Bill Text: NY A05485 | 2023-2024 | General Assembly | Amended
Bill Title: Expands protections regarding 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 38-0)
Status: (Introduced - Dead) 2024-04-10 - print number 5485a [A05485 Detail]
Download: New_York-2023-A05485-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 5485--A 2023-2024 Regular Sessions IN ASSEMBLY March 13, 2023 ___________ Introduced by M. of A. PAULIN, BRONSON, STECK, L. ROSENTHAL, BENEDETTO, DINOWITZ, HYNDMAN, LUPARDO, SAYEGH, DARLING, SEAWRIGHT, COLTON, STIRPE, JACOBSON, EPSTEIN, WALKER, SIMON, JACKSON, FORREST, CRUZ, CARROLL, HUNTER, MEEKS, WALLACE, McMAHON, LUNSFORD, CLARK, KELLES, MITAYNES, ZINERMAN, REYES, GIBBS, GLICK, MAMDANI, McDONALD -- Multi- Sponsored by -- M. of A. COOK, THIELE -- read once and referred to the Committee on Health -- recommitted to the Committee on Health in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee 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. LBD02412-13-4A. 5485--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 violation, per day 12 and for repeat violations, under subparagraph two of paragraph (c) of 13 this subdivision for which a prior penalty was assessed, an amount up to 14 five thousand dollars per violation, per day to be assessed against all 15 adult care facilities [except facilities operated by a social services16district] for violations of (i) regulations of the department pertaining 17 to the care of residents in such facilities, (ii) paragraph (a) of 18 subdivision three of section four hundred sixty-one-a of this [chapter] 19 article, or (iii) an order issued pursuant to subdivision eight of this 20 section. The regulations shall specify the violations subject to penalty 21 and the amount of the penalty to be assessed in connection with each 22 such violation and shall specify that only civil penalties of up to 23 [one] two thousand dollars [per day] per violation, per day, shall be 24 assessed pursuant to this paragraph against an adult care facility found 25 responsible for an act of retaliation or reprisal against any resident, 26 employee, or other person for having filed a complaint with or having 27 provided information to any long term care [patient] ombudsman function- 28 ing in accordance with section [five hundred forty-four or five hundred29forty-five] two hundred 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] such 49 commissioner's staff who is designated and authorized by [him] such 50 commissioner to hold such hearing, may in [his] such commissioner's 51 discretion allow the facility to prove any matter not included in the 52 answer. 53 (c) (1) Where the facility satisfactorily demonstrates that it either 54 had rectified the violations within thirty days of receiving written 55 notification of the results of the inspection pursuant to section four 56 hundred sixty-one-a of this [chapter] article, or had submitted withinA. 5485--A 3 1 thirty days an acceptable plan for rectification and was rectifying the 2 violations in accordance with the steps and within the additional peri- 3 ods of time as accepted by the department in such plan, no penalty shall 4 be imposed, except as provided in subparagraph two of this paragraph. 5 (2) Rectification shall not preclude the assessment of a penalty if 6 the department establishes at a hearing that a particular violation, 7 although corrected[, endangered or resulted in harm to any resident as8the result of]: 9 (i) endangered any resident. Endangerment is defined as: 10 (A) the total or substantial failure of the facility's fire detection 11 or prevention systems, or emergency evacuation procedures prescribed by 12 department safety standard regulations; 13 [(ii)] (B) the retention of any resident who has been evaluated by the 14 resident's physician as being medically or mentally unsuited for care in 15 the facility or as requiring placement in a hospital or residential 16 health care facility and for whom the operator is not making persistent 17 efforts to secure appropriate placement; 18 [(iii)] (C) the failure in systemic practices and procedures which 19 shall be defined as widespread or chronic, and material, noncompliance 20 with statutory or regulatory requirements, including but not limited to 21 the rights of residents under section four hundred sixty-one-d of this 22 article; 23 [(iv)] (D) the failure of the operator to take actions as required by 24 department regulations in the event of a resident's illness or accident; 25 [(v)] (E) the failure of the operator to provide at all times super- 26 vision of residents by numbers of staff at least equivalent to the night 27 staffing requirement set forth in department regulations; or 28 [(vi)] (F) [unreasonable] threats of retaliation or taking reprisals, 29 including but not limited to [unreasonable] threats of eviction or 30 hospitalization, against any resident, employee or other person who 31 makes a complaint concerning the operation of an adult care facility, 32 participates in the investigation of a complaint or is the subject of an 33 action identified in a complaint[.34The department shall specify in its regulations those regulations to35which this subparagraph two shall apply.36(3) In assessing penalties pursuant to this paragraph, the department37shall consider promptness of rectification, delay occasioned by the38department, and the specific circumstances of the violations as mitigat-39ing factors.40(c)]; or 41 (ii) resulted in harm to any resident, including but not limited to: 42 (A) physical harm; 43 (B) loss or denial of access to money or other personal property, 44 including but not limited to a violation of section one hundred thirty- 45 one-o of this chapter; or 46 (C) being subjected to (I) conduct by an operator, administrator, case 47 manager, or other employee in a supervisory position that violates the 48 rights of a resident under section four hundred sixty-one-d of this 49 article, or (II) an egregious failure by an operator, administrator, 50 case manager, or other employee in a supervisory position to ensure the 51 rights of a resident under section four hundred sixty-one-d of this 52 article. 53 (d) In assessing penalties pursuant to this paragraph, the department 54 shall consider promptness of rectification, delay occasioned by the 55 department, and the specific circumstances of the violations as mitigat- 56 ing factors.A. 5485--A 4 1 (e) Upon the request of the department, the attorney general may 2 commence an action in any court of competent jurisdiction against any 3 facility subject to the provisions of this section, and against any 4 person or corporation operating such facility, for the recovery of any 5 penalty assessed by the department in accordance with the provisions of 6 this subdivision. 7 [(d)] (f) Any such penalty assessed by the department may be released 8 or compromised by the department, subject to and consistent with para- 9 graph (c) of this subdivision, before the matter has been referred to 10 the attorney general, and where such matter has been referred to the 11 attorney general, any such penalty may be released or compromised and 12 any action commenced to recover the same may be settled and discontinued 13 by the attorney general, after considering paragraph (c) of this subdi- 14 vision and with the consent of the department. 15 § 3. Paragraphs (a) and (b) of subdivision 9 of section 460-d of the 16 social services law, paragraph (a) as amended by chapter 558 of the laws 17 of 1999 and paragraph (b) as added by chapter 848 of the laws of 1992, 18 are amended to read as follows: 19 (a) The department shall have authority to impose a civil penalty [not20exceeding one thousand dollars per day] consistent with section twelve 21 of the public health law against, and to issue an order requiring the 22 closing of, after notice and opportunity to be heard, any facility which 23 does not possess a valid operating certificate issued by the department 24 and is an adult care facility subject to the provisions of this article 25 and the regulations of the department. A hearing shall be conducted in 26 accordance with procedures established by department regulations which 27 procedures shall require that notice of the determination that the 28 facility is an adult care facility and the reasons for such determi- 29 nation and notice of the time and place of the hearing be served in 30 person on the operator, owner or prime lessor, if any, or by certified 31 mail, return receipt requested, addressed to such person and received at 32 least twenty days prior to the date of the hearing. If such operator, 33 owner or prime lessor, if any, is not known to the department, then 34 service may be made by posting a copy thereof in a conspicuous place 35 within the facility or by sending a copy thereof by certified mail, 36 return receipt requested, addressed to the facility. A written answer to 37 the notice of violation may be filed with the department not less than 38 five days prior to the date of the hearing. Demonstration by the facil- 39 ity that it possessed an operating certificate issued pursuant to this 40 article, article twenty-eight of the public health law or article 41 sixteen, [twenty-three,] thirty-one or thirty-two of the mental hygiene 42 law at the time the hearing was commenced shall constitute a complete 43 defense to any charges made pursuant to this subdivision. 44 (b) [The penalty authorized by this section shall begin to run thirty45days after the department provides the operator, in writing, with a46summary of the inspection of the facility by which the department deter-47mined that he or she is operating an uncertified adult care facility.] 48 The submission of an application by the operator for an operating 49 certificate for the facility shall not act as a bar to the imposition of 50 a penalty against the operator of an unlicensed adult care facility. 51 § 4. Paragraph (c) of subdivision 9 of section 460-d of the social 52 services law is amended by adding a new subparagraph (iv) to read as 53 follows: 54 (iv) If the department of health determines, based on a complaint or 55 other facts known to the department, that there is reason to believe 56 that an individual or entity is operating an adult home, enriched hous-A. 5485--A 5 1 ing program, or residence for adults which does not possess a valid 2 operating certificate issued by the department, and that one or more 3 conditions or activities at such facility constitute or are likely to 4 give rise to an immediate danger to the health of the residents, and 5 awaiting a court order pursuant to subparagraph (iii) of this paragraph 6 would be seriously detrimental to the health of such residents, the 7 department of health may, notwithstanding an objection by the operator, 8 administrator or other person in charge, inspect the entire premises, 9 which shall include access to all dwellings on the said property which 10 house tenants/occupants as well as access to such tenants/occupants, for 11 the purpose of ascertaining whether such danger exists or is likely to 12 arise on an immediate basis. The department of health may request the 13 assistance of local law enforcement for purposes of carrying out such 14 inspection and may take any appropriate action if it determines that 15 such danger exists or is likely to arise, including issuing a written 16 notice directing the operator, administrator or other person in charge 17 of such facility to cease or correct the condition or activity at issue. 18 As promptly as possible thereafter, within a period not to exceed 19 fifteen days, the commissioner shall provide the operator an opportunity 20 to be heard and to present any proof that such condition or activity 21 does not constitute a danger to the health of the residents of such 22 facility. The attorney general, upon request of the department of 23 health, shall be authorized to apply to the supreme court in the county 24 in which the facility is located for an order for any appropriate addi- 25 tional relief. 26 § 5. Subdivision 11 of section 460-d of the social services law, as 27 amended by section 154 of subpart B of part C of chapter 62 of the laws 28 of 2011, is amended to read as follows: 29 11. On or before issuance by the department to an adult care facility 30 operator of official written notice of: the proposed revocation, suspen- 31 sion or denial of the operator's operating certificate; the limitation 32 of the operating certificate with respect to new admissions; the issu- 33 ance of a department order or commissioner's order; the seeking of equi- 34 table relief pursuant to this section; the [proposed] assessment of 35 civil penalties for violations of the provisions of [subparagraph two36of] paragraph [(b)] (c) of subdivision seven of this section or place- 37 ment on the "do not refer list" pursuant to subdivision fifteen of this 38 section, written notice also shall be given to the appropriate office of 39 the department of mental hygiene, department of corrections and communi- 40 ty supervision and local social services districts, and provided further 41 that the department of health shall notify hospitals, residential health 42 care facilities and adult care facilities in the locality in which such 43 facility is located that such notice has been issued. Upon resolution of 44 such enforcement action the department shall within ten days notify the 45 appropriate office of the department of mental hygiene, department of 46 corrections and community supervision, local social services districts 47 [and], hospitals, residential health care facilities and adult care 48 facilities. 49 § 6. Subdivision 12 of section 460-d of the social services law, as 50 amended by section 42 of part B of chapter 58 of the laws of 2004, is 51 amended to read as follows: 52 12. [Social] Hospitals, residential health care facilities, adult care 53 facilities, social services districts and other local government enti- 54 ties established pursuant to this chapter shall be prohibited from 55 making referrals for admissions to adult care facilities that have 56 received official written notice regarding: the proposed revocation,A. 5485--A 6 1 suspension or denial of the operator's operating certificate; the limi- 2 tation of the operating certificate with respect to new admissions; the 3 issuance of department order or commissioner's orders; the seeking of 4 equitable relief pursuant to this section[; the proposed assessment of5civil penalties for violations of the provisions of subparagraph two of6paragraph (b) of subdivision seven of this section]; or the facility's 7 placement on the "do not refer list" pursuant to subdivision fifteen of 8 this section. 9 § 7. Section 460-d of the social services law is amended by adding a 10 new subdivision 18 to read as follows: 11 18. When the department of health issues official written notice to an 12 operator of a proposed action specified in subdivision eleven of this 13 section, and the department determines that there is a condition which 14 constitutes an imminent danger to the health, safety or welfare of any 15 resident, the department may prohibit that operator from admitting any 16 new resident to the facility until the department determines that there 17 is no longer an imminent danger to the health, safety or welfare of any 18 resident. 19 § 8. Section 461-c of the social services law is amended by adding a 20 new subdivision 10 to read as follows: 21 10. The operator of an adult home or an enriched housing program shall 22 provide to prospective residents who inquire about admission, and shall 23 post on its website, a copy of the facility's approved 24 admission/residency agreement. 25 § 9. The closing paragraph of subdivision 3 of section 461-d of the 26 social services law, as added by chapter 601 of the laws of 1981, is 27 amended to read as follows: 28 Waiver of any provision [contained within] of this subdivision by a 29 resident of an adult care facility or by the resident's legal represen- 30 tative or resident representative, with respect to a resident of an 31 adult home, residence for adults or enriched housing program, shall be 32 void. 33 § 10. Section 461-e of the social services law is amended by adding a 34 new subdivision 3-a to read as follows: 35 3-a. Every adult home and enriched housing program shall: 36 (a) Post in a prominent position in the facility so as to be accessi- 37 ble to all residents and to the general public: 38 (i) a summary of any report of inspection based on a complaint issued 39 by the department of health to the facility within the previous year 40 which resulted in the payment of a fine or penalty by the facility; and 41 (ii) notice of residents' right to review reports under paragraph (b) 42 of this subdivision. 43 (b) Provide to any resident and each applicant for admission an oppor- 44 tunity to review any report of inspection based on a complaint issued by 45 the department of health to the facility within the previous year. 46 (c) Provide to the resident council a summary of any report of 47 inspection based on a complaint issued by the department of health with- 48 in fourteen days of receipt by the facility. 49 § 11. Paragraphs (b) and (c) of subdivision 2 of section 461-a of the 50 social services law, paragraph (b) as amended by chapter 601 of the laws 51 of 1981 and paragraph (c) as amended by chapter 769 of the laws of 2021, 52 are amended to read as follows: 53 (b) [The department or a social services district, where appropriate,54shall each year conduct a minimum of one full inspection of each adult55care facility. Such inspection] An inspection of an adult care facility 56 under this section shall include, but shall not be limited to, examina-A. 5485--A 7 1 tion of the medical, dietary and social services records of the facility 2 as well as the minimum standards of construction, life safety standards, 3 quality and adequacy of care, rights of residents, payments and all 4 other areas of operation. The purpose of any inspection shall be to 5 determine compliance with requirements of applicable provisions of law 6 and regulations of the department. 7 (c) (i) An inspection report shall be made of each inspection which 8 shall clearly identify and indicate in detail each area of operation, 9 including, but not limited to, the premises, equipment, personnel, resi- 10 dent care and services, and whether [each] any such area of operation or 11 any of its component parts is [or is] not in compliance with the regu- 12 lations of the department and all other applicable requirements. It also 13 shall identify those areas of operation or any of its component parts 14 found not in compliance as a result of failure in systemic practices and 15 procedures. The operator shall be notified of the results of the 16 inspection in a manner to be determined by regulations of the depart- 17 ment[. Such notification shall contain directions as may be appropriate18as to the manner and time in which compliance with applicable require-19ments of law or regulations of the department shall be effected] and 20 shall submit a written plan of correction to the department within thir- 21 ty calendar days from the date the inspection report is received. The 22 department shall notify the operator of the acceptability of the plan of 23 correction within thirty calendar days of the department's receipt of 24 such plan. 25 (ii) The department shall also require the operator of an adult home, 26 enriched housing program or residence for adults to develop, [biannual-27ly] annually update and implement plans for quality assurance activities 28 for each area of operation. Quality assurance activities include but 29 are not limited to, development and maintenance of performance standards 30 including infection control, measurement of adherence to such standards 31 and to applicable state and local laws and regulations, identification 32 of performance failures, design, and implementation of corrective 33 action. Each plan must also include the creation of a quality improve- 34 ment committee that is charged with meeting periodically, at least once 35 every six months, to review summary findings from monitoring implementa- 36 tion of the facility's plan, evaluating the effectiveness of corrective 37 action policies, and identifying trends and improvement activities. 38 While reviewing facility performance, the committee shall not examine 39 personally identifiable resident incidents. Such committee shall include 40 the administrator or operator of the facility, the resident council 41 president or other resident representative, and representatives from 42 frontline employees from each area of operation. 43 § 12. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of 44 section 29.15 of the mental hygiene law, as amended by chapter 168 of 45 the laws of 2010, are amended to read as follows: 46 (I) A patient about to be discharged or conditionally released from a 47 department facility licensed or operated by the office for people with 48 developmental disabilities or from an inpatient facility operated or 49 licensed by the office of [alcoholism and substance abuse] addiction 50 services and supports or the office of mental health to an adult home, 51 enriched housing program or residence for adults, as defined in section 52 two of the social services law, shall be referred only to such home or 53 residence that is consistent with that patient's needs and that operates 54 pursuant to section four hundred sixty of the social services law, 55 provided further that: (A) for a department facility licensed or oper- 56 ated by the office for people with developmental disabilities or for anA. 5485--A 8 1 inpatient facility operated by the office of [alcoholism and substance2abuse] addiction services and supports or the office of mental health, 3 the facility director retains authority to determine whether the home, 4 program or residence is consistent with that patient's needs and (B) 5 such referral shall be made to the patient's home county whenever possi- 6 ble or appropriate. 7 (II) No patient about to be discharged or conditionally released from 8 a department facility licensed or operated by the office for people with 9 developmental disabilities or from an inpatient facility operated or 10 licensed by the office of [alcoholism and substance abuse] addiction 11 services and supports or the office of mental health shall be referred 12 to any adult home, enriched housing program or residence for adults, as 13 defined in section two of the social services law, which has received an 14 official written notice from the department of health of: (A) the 15 proposed revocation, suspension or denial of its operating certificate; 16 (B) the limitation of its operating certificate with respect to new 17 admissions; (C) the issuance of a department of health order or commis- 18 sioner of health's order or the seeking of equitable relief pursuant to 19 section four hundred sixty-d of the social services law; (D) the 20 proposed assessment of civil penalties for violations of the provisions 21 of [subparagraph two of] paragraph [(b)] (c) of subdivision seven of 22 section four hundred sixty-d of the social services law; or placement on 23 the "do not refer list" pursuant to subdivision fifteen of section four 24 hundred sixty-d of the social services law. Referrals may resume when 25 such enforcement actions are resolved. 26 § 13. The commissioner of health shall develop a plan for posting all 27 the plans of correction and statements of deficiencies for all forms of 28 adult care facilities. Such plan shall include an analysis of the fiscal 29 impact and the time required to post such information. Such plan shall 30 be sent to the chairs of the senate and assembly health committees as 31 well as the director of the budget within one hundred days from the 32 effective date of this act. 33 § 14. Severability clause. If any provision of this act, or any appli- 34 cation of any provision of this act, is held to be invalid, or to 35 violate or be inconsistent with any federal law or regulation, that 36 shall not affect the validity or effectiveness of any other provision of 37 this act, which can be given effect without that provision or applica- 38 tion; and to that end, the provisions and applications of this act are 39 severable. 40 § 15. This act shall take effect on the thirtieth day after it shall 41 have become a law.
