Bill Text: NY A00196 | 2021-2022 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relates to violations of safety conditions in adult care facilities; provides penalties for safety violations and operating without a valid license; prohibits reductions in fines in certain circumstances where a patient is endangered or harmed.

Spectrum: Partisan Bill (Democrat 46-0)

Status: (Introduced - Dead) 2022-05-18 - amended on third reading 196c [A00196 Detail]

Download: New_York-2021-A00196-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         196--A
                                                                  Cal. No. 8

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                       (Prefiled)

                                     January 6, 2021
                                       ___________

        Introduced  by  M. of A. GOTTFRIED, BRONSON, STECK, GALEF, L. ROSENTHAL,
          ABINANTI, BENEDETTO,  DINOWITZ,  HYNDMAN,  LUPARDO,  SAYEGH,  DARLING,
          SEAWRIGHT,  ENGLEBRIGHT,  COLTON,  STIRPE, GRIFFIN, JACOBSON, EPSTEIN,
          WALKER, PERRY, SIMON, JACKSON, FORREST, CRUZ, CARROLL, FRONTUS,  HUNT-
          ER,  MEEKS,  FERNANDEZ,  WALLACE, McMAHON, LUNSFORD, CLARK, J. RIVERA,
          KELLES, QUART, MITAYNES, ZINERMAN -- Multi-Sponsored by --  M.  of  A.
          COOK,  THIELE  -- read once and referred to the Committee on Health --
          ordered to a third reading, amended and ordered  reprinted,  retaining
          its place on the order of third reading

        AN  ACT  to amend the social services law and the mental hygiene law, in
          relation to violations of safety conditions in adult care facilities

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.    Paragraph  (b) of subdivision 4 of section 460-d of the
     2  social services law, as amended by chapter 733 of the laws of  1994,  is
     3  amended to read as follows:
     4    (b)  No  operating  certificate shall be revoked, suspended or limited
     5  without a hearing held in  accordance  with  procedures  established  by
     6  department  regulations,  which  procedures shall require that notice of
     7  the time and place of the hearing, and notice of the charges,  shall  be
     8  served in person or by certified mail addressed to the facility at least
     9  thirty  days  prior  to the date of the hearing. A written answer to the
    10  charges may be filed with the department not less than ten business days
    11  prior to the date of the hearing. An operating certificate  may,  never-
    12  theless,  be  suspended or limited without a hearing for a period not in
    13  excess of sixty days, upon written notice to the  facility  following  a
    14  finding  by  the  department  that the public health, or an individual's
    15  health, safety or welfare, are in imminent  danger;  provided,  however,
    16  that  if  the  department  demonstrates reasonable efforts to commence a
    17  hearing within such sixty day period and to complete such hearing within

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00265-02-2
        A. 196--A                           2

     1  a reasonable period of time,  the  hearing  officer  may  authorize  the
     2  department  to  extend  the  period  of  suspension or limitation for an
     3  appropriate period of time, but in no event beyond an additional  thirty
     4  days.
     5    §  2.  Subdivision  7  of section 460-d of the social services law, as
     6  added by chapter 669 of the laws of 1977, paragraph (a)  as  amended  by
     7  chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524
     8  of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap-
     9  ter 733 of the laws of 1994, is amended to read as follows:
    10    7.  (a)  The  department  shall  adopt  regulations establishing civil
    11  penalties of up to [one] two thousand dollars  per  day  per  violation,
    12  and,  for  repeat violations, under subparagraph two of paragraph (c) of
    13  this subdivision for which a prior penalty was  assessed,  up  to  three
    14  thousand  dollars per day per violation to be assessed against all adult
    15  care facilities except facilities operated by a social services district
    16  for violations of (i) regulations of the department  pertaining  to  the
    17  care  of residents in such facilities, (ii) paragraph (a) of subdivision
    18  three of section four hundred sixty-one-a of this [chapter] article,  or
    19  (iii) an order issued pursuant to subdivision eight of this section. The
    20  regulations  shall  specify  the  violations  subject to penalty and the
    21  amount of the penalty to  be  assessed  in  connection  with  each  such
    22  violation and shall specify that only civil penalties of up to [one] two
    23  thousand  dollars  per  day  per violation shall be assessed pursuant to
    24  this paragraph against an adult care facility found responsible  for  an
    25  act  of retaliation or reprisal against any resident, employee, or other
    26  person for having filed a complaint with or having provided  information
    27  to any long term care [patient] ombudsman functioning in accordance with
    28  section [five hundred forty-four or five hundred forty-five] two hundred
    29  eighteen of the [executive] elder law.
    30    (b)  [(1)] In addition to any other civil or criminal penalty provided
    31  by law, the department shall have the power to assess civil penalties in
    32  accordance with its regulations adopted pursuant  to  paragraph  (a)  of
    33  this  subdivision,  after  a  hearing  conducted  in accordance with the
    34  procedures established by regulations of the department. Such procedures
    35  shall require that notice of the time and place of the hearing, together
    36  with a statement of charges of violations, shall be served in person  or
    37  by  certified  mail addressed to the facility at least thirty days prior
    38  to the date of the hearing. The statement of charges of violations shall
    39  set forth the existence of the violations, the  amount  of  penalty  for
    40  which  it may become liable and the steps which must be taken to rectify
    41  the violation and, where applicable, a  statement  that  the  department
    42  contends  that  a penalty may be imposed under this paragraph regardless
    43  of rectification. An answer to the charges of  violations,  in  writing,
    44  shall  be filed with the department, not less than ten days prior to the
    45  date of hearing. The answer shall notify the department of  the  facili-
    46  ty's  position with respect to each of the charges and shall include all
    47  matters which if not disclosed in the answer would be likely to take the
    48  department by surprise. The commissioner, or a member of his  staff  who
    49  is  designated  and  authorized  by him to hold such hearing, may in his
    50  discretion allow the facility to prove any matter not  included  in  the
    51  answer.
    52    (c)  (1) Where the facility satisfactorily demonstrates that it either
    53  had rectified the violations within thirty  days  of  receiving  written
    54  notification  of  the results of the inspection pursuant to section four
    55  hundred sixty-one-a of this [chapter] article, or had  submitted  within
    56  thirty  days an acceptable plan for rectification and was rectifying the
        A. 196--A                           3

     1  violations in accordance with the steps and within the additional  peri-
     2  ods of time as accepted by the department in such plan, no penalty shall
     3  be imposed, except as provided in subparagraph two of this paragraph.
     4    (2)  Rectification  shall  not preclude the assessment of a penalty if
     5  the department establishes at a hearing  that  a  particular  violation,
     6  although  corrected[,  endangered or resulted in harm to any resident as
     7  the result of]:
     8    (i) endangered any resident. Endangerment is defined as:
     9    (A) the total or substantial failure of the facility's fire  detection
    10  or  prevention systems, or emergency evacuation procedures prescribed by
    11  department safety standard regulations;
    12    [(ii)] (B) the retention of any resident who has been evaluated by the
    13  resident's physician as being medically or mentally unsuited for care in
    14  the facility or as requiring placement  in  a  hospital  or  residential
    15  health  care facility and for whom the operator is not making persistent
    16  efforts to secure appropriate placement;
    17    [(iii)] (C) the failure in systemic  practices  and  procedures  which
    18  shall  be  defined as widespread or chronic, and material, noncompliance
    19  with statutory or regulatory requirements, including but not limited  to
    20  the  rights  of residents under section four hundred sixty-one-d of this
    21  article;
    22    [(iv)] (D) the failure of the operator to take actions as required  by
    23  department regulations in the event of a resident's illness or accident;
    24    [(v)]  (E)  the failure of the operator to provide at all times super-
    25  vision of residents by numbers of staff at least equivalent to the night
    26  staffing requirement set forth in department regulations; or
    27    [(vi)] (F) [unreasonable] threats of retaliation or taking  reprisals,
    28  including  but  not  limited  to  [unreasonable]  threats of eviction or
    29  hospitalization, against any resident,  employee  or  other  person  who
    30  makes  a  complaint  concerning the operation of an adult care facility,
    31  participates in the investigation of a complaint or is the subject of an
    32  action identified in a complaint[.
    33    The department shall specify in its regulations those  regulations  to
    34  which this subparagraph two shall apply.
    35    (3)  In assessing penalties pursuant to this paragraph, the department
    36  shall consider promptness of  rectification,  delay  occasioned  by  the
    37  department, and the specific circumstances of the violations as mitigat-
    38  ing factors.
    39    (c)];
    40    (ii) resulted in harm to any resident, including but not limited to:
    41    (A) physical harm;
    42    (B)  loss  or  denial  of  access to money or other personal property,
    43  including but not limited to a violation of section one hundred  thirty-
    44  one-o of this chapter; or
    45    (C) being subjected to (I) conduct by an operator, administrator, case
    46  manager,  or  other employee in a supervisory position that violates the
    47  rights of a resident under section  four  hundred  sixty-one-d  of  this
    48  article,  or  (II)  an  egregious failure by an operator, administrator,
    49  case manager, or other employee in a supervisory position to ensure  the
    50  rights  of  a  resident  under  section four hundred sixty-one-d of this
    51  article; or
    52    (iii) is an identical repeat violation. Repeat violation is defined as
    53  a violation of the same provision of regulation for which  the  facility
    54  received  notice  of  a citation issued by the department at any time in
    55  the previous twelve months.
        A. 196--A                           4

     1    (d) In assessing penalties pursuant to this paragraph, the  department
     2  shall  consider  promptness  of  rectification,  delay occasioned by the
     3  department, and the specific circumstances of the violations as mitigat-
     4  ing factors.
     5    (e)  Upon  the  request  of  the  department, the attorney general may
     6  commence an action in any court of competent  jurisdiction  against  any
     7  facility  subject  to  the  provisions  of this section, and against any
     8  person or corporation operating such facility, for the recovery  of  any
     9  penalty  assessed by the department in accordance with the provisions of
    10  this subdivision.
    11    [(d)] (f) Any such penalty assessed by the department may be  released
    12  or  compromised  by the department, subject to and consistent with para-
    13  graph (c) of this subdivision, before the matter has  been  referred  to
    14  the  attorney  general,  and  where such matter has been referred to the
    15  attorney general, any such penalty may be released  or  compromised  and
    16  any action commenced to recover the same may be settled and discontinued
    17  by  the attorney general, after considering paragraph (c) of this subdi-
    18  vision and with the consent of the department.
    19    § 3. Paragraphs (a) and (b) of subdivision 9 of section 460-d  of  the
    20  social services law, paragraph (a) as amended by chapter 558 of the laws
    21  of  1999  and paragraph (b) as added by chapter 848 of the laws of 1992,
    22  are amended to read as follows:
    23    (a) The department shall have authority to impose a civil penalty [not
    24  exceeding one thousand dollars per day] consistent with  section  twelve
    25  of  the  public  health law against, and to issue an order requiring the
    26  closing of, after notice and opportunity to be heard, any facility which
    27  does not possess a valid operating certificate issued by the  department
    28  and  is an adult care facility subject to the provisions of this article
    29  and the regulations of the department. A hearing shall be  conducted  in
    30  accordance  with  procedures established by department regulations which
    31  procedures shall require that  notice  of  the  determination  that  the
    32  facility  is  an  adult  care facility and the reasons for such determi-
    33  nation and notice of the time and place of  the  hearing  be  served  in
    34  person  on  the operator, owner or prime lessor, if any, or by certified
    35  mail, return receipt requested, addressed to such person and received at
    36  least twenty days prior to the date of the hearing.  If  such  operator,
    37  owner  or  prime  lessor,  if  any, is not known to the department, then
    38  service may be made by posting a copy thereof  in  a  conspicuous  place
    39  within  the  facility  or  by  sending a copy thereof by certified mail,
    40  return receipt requested, addressed to the facility. A written answer to
    41  the notice of violation may be filed with the department not  less  than
    42  five days prior to the date of the hearing.  Demonstration by the facil-
    43  ity  that  it possessed an operating certificate issued pursuant to this
    44  article, article twenty-eight  of  the  public  health  law  or  article
    45  sixteen,  [twenty-three,] thirty-one or thirty-two of the mental hygiene
    46  law at the time the hearing was commenced shall  constitute  a  complete
    47  defense to any charges made pursuant to this subdivision.
    48    (b)  [The penalty authorized by this section shall begin to run thirty
    49  days after the department provides the  operator,  in  writing,  with  a
    50  summary of the inspection of the facility by which the department deter-
    51  mined  that  he or she is operating an uncertified adult care facility.]
    52  The submission of an  application  by  the  operator  for  an  operating
    53  certificate for the facility shall not act as a bar to the imposition of
    54  a penalty against the operator of an unlicensed adult care facility.
        A. 196--A                           5

     1    §  4.  Paragraph  (c)  of subdivision 9 of section 460-d of the social
     2  services law is amended by adding a new subparagraph  (iv)  to  read  as
     3  follows:
     4    (iv)  If  the department of health determines, based on a complaint or
     5  other facts known to the department, that there  is  reason  to  believe
     6  that  an individual or entity is operating an adult home, enriched hous-
     7  ing program, or residence for adults which  does  not  possess  a  valid
     8  operating  certificate  issued  by  the department, and that one or more
     9  conditions or activities at such facility constitute or  are  likely  to
    10  give  rise  to  an  immediate danger to the health of the residents, and
    11  awaiting a court order pursuant to subparagraph (iii) of this  paragraph
    12  would  be  seriously  detrimental  to  the health of such residents, the
    13  department of health may, notwithstanding an objection by the  operator,
    14  administrator  or  other  person in charge, inspect the entire premises,
    15  which shall include access to all dwellings on the said  property  which
    16  house tenants/occupants as well as access to such tenants/occupants, for
    17  the  purpose  of ascertaining whether such danger exists or is likely to
    18  arise on an immediate basis. The department of health  may  request  the
    19  assistance  of  local  law enforcement for purposes of carrying out such
    20  inspection and may take any appropriate action  if  it  determines  that
    21  such  danger  exists  or is likely to arise, including issuing a written
    22  notice directing the operator, administrator or other person  in  charge
    23  of such facility to cease or correct the condition or activity at issue.
    24  As  promptly  as  possible  thereafter,  within  a  period not to exceed
    25  fifteen days, the commissioner shall provide the operator an opportunity
    26  to be heard and to present any proof that  such  condition  or  activity
    27  does  not  constitute  a  danger  to the health of the residents of such
    28  facility. The attorney  general,  upon  request  of  the  department  of
    29  health,  shall be authorized to apply to the supreme court in the county
    30  in which the facility is located for an order for any appropriate  addi-
    31  tional relief.
    32    §  5.  Subdivision  11 of section 460-d of the social services law, as
    33  amended by section 154 of subpart B of part C of chapter 62 of the  laws
    34  of 2011, is amended to read as follows:
    35    11.  On or before issuance by the department to an adult care facility
    36  operator of official written notice of: the proposed revocation, suspen-
    37  sion or denial of the operator's operating certificate;  the  limitation
    38  of  the  operating certificate with respect to new admissions; the issu-
    39  ance of a department order or commissioner's order; the seeking of equi-
    40  table relief pursuant to this  section;  the  [proposed]  assessment  of
    41  civil  penalties  for  violations of the provisions of [subparagraph two
    42  of] paragraph [(b)] (c) of subdivision seven of this section  or  place-
    43  ment  on the "do not refer list" pursuant to subdivision fifteen of this
    44  section, written notice also shall be given to the appropriate office of
    45  the department of mental hygiene, department of corrections and communi-
    46  ty supervision and local social services districts, and provided further
    47  that the department of health shall notify hospitals, residential health
    48  care facilities and adult care facilities in the locality in which  such
    49  facility is located that such notice has been issued. Upon resolution of
    50  such  enforcement action the department shall within ten days notify the
    51  appropriate office of the department of mental  hygiene,  department  of
    52  corrections  and  community supervision, local social services districts
    53  [and], hospitals, residential health  care  facilities  and  adult  care
    54  facilities.
        A. 196--A                           6

     1    §  6.  Subdivision  12 of section 460-d of the social services law, as
     2  amended by section 42 of part B of chapter 58 of the laws  of  2004,  is
     3  amended to read as follows:
     4    12. [Social] Hospitals, residential health care facilities, adult care
     5  facilities,  social  services districts and other local government enti-
     6  ties established pursuant to  this  chapter  shall  be  prohibited  from
     7  making  referrals  for  admissions  to  adult  care facilities that have
     8  received official written notice  regarding:  the  proposed  revocation,
     9  suspension  or denial of the operator's operating certificate; the limi-
    10  tation of the operating certificate with respect to new admissions;  the
    11  issuance  of  department  order or commissioner's orders; the seeking of
    12  equitable relief pursuant to this section[; the proposed  assessment  of
    13  civil  penalties for violations of the provisions of subparagraph two of
    14  paragraph (b) of subdivision seven of this section]; or  the  facility's
    15  placement  on the "do not refer list" pursuant to subdivision fifteen of
    16  this section.
    17    § 7. Section 460-d of the social services law is amended by  adding  a
    18  new subdivision 18 to read as follows:
    19    18. When the department of health issues official written notice to an
    20  operator  of  a  proposed action specified in subdivision eleven of this
    21  section, and the department determines that there is a  condition  which
    22  constitutes  an  imminent danger to the health, safety or welfare of any
    23  resident, the department may prohibit that operator from  admitting  any
    24  new  resident to the facility until the department determines that there
    25  is no longer an imminent danger to the health, safety or welfare of  any
    26  resident.
    27    §  8.  Section 461-c of the social services law is amended by adding a
    28  new subdivision 10 to read as follows:
    29    10. The operator of an adult home or an enriched housing program shall
    30  provide to prospective residents who inquire about admission, and  shall
    31  post   on   its   website,   a   copy   of   the   facility's   approved
    32  admission/residency agreement.
    33    § 9. The closing paragraph of subdivision 3 of section  461-d  of  the
    34  social  services  law,  as  added by chapter 601 of the laws of 1981, is
    35  amended to read as follows:
    36    Waiver of any provision [contained within] of this  subdivision  by  a
    37  resident  of an adult care facility or by the resident's legal represen-
    38  tative or resident representative, with respect  to  a  resident  of  an
    39  adult  home,  residence for adults or enriched housing program, shall be
    40  void.
    41    § 10. Section 461-e of the social services law is amended by adding  a
    42  new subdivision 3-a to read as follows:
    43    3-a. Every adult home and enriched housing program shall:
    44    (a)  Post in a prominent position in the facility so as to be accessi-
    45  ble to all residents and to the general public:
    46    (i) a summary of any report of inspection based on a complaint  issued
    47  by  the  department  of  health to the facility within the previous year
    48  which resulted in the payment of a fine or penalty by the facility; and
    49    (ii) notice of residents' right to review reports under paragraph  (b)
    50  of this subdivision.
    51    (b) Provide to any resident and each applicant for admission an oppor-
    52  tunity to review any report of inspection based on a complaint issued by
    53  the department of health to the facility within the previous year.
    54    (c)  Provide  to  the  resident  council  a  summary  of any report of
    55  inspection based on a complaint issued by the department of health with-
    56  in fourteen days  of receipt by the facility.
        A. 196--A                           7

     1    § 11. Paragraphs (a), (b) and (c) of subdivision 2 of section 461-a of
     2  the social services law, paragraphs (a) and (c) as  amended  by  chapter
     3  735  of  the laws of 1994 and paragraph (b) as amended by chapter 601 of
     4  the laws of 1981, are amended to read as follows:
     5    (a) With respect to adult care facilities the department shall conduct
     6  a  minimum of one unannounced inspection of each such facility to deter-
     7  mine the  adequacy of care being rendered, pursuant to the following:
     8    (1) Such facilities [receiving the department's highest rating] deter-
     9  mined by the department to be in compliance  or  substantial  compliance
    10  with  applicable  statutes and regulations, based on the facility's most
    11  recent inspection, shall be  inspected  at  least  once  every  eighteen
    12  months on an unannounced basis.
    13    (2)  All  other  such  facilities shall be inspected on an unannounced
    14  basis no less than annually.   The commissioner  may  provide  for  more
    15  frequent  inspections  of any such facilities. Such inspection shall not
    16  be required with respect to any facility for which the commissioner  has
    17  delegated  responsibility  for  inspection  and  supervision to a social
    18  services official pursuant to  section  four  hundred  sixty-c  of  this
    19  [chapter]  article.  Any employee of the department or a social services
    20  district who gives or causes to be given advance notice  of  such  unan-
    21  nounced  inspections  to  any unauthorized persons shall, in addition to
    22  any other penalty provided by law, be suspended by the department or the
    23  social services district from all duties without pay for at  least  five
    24  days  or  for  such  greater  period of time as the department or social
    25  services district shall determine.  Any such suspension shall be made by
    26  the department or social services district in accordance with all  other
    27  applicable provisions of law.
    28    (b)  [The department or a social services district, where appropriate,
    29  shall each year conduct a minimum of one full inspection of  each  adult
    30  care  facility. Such inspection] An inspection of an adult care facility
    31  under this section shall include, but shall not be limited to,  examina-
    32  tion of the medical, dietary and social services records of the facility
    33  as well as the minimum standards of construction, life safety standards,
    34  quality  and  adequacy  of  care,  rights of residents, payments and all
    35  other areas of operation. The purpose of  any  inspection  shall  be  to
    36  determine  compliance  with requirements of applicable provisions of law
    37  and regulations of the department.
    38    (c) (i) An inspection report shall be made of  each  inspection  which
    39  shall  clearly  identify  and indicate in detail each area of operation,
    40  including, but not limited to, the premises, equipment, personnel, resi-
    41  dent care and services, and whether [each] any such area of operation or
    42  any of its component parts is [or is] not in compliance with  the  regu-
    43  lations of the department and all other applicable requirements. It also
    44  shall  identify  those  areas of operation or any of its component parts
    45  found not in compliance as a result of failure in systemic practices and
    46  procedures. The operator  shall  be  notified  of  the  results  of  the
    47  inspection in a manner to be determined by regulations of the department
    48  and  shall  submit a written plan of correction to the department within
    49  thirty calendar days from the date the inspection  report  is  received.
    50  The  department  shall  notify  the operator of the acceptability of the
    51  plan of correction within  thirty  calendar  days  of  the  department's
    52  receipt of such plan.  Such notification shall contain directions as may
    53  be appropriate as to the manner and time in which compliance with appli-
    54  cable  requirements  of  law  or  regulations of the department shall be
    55  effected.
        A. 196--A                           8

     1    (ii) The department shall also require the operator of an adult  home,
     2  enriched  housing program or residence for adults to develop, biannually
     3  update and implement plans for quality  assurance  activities  for  each
     4  area  of  operation.  Quality  assurance  activities include but are not
     5  limited  to, development and maintenance of performance standards, meas-
     6  urement of adherence to such standards and to applicable state and local
     7  laws and regulations, identification of  performance  failures,  design,
     8  and implementation of corrective action.
     9    §  12.  Paragraph  (c) of subdivision 2 of section 461-a of the social
    10  services law, as amended by chapter 769 of the laws of 2021, is  amended
    11  to read as follows:
    12    (c)  (i)  An  inspection report shall be made of each inspection which
    13  shall clearly identify and indicate in detail each  area  of  operation,
    14  including, but not limited to, the premises, equipment, personnel, resi-
    15  dent care and services, and whether [each] any such area of operation or
    16  any  of  its component parts is [or is] not in compliance with the regu-
    17  lations of the department and all other applicable requirements. It also
    18  shall identify those areas of operation or any of  its  component  parts
    19  found not in compliance as a result of failure in systemic practices and
    20  procedures.  The  operator  shall  be  notified  of  the  results of the
    21  inspection in a manner to be determined by regulations of the department
    22  and shall submit a written plan of correction to the  department  within
    23  thirty  calendar  days  from the date the inspection report is received.
    24  The department shall notify the operator of  the  acceptability  of  the
    25  plan  of  correction  within  thirty  calendar  days of the department's
    26  receipt of such plan.  Such notification shall contain directions as may
    27  be appropriate as to the manner and time in which compliance with appli-
    28  cable requirements of law or regulations  of  the  department  shall  be
    29  effected.
    30    (ii)  The department shall also require the operator of an adult home,
    31  enriched housing program or residence for adults to develop,  biannually
    32  update  and  implement  plans  for quality assurance activities for each
    33  area of operation.   Quality assurance activities include  but  are  not
    34  limited to, development and maintenance of performance standards includ-
    35  ing infection control, measurement of adherence to such standards and to
    36  applicable  state  and  local  laws  and  regulations, identification of
    37  performance failures, design, and implementation of  corrective  action.
    38  Each  plan  must  also  include  the  creation  of a quality improvement
    39  committee that is charged with meeting periodically, at least once every
    40  six months, to review summary findings from monitoring implementation of
    41  the facility's plan, evaluating the effectiveness of  corrective  action
    42  policies,  and  identifying  trends  and  improvement  activities. While
    43  reviewing  facility  performance,  the  committee  shall   not   examine
    44  personally identifiable resident incidents. Such committee shall include
    45  the  administrator  or  operator  of  the facility, the resident council
    46  president or other resident  representative,  and  representatives  from
    47  frontline employees from each area of operation.
    48    § 13.  Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of
    49  section  29.15  of  the mental hygiene law, as amended by chapter 168 of
    50  the laws of 2010, are amended to read as follows:
    51    (I) A patient about to be discharged or conditionally released from  a
    52  department  facility  licensed or operated by the office for people with
    53  developmental disabilities or from an  inpatient  facility  operated  or
    54  licensed  by  the  office  of [alcoholism and substance abuse] addiction
    55  services and supports or the office of mental health to an  adult  home,
    56  enriched  housing program or residence for adults, as defined in section
        A. 196--A                           9

     1  two of the social services law, shall be referred only to such  home  or
     2  residence that is consistent with that patient's needs and that operates
     3  pursuant  to  section  four  hundred  sixty  of the social services law,
     4  provided  further  that: (A) for a department facility licensed or oper-
     5  ated by the office for people with developmental disabilities or for  an
     6  inpatient  facility  operated by the office of [alcoholism and substance
     7  abuse] addiction services and supports or the office of  mental  health,
     8  the  facility  director retains authority to determine whether the home,
     9  program or residence is consistent with that  patient's  needs  and  (B)
    10  such referral shall be made to the patient's home county whenever possi-
    11  ble or appropriate.
    12    (II)  No patient about to be discharged or conditionally released from
    13  a department facility licensed or operated by the office for people with
    14  developmental disabilities or from an  inpatient  facility  operated  or
    15  licensed  by  the  office  of [alcoholism and substance abuse] addiction
    16  services and supports or the office of mental health shall  be  referred
    17  to  any adult home, enriched housing program or residence for adults, as
    18  defined in section two of the social services law, which has received an
    19  official written notice from  the  department  of  health  of:  (A)  the
    20  proposed  revocation, suspension or denial of its operating certificate;
    21  (B) the limitation of its operating  certificate  with  respect  to  new
    22  admissions;  (C) the issuance of a department of health order or commis-
    23  sioner of health's order or the seeking of equitable relief pursuant  to
    24  section  four  hundred  sixty-d  of  the  social  services  law; (D) the
    25  proposed assessment of civil penalties for violations of the  provisions
    26  of  [subparagraph  two  of]  paragraph [(b)] (c) of subdivision seven of
    27  section four hundred sixty-d of the social services law; or placement on
    28  the "do not refer list" pursuant to subdivision fifteen of section  four
    29  hundred  sixty-d  of  the social services law. Referrals may resume when
    30  such enforcement actions are resolved.
    31    § 14. Severability clause. If any provision of this act, or any appli-
    32  cation of any provision of this act,  is  held  to  be  invalid,  or  to
    33  violate  or  be  inconsistent  with  any federal law or regulation, that
    34  shall not affect the validity or effectiveness of any other provision of
    35  this act, which can be given effect without that provision  or  applica-
    36  tion;  and  to that end, the provisions and applications of this act are
    37  severable.
    38    § 15. This act shall take effect on the ninetieth day after  it  shall
    39  have become a law; provided, however, that if chapter 769 of the laws of
    40  2021  shall  not  have  taken effect on or before such date then section
    41  twelve of this act shall take effect on the same date and  in  the  same
    42  manner  as    chapter  769  of the laws of 2021 takes effect.  Effective
    43  immediately, the commissioner of health shall make regulations and  take
    44  other actions necessary to implement this act on that date.