Amd §2803-d, add §§2803-w, 2803-x & 2803-y, Pub Health L
Relates to reporting abuses of persons receiving care or services in residential care facilities; includes misappropriation of property; establishes independent quality monitors and requirements relating to assets of operators.
STATE OF NEW YORK
________________________________________________________________________
5908
2019-2020 Regular Sessions
IN SENATE
May 16, 2019
___________
Introduced by Sen. RIVERA -- read twice and ordered printed, and when
printed to be committed 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
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 2803-d of the public health law, as amended by
2 chapter 340 of the laws of 1980, subdivision 1 as amended by chapter 230
3 of the laws of 2004, paragraph (c) of subdivision 6 as amended by chap-
4 ter 414 of the laws of 1986, paragraph (d) of subdivision 6 as amended
5 by chapter 622 of the laws of 1980 and paragraph (g) of subdivision 6 as
6 amended by chapter 717 of the laws of 1989, is amended to read as
7 follows:
8 § 2803-d. Reporting abuses of persons receiving care or services in
9 residential health care facilities. 1. The following persons are
10 required to report in accordance with this section when they have
11 reasonable cause to believe that a person receiving care or services in
12 a residential health care facility has been [physically] abused,
13 mistreated [or], neglected or subjected to the misappropriation of prop-
14 erty by other than a person receiving care or services in the facility:
15 any operator or employee of such facility, [any person who,] or employee
16 of any corporation, partnership, organization or other entity which, and
17 any other person who, is under contract [to provide patient care
18 services in] with such facility, and any nursing home administrator,
19 physician, medical examiner, coroner, physician's associate, special-
20 ist's assistant, osteopath, chiropractor, physical therapist, occupa-
21 tional therapist, registered professional nurse, licensed practical
22 nurse, dentist, podiatrist, optometrist, pharmacist, psychologist,
23 licensed master social worker, licensed clinical social worker, speech
24 pathologist and audiologist.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07386-04-9
S. 5908 2
1 2. In addition to those persons required to report suspected [phys-
2 ical] abuse, mistreatment [or], neglect or misappropriation of the prop-
3 erty of persons receiving care or services in residential health care
4 facilities, any other person may make such a report if he or she has
5 reasonable cause to believe that a person receiving care or services has
6 been [physically] abused, mistreated [or], neglected or subjected to the
7 misappropriation of property in the facility.
8 3. Reports of suspected [physical] abuse, mistreatment [or], neglect
9 or the misappropriation of property made pursuant to this section shall
10 be made immediately by telephone and in writing within forty-eight hours
11 to the department. The department shall provide forms, which shall be
12 available to be downloaded from the department's website, which may be,
13 but are not required to be, used for making the written reports. Written
14 reports shall [be made on forms supplied by the commissioner and shall]
15 include the following information: the identity of the person making the
16 report and where he can be found; the name and address of the residen-
17 tial health care facility; the names of the operator and administrator
18 of the facility, if known; the name of the subject of the alleged [phys-
19 ical] abuse, mistreatment [or], neglect or misappropriation of property,
20 if known; the nature and extent of the [physical] abuse, mistreatment
21 [or], neglect or misappropriation of property; the date, time and
22 specific location of the occurrence; the names of next of kin or spon-
23 sors of the subject of the alleged [physical] abuse, mistreatment [or],
24 neglect or misappropriation of property, if known; and any other infor-
25 mation which the person making the report believes would be helpful to
26 further the purposes of this section. Such written reports shall be
27 admissible in evidence, consistent with the provisions of paragraph (f)
28 of subdivision six of this section, in any actions or proceedings relat-
29 ing to [physical] abuse, mistreatment [or], neglect or misappropriation
30 of property of persons receiving care or services in residential health
31 care facilities. Written reports made other than on forms supplied by
32 the commissioner which contain the information required herein shall be
33 treated as if made on such forms.
34 4. Any person who in good faith makes a report pursuant to this
35 section shall have immunity from any liability, civil or criminal, for
36 having made such a report. For the purpose of any proceeding, civil or
37 criminal, the good faith of any person required to report instances of
38 [physical] abuse, mistreatment [or], neglect or misappropriation of
39 property of persons receiving care or services in residential health
40 care facilities shall be presumed.
41 5. Notwithstanding the provisions of section two hundred thirty of
42 this chapter, any licensed person who commits an act of [physical]
43 abuse, mistreatment [or], neglect or misappropriation of property of a
44 person receiving care or services in a residential health care facility
45 and any licensed person required by this section to report an instance
46 of suspected [physical] abuse, mistreatment [or], neglect or misappro-
47 priation of property of a person receiving care or services in a resi-
48 dential health care facility who fails to do so shall be guilty of
49 unprofessional conduct in the practice of his or her profession.
50 6. (a) Upon receipt of a report made pursuant to this section, the
51 commissioner shall cause an investigation to be made of the allegations
52 contained in the report. Notification of the receipt of a report shall
53 be made immediately by the department to the appropriate district attor-
54 ney if a prior request in writing has been made to the department by the
55 district attorney. At any time, if the department determines that there
56 is a reasonable belief that a reported allegation may constitute a crime
S. 5908 3
1 under the laws of the state of New York or the United States, the
2 department shall notify the appropriate law enforcement official or
3 authority. Prior to the completion of the investigation by the depart-
4 ment, [every] reasonable effort shall be made to notify, personally or
5 by certified mail, any person under investigation for having committed
6 an act of [physical] abuse, mistreatment [or], neglect or misappropri-
7 ation of property. The commissioner shall make a written determination,
8 based on the findings of the investigation, of whether or not sufficient
9 credible evidence exists to sustain the allegations contained in the
10 report or would support a conclusion that a person not named in such
11 report has committed an act of [physical] abuse, neglect [or], mistreat-
12 ment or misappropriation of property. A copy of such written determi-
13 nation, together with a notice of the right to a hearing as provided in
14 this subdivision, shall be sent by registered or certified mail to each
15 person who the commissioner has determined has committed an act of
16 [physical] abuse, neglect [or], mistreatment or misappropriation of
17 property. A letter shall be sent to any other person alleged in such
18 report to have committed such an act stating that a determination has
19 been made that there is not sufficient evidence to sustain the allega-
20 tions relating to such person. A copy of each such determination and
21 letter shall be sent to the facility in which the alleged incident
22 occurred.
23 (b) The commissioner may make a written determination, based on the
24 findings of the investigation, that sufficient credible evidence exists
25 to support a conclusion that a person required by this section to report
26 suspected [physical] abuse, mistreatment [or], neglect or misappropri-
27 ation of property had reasonable cause to believe that such an incident
28 occurred and failed to report such incident. A copy of such written
29 determination, together with a notice of the right to a hearing as
30 provided in this subdivision, shall be sent by registered or certified
31 mail to each person who the commissioner has determined has failed to
32 report as required by this section.
33 (c) All information relating to any allegation which the commissioner
34 has determined would not be sustained shall be [expunged] sealed one
35 hundred twenty days following notification of such determination to the
36 person who made the report pursuant to this section, unless a proceeding
37 pertaining to such allegation is pending pursuant to article seventy-
38 eight of the civil practice law and rules. Whenever information is
39 [expunged] sealed, the commissioner shall notify any official notified
40 pursuant to paragraph (a) of this subdivision that the information has
41 been [expunged] sealed.
42 (d) At any time within thirty days of the receipt of a copy of a
43 determination made pursuant to this section, a person named in such
44 determination as having committed an act of [physical] abuse, neglect
45 [or], mistreatment or misappropriation of property, or as having failed
46 to report such an incident, may request in writing that the commissioner
47 amend or [expunge] seal the record of such report, to the extent such
48 report applies to such person, or such written determination. If the
49 commissioner does not comply with such request within thirty days, such
50 person shall have the right to a fair hearing to determine whether the
51 record of the report or the written determination should be amended or
52 [expunged] sealed on the grounds that the record is inaccurate or the
53 determination is not supported by the evidence. The burden of proof in
54 such hearing shall be on the department. Whenever information is
55 [expunged] sealed, the commissioner shall notify any official notified
S. 5908 4
1 pursuant to paragraph (a) of this subdivision that the information has
2 been [expunged] sealed.
3 (e) Except as hereinafter provided, any report, record of the investi-
4 gation of such report and all other information related to such report
5 shall be confidential and shall be exempt from disclosure under article
6 six of the public officers law.
7 (f) Information relating to a report made pursuant to this section
8 shall be disclosed under any of the following conditions:
9 (i) pursuant to article six of the public officers law after [expunge-
10 ment] sealing or amendment, if any, is made in accordance with a hearing
11 conducted pursuant to this section, or at least forty-five days after a
12 written determination is made by the commissioner concerning such
13 report, whichever is later; provided, however, that the identity of the
14 person who made the report, the victim, or any other person named,
15 except a person who the commissioner has determined committed an act of
16 [physical] abuse, neglect [or], mistreatment or misappropriation of
17 property, shall not be disclosed unless such person authorizes such
18 disclosure;
19 (ii) as may be required by the penal law or any lawful order or
20 warrant issued pursuant to the criminal procedure law; or
21 (iii) to a person who has requested a hearing pursuant to this
22 section, information relating to the determination upon which the hear-
23 ing is to be conducted; provided, however, that the identity of the
24 person who made the report or any other person who provided information
25 in an investigation of the report shall not be disclosed unless such
26 person authorizes such disclosure.
27 (g) Where appropriate, the commissioner shall report instances of
28 [physical] abuse, mistreatment [or], neglect or misappropriation of
29 property or the failure to report as required by this section, to the
30 appropriate committee on professional conduct for the professions
31 enumerated in subdivision one of this section when a determination has
32 been made after the commissioner has provided an opportunity to be
33 heard. The commissioner shall report instances of [physical] abuse,
34 mistreatment, neglect [or], misappropriation of [resident] property by a
35 nurse aide or other unlicensed individual and any brief statement by the
36 nurse aide or other unlicensed individual disputing the finding to the
37 nursing home nurse aide registry established pursuant to section twen-
38 ty-eight hundred three-j of this article when a determination has been
39 made after the commissioner has provided an opportunity to be heard.
40 7. In addition to any other penalties prescribed by law, any person
41 who commits an act of [physical] abuse, neglect [or], mistreatment or
42 misappropriation of property, or who fails to report such an act as
43 provided in this section, shall be deemed to have violated this section
44 and shall be liable for a penalty pursuant to section twelve of this
45 chapter after an opportunity to be heard pursuant to this section.
46 8. No residential health care facility or officer or employee thereof
47 shall discharge or in any manner discriminate or retaliate against any
48 person in any residential health care facility, or any relative, or
49 sponsor thereof, or against any employee of the facility, or against any
50 other person because such person, relative, legal representative, spon-
51 sor or employee has made, or is about to make, a report pursuant to this
52 section, or has testified, or is about to testify, in any proceeding
53 relating to [physical] abuse, mistreatment [or], neglect or misappropri-
54 ation of property of a person receiving care or services in a residen-
55 tial health care facility. The supreme court may grant injunctive
56 relief to any person subject to such retaliation or discrimination. Any
S. 5908 5
1 violation of this subdivision shall be punishable pursuant to section
2 twelve of this chapter.
3 9. No later than March fifteenth of every year the commissioner shall
4 prepare and transmit to the governor and the legislature a report on the
5 incidents of [physical] abuse, mistreatment [and], neglect and misappro-
6 priation of property of persons receiving care or services in residen-
7 tial health care facilities. No individual identifying information
8 concerning any individual [or facility] subjected to abuse, mistreat-
9 ment, neglect or misappropriation of property shall be disclosed in a
10 report made pursuant to this subdivision, or in any other report, except
11 information which would be available pursuant to article six of the
12 public officers law as provided in this section. Nothing in this section
13 shall be construed to prohibit the maintenance or disclosure of, or
14 require the [expungement] sealing of, statistical data which would not
15 reveal the identity of any person [or facility].
16 10. An investigation shall be made of each incident reported pursuant
17 to this section[, but only the provisions of paragraphs (e) and (f) of
18 subdivision six, and subdivisions two, four, eight and nine shall apply
19 to physical abuse by persons receiving care or services in residential
20 health care facilities].
21 11. The commissioner shall adopt [rules and] regulations necessary to
22 implement this section.
23 § 2. The public health law is amended by adding a new section 2803-w
24 to read as follows:
25 § 2803-w. Independent quality monitors for residential health care
26 facilities. The department may require a residential health care facili-
27 ty to contract with an independent quality monitor selected, and on
28 reasonable terms determined, by the department, pursuant to a selection
29 process conducted notwithstanding sections one hundred twelve or one
30 hundred sixty-three of the state finance law, for purposes of monitoring
31 the operator's compliance with a written and mandatory corrective plan
32 and reporting to the department on the implementation of such corrective
33 action, when the department has determined in its discretion that opera-
34 tional deficiencies exist at such facility that show:
35 1. a condition or conditions in substantial violation of the standards
36 for health, safety, or resident care established in law or regulation
37 that constitute a danger to resident health or safety;
38 2. a pattern or practice of habitual violation of the standards of
39 health, safety, or resident care established in law or regulation; or
40 3. any other condition dangerous to resident life, health, or safety.
41 Such written mandatory corrective plans shall include caps on adminis-
42 trative and general costs that are unrelated to providing direct care
43 (including providing at least minimum staffing levels as determined by
44 the department) or care coordination.
45 § 3. The public health law is amended by adding a new section 2803-x
46 to read as follows:
47 § 2803-x. Requirements related to residential health care facilities
48 and related assets. 1. The operator of a residential health care facili-
49 ty shall notify the commissioner of any common or familial ownership of
50 any corporation, other entity or individual providing services to the
51 operator or the facility.
52 2. The operator of a residential health care facility shall, on an
53 annual basis, attest to the department, in a form determined by the
54 department, to the accuracy of the information provided to the depart-
55 ment under this section.
S. 5908 6
1 3. The operator of a residential health care facility may not enter
2 into any arrangement to guarantee the debt or other obligation of a
3 party which has not received establishment approval.
4 4. The operator of a residential health care facility shall notify the
5 department at least ninety days prior to executing a letter of intent or
6 other contractual agreement related to the sale, mortgaging, encum-
7 brance, or other disposition of the real property of the facility.
8 5. In any instance where a residential health care facility is sold or
9 otherwise transferred and used for a purpose which is not a health care
10 purpose, the operator shall remit to the department an amount equivalent
11 to the undepreciated value of capital assets for which the provider has
12 been funded or reimbursed through Medicaid rate adjustments or otherwise
13 funded or reimbursed with resources provided by the state for the
14 purpose of improvement or transformation.
15 § 4. The public health law is amended by adding a new section 2803-y
16 to read as follows:
17 § 2803-y. Provision of residency agreement. The operator of a resi-
18 dential health care facility shall provide to prospective residents who
19 inquire about admission, and post on its website, a copy of the facili-
20 ty's entire approved residency agreement, including the non-governmental
21 rates charged to residents.
22 § 5. Severability clause. If any provision of this act, or any appli-
23 cation of any provision of this act, is held to be invalid, or to
24 violate or be inconsistent with any federal law or regulation, that
25 shall not affect the validity or effectiveness of any other provision of
26 this act, which can be given effect without that provision or applica-
27 tion; and to that end, the provisions and applications of this act are
28 severable.
29 § 6. This act shall take effect on the one hundred twentieth day after
30 it shall have become a law. Effective immediately, the commissioner of
31 health shall make regulations and take other actions necessary to imple-
32 ment this act on that date.
