operated by a social
20 services district if the department establishes at a hearing that a
21 particular violation[, although corrected,] endangered or resulted in
22 harm to any resident as the result of:
23 (i) the total or substantial failure of the facility's fire detection
24 or prevention systems, or emergency evacuation procedures prescribed by
25 department safety standard regulations;
26 (ii) the retention of any resident who has been evaluated by the resi-
27 dent's physician as being medically or mentally unsuited for care in the
28 facility or as requiring placement in a hospital or residential health
29 care facility and for whom the operator is not making persistent efforts
30 to secure appropriate placement;
31 (iii) the failure in systemic practices and procedures;
32 (iv) the failure of the operator to take actions as required by
33 department regulations in the event of a resident's illness or accident;
34 (v) the failure of the operator to provide at all times supervision of
35 residents by numbers of staff at least equivalent to the night staffing
36 requirement set forth in department regulations; or
37 (vi) unreasonable threats of retaliation or taking reprisals, includ-
38 ing but not limited to unreasonable threats of eviction or hospitaliza-
39 tion against any resident, employee or other person who makes a
40 complaint concerning the operation of an adult care facility, partic-
41 ipates in the investigation of a complaint or is the subject of an
42 action identified in a complaint.
43 The department shall specify in its regulations those regulations to
44 which this subparagraph two shall apply.
45 (3) In assessing penalties pursuant to this paragraph, the department
46 shall consider [promptness of rectification,] delay occasioned by the
47 department[,] and the specific circumstances of the violations as miti-
48 gating factors.
49 § 2. Paragraph (c) of subdivision 9 of section 460-d of the social
50 services law is amended by adding a new subparagraph (iv) to read as
51 follows:
52 (iv) If the department of health determines, based on a complaint or
53 other facts known to the department, that there is reason to believe
54 that an individual or entity is operating an adult home, enriched hous-
55 ing program, or residence for adults which does not possess a valid
56 operating certificate issued by the department, and that one or more
A. 10139 9
1 conditions or activities at such facility constitute or are likely to
2 give rise to an immediate danger to the health of the residents, and
3 awaiting a court order pursuant to subparagraph (iii) of this paragraph
4 would be seriously detrimental to the health of such residents, the
5 department of health may, notwithstanding an objection by the operator,
6 administrator or other person in charge, inspect the entire premises,
7 which shall include access to all dwellings on the said property which
8 house tenants/occupants as well as access to such tenants/occupants, for
9 the purpose of ascertaining whether such danger exists or is likely to
10 arise on an immediate basis. The department of health may request the
11 assistance of local law enforcement for purposes of carrying out such
12 inspection and may take any appropriate action if it determines that
13 such danger exists or is likely to arise, including issuing a written
14 notice directing the operator, administrator or other person in charge
15 of such facility to cease or correct the condition or activity at issue.
16 As promptly as possible thereafter, within a period not to exceed
17 fifteen days, the commissioner shall provide the operator an opportunity
18 to be heard and to present any proof that such condition or activity
19 does not constitute a danger to the health of the residents of such
20 facility. The attorney general, upon request of the department of
21 health, shall be authorized to apply to the supreme court in the county
22 in which the facility is located for an order for any appropriate addi-
23 tional relief.
24 § 3. Section 460-d of the social services law is amended by adding a
25 new subdivision 17 to read as follows:
26 17. The department of health may require the operator of an adult home
27 or an enriched housing program to contract with an independent quality
28 monitor approved by the department, pursuant to a selection process
29 conducted notwithstanding sections one hundred twelve or one hundred
30 sixty-three of the state finance law, for purposes of monitoring the
31 operator's compliance with a corrective plan and reporting to the
32 department on the implementation of such corrective action, where the
33 department has determined in its discretion that operational deficien-
34 cies exist at such facility that show: (a) a condition or conditions in
35 substantial violation of the standards for health, safety, or resident
36 care established in law or regulation that constitute a danger to resi-
37 dent health or safety; (b) a pattern or practice of habitual violation
38 of the standards of health, safety, or resident care established in law
39 or regulation; or (c) any other condition dangerous to resident life,
40 health, or safety.
41 § 4. Subdivision 2 of section 461-a of the social services law, as
42 amended by chapter 601 of the laws of 1981, paragraphs (a) and (c) as
43 amended and paragraph (d) as added by chapter 735 of the laws of 1994,
44 and paragraph (e) as added by chapter 601 of the laws of 1981 and as
45 relettered by chapter 735 of the laws of 1994, is amended and a new
46 subdivision 5 is added to read as follows:
47 2. (a) With respect to adult care facilities the department shall
48 conduct a minimum of one unannounced inspection of each such facility to
49 determine the adequacy of care being rendered, pursuant to the follow-
50 ing:
51 (1) Such facilities receiving the department's highest rating shall be
52 inspected at least once every eighteen months on an unannounced basis.
53 (2) All other such facilities shall be inspected on an unannounced
54 basis no less than annually. The commissioner may provide for more
55 frequent inspections of any such facilities. Such inspection shall not
56 be required with respect to any facility for which the commissioner has
A. 10139 10
1 delegated responsibility for inspection and supervision to a social
2 services official pursuant to section four hundred sixty-c of this chap-
3 ter. Any employee of the department or a social services district who
4 gives or causes to be given advance notice of such unannounced
5 inspections to any unauthorized persons shall, in addition to any other
6 penalty provided by law, be suspended by the department or the social
7 services district from all duties without pay for at least five days or
8 for such greater period of time as the department or social services
9 district shall determine. Any such suspension shall be made by the
10 department or social services district in accordance with all other
11 applicable provisions of law.
12 (b) The department or a social services district, where appropriate,
13 shall each year conduct a minimum of one full inspection of each adult
14 care facility. Such inspection shall include, but shall not be limited
15 to, examination of the medical, dietary and social services records of
16 the facility as well as the minimum standards of construction, life
17 safety standards, quality and adequacy of care, rights of residents,
18 payments and all other areas of operation. The purpose of any inspection
19 shall be to determine compliance with requirements of applicable
20 provisions of law and regulations of the department.
21 (c) An inspection report shall be made of each inspection which shall
22 clearly identify and indicate in detail each area of operation, includ-
23 ing, but not limited to, the premises, equipment, personnel, resident
24 care and services, and whether each such area of operation or any of its
25 component parts is or is not in compliance with the regulations of the
26 department and all other applicable requirements. It also shall identify
27 those areas of operation or any of its component parts found not in
28 compliance as a result of failure in systemic practices and procedures.
29 The operator shall be notified of the results of the inspection in a
30 manner to be determined by regulations of the department. [Such notifi-
31 cation shall contain directions as may be appropriate as to the manner
32 and time in which compliance with applicable requirements of law or
33 regulations of the department shall be effected.] The department shall
34 also require the operator of an adult home or residence for adults to
35 develop, biannually update and implement plans for quality assurance
36 activities for each area of operation. Quality assurance activities
37 include but are not limited to, development and maintenance of perform-
38 ance standards, measurement of adherence to such standards and to appli-
39 cable state and local laws and regulations, identification of perform-
40 ance failures, design, and implementation of corrective action.
41 (d) Systemic practices or procedures are those activities related to
42 each area of operation which indicate a pattern or an inability to bring
43 the operation of the facility into compliance with applicable provisions
44 of laws and regulations.
45 (e) Nothing contained in this subdivision shall limit or restrict the
46 ability of the department or social services district, where appropri-
47 ate, to conduct more than one inspection of an adult care facility, for
48 whatever purpose, as is deemed necessary for ensuring compliance with
49 applicable provisions of law and regulations of the department.
50 5. With respect to adult homes and enriched housing programs licensed
51 by the department of health, facilities other than those referenced in
52 subdivision one of this section and which have received the department
53 of health's highest rating may elect to obtain and maintain accredi-
54 tation in lieu of the unannounced inspection referenced in subdivision
55 two of this section. Such accreditation shall be by one or more nation-
56 ally-recognized accrediting agencies as determined by the commissioner.
A. 10139 11
1 The department of health shall require that such agencies report data
2 and information pertaining to adult homes and enriched housing programs
3 which are accredited by such agencies, which seek and do not receive
4 such accreditation, and which attain but lose such accreditation, in a
5 manner and form determined by the department. Adult homes and enriched
6 housing programs which attain but lose accreditation shall report such
7 loss to the department promptly in a manner and form determined by the
8 department of health. Notwithstanding the provisions of subdivision two
9 of this section, facilities receiving the department of health's highest
10 rating that do not elect to attain and maintain accreditation shall be
11 inspected at least once every twenty-four months.
12 § 5. Section 461-c of the social services law is amended by adding a
13 new subdivision 10 to read as follows:
14 10. The operator of an adult home or an enriched housing program shall
15 provide to prospective residents who inquire about admission, and shall
16 post on its website, a copy of the facility's approved
17 admission/residency agreement, including the rates charged to residents.
18 § 6. Section 461-e of the social services law is amended by adding a
19 new subdivision 3-a to read as follows:
20 3-a. Every adult home and enriched housing program shall:
21 (a) Post in a prominent position in the facility so as to be accessi-
22 ble to all residents and to the general public, a summary of any report
23 of inspection based on a complaint issued by the department of health to
24 the facility within the previous year.
25 (b) Provide to any resident and each applicant for admission an oppor-
26 tunity to review any report of inspection based on a complaint issued by
27 the department of health to the facility within the previous year.
28 § 7. This act shall take effect immediately; provided that any penal-
29 ties assessed solely as a result of the amendments to section 460-d of
30 the social services law made by section one of this act shall apply only
31 to violations that occur on and after such date.
32 PART D
33 Section 1. Subdivision 1 of section 12 of the public health law, as
34 amended by section 16 of part A of chapter 58 of the laws of 2008, is
35 amended to read as follows:
36 1. (a) Except as provided in paragraphs (b) and (c) of this subdivi-
37 sion, any person who violates, disobeys or disregards any term or
38 provision of this chapter or of any lawful notice, order or regulation
39 pursuant thereto for which a civil penalty is not otherwise expressly
40 prescribed by law, shall be liable to the people of the state for a
41 civil penalty of not to exceed [two] five thousand dollars for every
42 such violation.
43 (b) The penalty provided for in paragraph (a) of this subdivision may
44 be increased to an amount not to exceed [five] ten thousand dollars for
45 a subsequent violation if the person committed the same violation, with
46 respect to the same or any other person or persons, within twelve months
47 of the initial violation for which a penalty was assessed pursuant to
48 paragraph (a) of this subdivision and said violations were a serious
49 threat to the health and safety of an individual or individuals.
50 (c) The penalty provided for in paragraph (a) of this subdivision may
51 be increased to an amount not to exceed [ten] twenty thousand dollars if
52 the violation directly results in serious physical harm to any patient
53 or patients.
A. 10139 12
1 (d) Effective on and after April first, two thousand eight the comp-
2 troller is hereby authorized and directed to deposit amounts collected
3 in excess of two thousand dollars but less than ten thousand dollars per
4 violation to the patient safety center account to be used for purposes
5 of the patient safety center created by title two of article twenty-
6 nine-D of this chapter.
7 (e) Effective on and after April first, two thousand eighteen, amounts
8 collected from providers licensed under article twenty-eight, thirty-
9 six, or forty of this chapter in excess of ten thousand dollars per
10 violation may be used by the commissioner, notwithstanding sections one
11 hundred twelve or one hundred sixty-three of the state finance law, for
12 initiatives that, in the discretion of the commissioner, are likely to
13 improve the quality of care or quality of life of patients or residents
14 served by such providers; provided that amounts collected from providers
15 pursuant to this paragraph may be used for improvement activities to
16 benefit service delivery within the same licensure category. Such
17 purposes may include, but are not limited to, activities designed to
18 improve the quality, performance and compliance of poorly performing
19 providers; training and educating provider staff; sharing best prac-
20 tices; and improving patient, resident and consumer involvement in
21 ensuring and improving quality of care or quality of life at facilities.
22 § 2. This act shall take effect immediately; provided that:
23 (a) any penalties available solely as a result of the amendments to
24 subdivision 1 of section 12 of the public health law, made by section
25 one of this act shall apply only to violations that occur on and after
26 such date; and
27 (b) the amendments to subdivision 1 of section 12 of the public health
28 law made by section one of this act shall not affect the expiration of
29 such subdivision and shall be deemed to expire therewith.
30 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
31 sion, section or part of this act shall be adjudged by any court of
32 competent jurisdiction to be invalid, such judgment shall not affect,
33 impair, or invalidate the remainder thereof, but shall be confined in
34 its operation to the clause, sentence, paragraph, subdivision, section
35 or part thereof directly involved in the controversy in which such judg-
36 ment shall have been rendered. It is hereby declared to be the intent of
37 the legislature that this act would have been enacted even if such
38 invalid provisions had not been included herein.
39 § 3. This act shall take effect immediately, provided, however, that
40 the applicable effective date of Parts A through D of this act shall be
41 as specifically set forth in the last section of such Parts.