Bill Text: NY S03460 | 2019-2020 | General Assembly | Amended
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 7-0)
Status: (Introduced - Dead) 2020-03-17 - PRINT NUMBER 3460A [S03460 Detail]
Download: New_York-2019-S03460-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 3460--A 2019-2020 Regular Sessions IN SENATE February 7, 2019 ___________ Introduced by Sens. RIVERA, HOYLMAN, KRUEGER, MAY, MONTGOMERY, PERSAUD -- read twice and ordered printed, and when printed to be committed to the Committee on Social Services -- recommitted to the Committee on Health in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 18 a reasonable period of time, the hearing officer may authorize the 19 department to extend the period of suspension or limitation for an 20 appropriate period of time, but in no event beyond an additional thirty 21 days. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04051-11-0S. 3460--A 2 1 § 2. Subdivision 7 of section 460-d of the social services law, as 2 added by chapter 669 of the laws of 1977, paragraph (a) as amended by 3 chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524 4 of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap- 5 ter 733 of the laws of 1994, is amended to read as follows: 6 7. (a) The department shall adopt regulations establishing civil 7 penalties of up to [one] two thousand dollars per day per violation, 8 and, for repeat violations, under subparagraph two of paragraph (c) of 9 this subdivision for which a prior penalty was assessed, up to three 10 thousand dollars per day per violation to be assessed against all adult 11 care facilities except facilities operated by a social services district 12 for violations of (i) regulations of the department pertaining to the 13 care of residents in such facilities, (ii) paragraph (a) of subdivision 14 three of section four hundred sixty-one-a of this [chapter] article, or 15 (iii) an order issued pursuant to subdivision eight of this section. The 16 regulations shall specify the violations subject to penalty and the 17 amount of the penalty to be assessed in connection with each such 18 violation and shall specify that only civil penalties of up to [one] two 19 thousand dollars per day per violation shall be assessed pursuant to 20 this paragraph against an adult care facility found responsible for an 21 act of retaliation or reprisal against any resident, employee, or other 22 person for having filed a complaint with or having provided information 23 to any long term care [patient] ombudsman functioning in accordance with 24 section [five hundred forty-four or five hundred forty-five] two hundred 25 eighteen of the [executive] elder law. 26 (b) [(1)] In addition to any other civil or criminal penalty provided 27 by law, the department shall have the power to assess civil penalties in 28 accordance with its regulations adopted pursuant to paragraph (a) of 29 this subdivision, after a hearing conducted in accordance with the 30 procedures established by regulations of the department. Such procedures 31 shall require that notice of the time and place of the hearing, together 32 with a statement of charges of violations, shall be served in person or 33 by certified mail addressed to the facility at least thirty days prior 34 to the date of the hearing. The statement of charges of violations shall 35 set forth the existence of the violations, the amount of penalty for 36 which it may become liable and the steps which must be taken to rectify 37 the violation and, where applicable, a statement that the department 38 contends that a penalty may be imposed under this paragraph regardless 39 of rectification. An answer to the charges of violations, in writing, 40 shall be filed with the department, not less than ten days prior to the 41 date of hearing. The answer shall notify the department of the facili- 42 ty's position with respect to each of the charges and shall include all 43 matters which if not disclosed in the answer would be likely to take the 44 department by surprise. The commissioner, or a member of his staff who 45 is designated and authorized by him to hold such hearing, may in his 46 discretion allow the facility to prove any matter not included in the 47 answer. 48 (c) (1) Where the facility satisfactorily demonstrates that it either 49 had rectified the violations within thirty days of receiving written 50 notification of the results of the inspection pursuant to section four 51 hundred sixty-one-a of this [chapter] article, or had submitted within 52 thirty days an acceptable plan for rectification and was rectifying the 53 violations in accordance with the steps and within the additional peri- 54 ods of time as accepted by the department in such plan, no penalty shall 55 be imposed, except as provided in subparagraph two of this paragraph.S. 3460--A 3 1 (2) Rectification shall not preclude the assessment of a penalty if 2 the department establishes at a hearing that a particular violation, 3 although corrected[, endangered or resulted in harm to any resident as4the result of]: 5 (i) endangered any resident. Endangerment is defined as: 6 (A) the total or substantial failure of the facility's fire detection 7 or prevention systems, or emergency evacuation procedures prescribed by 8 department safety standard regulations; 9 [(ii)] (B) the retention of any resident who has been evaluated by the 10 resident's physician as being medically or mentally unsuited for care in 11 the facility or as requiring placement in a hospital or residential 12 health care facility and for whom the operator is not making persistent 13 efforts to secure appropriate placement; 14 [(iii)] (C) the failure in systemic practices and procedures which 15 shall be defined as widespread or chronic, and material, noncompliance 16 with statutory or regulatory requirements, including but not limited to 17 the rights of residents under section four hundred sixty-one-d of this 18 article; 19 [(iv)] (D) the failure of the operator to take actions as required by 20 department regulations in the event of a resident's illness or accident; 21 [(v)] (E) the failure of the operator to provide at all times super- 22 vision of residents by numbers of staff at least equivalent to the night 23 staffing requirement set forth in department regulations; or 24 [(vi)] (F) [unreasonable] threats of retaliation or taking reprisals, 25 including but not limited to [unreasonable] threats of eviction or 26 hospitalization, against any resident, employee or other person who 27 makes a complaint concerning the operation of an adult care facility, 28 participates in the investigation of a complaint or is the subject of an 29 action identified in a complaint[.30The department shall specify in its regulations those regulations to31which this subparagraph two shall apply.32(3) In assessing penalties pursuant to this paragraph, the department33shall consider promptness of rectification, delay occasioned by the34department, and the specific circumstances of the violations as mitigat-35ing factors.36(c)]; 37 (ii) resulted in harm to any resident, including but not limited to: 38 (A) physical harm; 39 (B) loss or denial of access to money or other personal property, 40 including but not limited to a violation of section one hundred thirty- 41 one-o of this chapter; or 42 (C) being subjected to (I) conduct by an operator, administrator, case 43 manager, or other employee in a supervisory position that violates the 44 rights of a resident under section four hundred sixty-one-d of this 45 article, or (II) an egregious failure by an operator, administrator, 46 case manager, or other employee in a supervisory position to ensure the 47 rights of a resident under section four hundred sixty-one-d of this 48 article; or 49 (iii) is an identical repeat violation. Repeat violation is defined as 50 a violation of the same provision of regulation for which the facility 51 received notice of a citation issued by the department at any time in 52 the previous twelve months. 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.S. 3460--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-S. 3460--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,S. 3460--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 (a), (b) and (c) of subdivision 2 of section 461-a of 50 the social services law, paragraphs (a) and (c) as amended by chapter 51 735 of the laws of 1994 and paragraph (b) as amended by chapter 601 of 52 the laws of 1981, are amended to read as follows: 53 (a) With respect to adult care facilities the department shall conduct 54 a minimum of one unannounced inspection of each such facility to deter- 55 mine the adequacy of care being rendered, pursuant to the following:S. 3460--A 7 1 (1) Such facilities [receiving the department's highest rating] deter- 2 mined by the department to be in compliance or substantial compliance 3 with applicable statutes and regulations, based on the facility's most 4 recent inspection, shall be inspected at least once every eighteen 5 months on an unannounced basis. 6 (2) All other such facilities shall be inspected on an unannounced 7 basis no less than annually. The commissioner may provide for more 8 frequent inspections of any such facilities. Such inspection shall not 9 be required with respect to any facility for which the commissioner has 10 delegated responsibility for inspection and supervision to a social 11 services official pursuant to section four hundred sixty-c of this 12 [chapter] article. Any employee of the department or a social services 13 district who gives or causes to be given advance notice of such unan- 14 nounced inspections to any unauthorized persons shall, in addition to 15 any other penalty provided by law, be suspended by the department or the 16 social services district from all duties without pay for at least five 17 days or for such greater period of time as the department or social 18 services district shall determine. Any such suspension shall be made by 19 the department or social services district in accordance with all other 20 applicable provisions of law. 21 (b) [The department or a social services district, where appropriate,22shall each year conduct a minimum of one full inspection of each adult23care facility. Such inspection] An inspection of an adult care facility 24 under this section shall include, but shall not be limited to, examina- 25 tion of the medical, dietary and social services records of the facility 26 as well as the minimum standards of construction, life safety standards, 27 quality and adequacy of care, rights of residents, payments and all 28 other areas of operation. The purpose of any inspection shall be to 29 determine compliance with requirements of applicable provisions of law 30 and regulations of the department. 31 (c) (i) An inspection report shall be made of each inspection which 32 shall clearly identify and indicate in detail each area of operation, 33 including, but not limited to, the premises, equipment, personnel, resi- 34 dent care and services, and whether [each] any such area of operation or 35 any of its component parts is [or is] not in compliance with the regu- 36 lations of the department and all other applicable requirements. It also 37 shall identify those areas of operation or any of its component parts 38 found not in compliance as a result of failure in systemic practices and 39 procedures. The operator shall be notified of the results of the 40 inspection in a manner to be determined by regulations of the department 41 and shall submit a written plan of correction to the department within 42 thirty calendar days from the date the inspection report is received. 43 The department shall notify the operator of the acceptability of the 44 plan of correction within thirty calendar days of the department's 45 receipt of such plan. Such notification shall contain directions as may 46 be appropriate as to the manner and time in which compliance with appli- 47 cable requirements of law or regulations of the department shall be 48 effected. 49 (ii) The department shall also require the operator of an adult home, 50 enriched housing program or residence for adults to develop, biannually 51 update and implement plans for quality assurance activities for each 52 area of operation. Quality assurance activities include but are not 53 limited to, development and maintenance of performance standards, meas- 54 urement of adherence to such standards and to applicable state and local 55 laws and regulations, identification of performance failures, design, 56 and implementation of corrective action.S. 3460--A 8 1 § 12. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of 2 section 29.15 of the mental hygiene law, as amended by chapter 168 of 3 the laws of 2010, are amended to read as follows: 4 (I) A patient about to be discharged or conditionally released from a 5 department facility licensed or operated by the office for people with 6 developmental disabilities or from an inpatient facility operated or 7 licensed by the office of [alcoholism and substance abuse] addiction 8 services and supports or the office of mental health to an adult home, 9 enriched housing program or residence for adults, as defined in section 10 two of the social services law, shall be referred only to such home or 11 residence that is consistent with that patient's needs and that operates 12 pursuant to section four hundred sixty of the social services law, 13 provided further that: (A) for a department facility licensed or oper- 14 ated by the office for people with developmental disabilities or for an 15 inpatient facility operated by the office of [alcoholism and substance16abuse] addiction services and supports or the office of mental health, 17 the facility director retains authority to determine whether the home, 18 program or residence is consistent with that patient's needs and (B) 19 such referral shall be made to the patient's home county whenever possi- 20 ble or appropriate. 21 (II) No patient about to be discharged or conditionally released from 22 a department facility licensed or operated by the office for people with 23 developmental disabilities or from an inpatient facility operated or 24 licensed by the office of [alcoholism and substance abuse] addiction 25 services and supports or the office of mental health shall be referred 26 to any adult home, enriched housing program or residence for adults, as 27 defined in section two of the social services law, which has received an 28 official written notice from the department of health of: (A) the 29 proposed revocation, suspension or denial of its operating certificate; 30 (B) the limitation of its operating certificate with respect to new 31 admissions; (C) the issuance of a department of health order or commis- 32 sioner of health's order or the seeking of equitable relief pursuant to 33 section four hundred sixty-d of the social services law; (D) the 34 proposed assessment of civil penalties for violations of the provisions 35 of [subparagraph two of] paragraph [(b)] (c) of subdivision seven of 36 section four hundred sixty-d of the social services law; or placement on 37 the "do not refer list" pursuant to subdivision fifteen of section four 38 hundred sixty-d of the social services law. Referrals may resume when 39 such enforcement actions are resolved. 40 § 13. Severability clause. If any provision of this act, or any appli- 41 cation of any provision of this act, is held to be invalid, or to 42 violate or be inconsistent with any federal law or regulation, that 43 shall not affect the validity or effectiveness of any other provision of 44 this act, which can be given effect without that provision or applica- 45 tion; and to that end, the provisions and applications of this act are 46 severable. 47 § 14. This act shall take effect on the ninetieth day after it shall 48 have become a law. Effective immediately, the commissioner of health 49 shall make regulations and take other actions necessary to implement 50 this act on that date.
