A10139 Summary:

BILL NOA10139
 
SAME ASNo Same As
 
SPONSORGottfried
 
COSPNSR
 
MLTSPNSR
 
Amd 2803-d, 3605-a & 12, add 2803-v, 2803-w, 2803-x & 3605-b, Pub Health L; amd 460-d, 461-a, 461-c & 461-e, Soc Serv L
 
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).
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A10139 Actions:

BILL NOA10139
 
03/19/2018referred to health
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A10139 Committee Votes:

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A10139 Floor Votes:

There are no votes for this bill in this legislative session.
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A10139 Memo:

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.
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A10139 Text:



 
                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.
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