senate Bill S6278

Relates to penalties for violations relating to residential care programs for adults

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 19 / Jan / 2012
    • REFERRED TO SOCIAL SERVICES
  • 22 / May / 2012
    • REPORTED AND COMMITTED TO FINANCE

Summary

Relates to increasing penalties for violations relating to residential care programs for adults and children; and amends provisions relating to determination of violations.

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Bill Details

See Assembly Version of this Bill:
A8862
Versions:
S6278
Legislative Cycle:
2011-2012
Current Committee:
Senate Finance
Law Section:
Social Services Law
Laws Affected:
Amd ยง460-d, Soc Serv L
Versions Introduced in 2011-2012 Legislative Cycle:
A8862

Votes

5
0
5
Aye
0
Nay
0
aye with reservations
0
absent
1
excused
0
abstained
show Social Services committee vote details
excused (1)

Sponsor Memo

BILL NUMBER:S6278

TITLE OF BILL:
An act
to amend the social services law, in relation to penalties for
violations relating to residential care programs for adults

PURPOSE:
Strengthen the enforcement powers of the Department of Health
and distinguish violations that endanger residents from those that
do not.

SUMMARY OF SPECIFIC PROVISIONS:
Amends Social Services Law section
460-d to increase
potential penalties from $1,000 per day to $5,000 per violation per day.

Rectification within 30 days will no longer mitigate a penalty for
violations that endanger residents or have caused harm.

Categories of violations that fall short of endangerment or injury are
enumerated.

JUSTIFICATION:
Assisted living residence and adult homes are the
fastest growing form of senior housing in New York State. Currently,
the Department of Health is permitted to waive penalties if a
facility corrects a deficiency within 30 days, or submits a plan to
do so. This bill requires DOH to levy a fine, after a hearing, for
any violation that endangers a resident under the law's definition
and permits DOH to consider levying a fine for any other violation
whether a facility corrects it within a month or not.

The bill also permits DOH to levy a "per violation" fine in addition
to the current law permitting "per day" fines. This will allow DOH to
levy, after a hearing, a higher fine for a serious violation that may
have taken place only once.

The maximum penalty per day has not been raised since the law's
inception in 1977. While $1,000 may have been a significant figure at
the time, it may now be considered by some facilities as the "cost of
doing business." Compared to the $10,000 maximum per day that DOH may
fine nursing homes, $5000 is an appropriate deterrent.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
No costs to the state, some potential for savings.

EFFECTIVE DATE:
Ninety days after becoming law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6278

                            I N  S E N A T E

                            January 19, 2012
                               ___________

Introduced  by Sen. GRISANTI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Social Services

AN ACT to amend the social services law, in relation  to  penalties  for
  violations relating to residential care programs for adults

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 7 and paragraphs (a) and (b) of  subdivision  9
of  section 460-d of the social services law, subdivision 7  as added by
chapter 669 of the laws of 1977,  paragraph  (a)  of  subdivision  7  as
amended by chapter 719 of the laws of 1989, paragraph (b) of subdivision
7 as amended by chapter 524 of the laws of 1984, subparagraph 2 of para-
graph  (b)  of  subdivision  7  as amended by chapter 733 of the laws of
1994, paragraph (a) of subdivision 9 as amended by chapter  558  of  the
laws  of 1999 and paragraph (b) of subdivision 9 as added by chapter 848
of the laws of 1992, are amended to read as follows:
  7. (a) The  department  shall  adopt  regulations  establishing  civil
penalties  of up to [one] FIVE thousand dollars PER VIOLATION per day to
be assessed against all adult care facilities except facilities operated
by a social services district for violations of (i) regulations  of  the
department  pertaining to the care of residents in such facilities, (ii)
paragraph (a) of subdivision three of section four  hundred  sixty-one-a
of this [chapter] ARTICLE, or (iii) an order issued pursuant to subdivi-
sion eight of this section. The regulations shall specify the violations
subject  to  penalty  and  the  amount  of the penalty to be assessed in
connection with each such violation and shall specify  that  only  civil
penalties  of  up  to  [one] FIVE thousand dollars PER VIOLATION per day
[per violation] shall be assessed pursuant to this paragraph against  an
adult  care  facility  found  responsible  for  an act of retaliation or
reprisal against any resident, employee,  or  other  person  for  having
filed  a  complaint with or having provided information to any long term
care [patient] ombudsman functioning in accordance  with  section  [five
hundred  forty-four  or five hundred forty-five] TWO HUNDRED EIGHTEEN of
the [executive] ELDER law.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13829-02-2

S. 6278                             2

  (b) [(1)] In addition to any other civil or criminal penalty  provided
by law, the department shall have the power to assess civil penalties in
accordance  with  its  regulations  adopted pursuant to paragraph (a) of
this subdivision, after a  hearing  conducted  in  accordance  with  the
procedures established by regulations of the department. Such procedures
shall require that notice of the time and place of the hearing, together
with  a statement of charges of violations, shall be served in person or
by certified mail addressed to the facility at least thirty  days  prior
to the date of the hearing. The statement of charges of violations shall
set  forth  the  existence  of the violations, the amount of penalty for
which it may become liable and the steps which must be taken to  rectify
the  violation  and,  where  applicable, a statement that the department
contends that a penalty may be imposed under this  paragraph  regardless
of  rectification.  An  answer to the charges of violations, in writing,
shall be filed with the department, not less than ten days prior to  the
date  of  hearing. The answer shall notify the department of the facili-
ty's position with respect to each of the charges and shall include  all
matters which if not disclosed in the answer would be likely to take the
department  by  surprise. The commissioner, or a member of his staff who
is designated and authorized by him to hold such  hearing,  may  in  his
discretion  allow  the  facility to prove any matter not included in the
answer.
  (C) Where the facility satisfactorily demonstrates that it either  had
rectified the violations within thirty days of receiving CERTIFIED writ-
ten  notification  of  the results of the inspection pursuant to section
four hundred sixty-one-a of this [chapter]  ARTICLE,  or  had  submitted
within thirty days an acceptable plan for rectification and was rectify-
ing  the  violations  in  accordance with the steps and within the addi-
tional periods of time as accepted by the department in such plan,  [no]
THE  DEPARTMENT  MAY DETERMINE THAT THE penalty UNDER THIS SECTION shall
be REDUCED FROM WHAT OTHERWISE WOULD BE imposed[, except as provided  in
subparagraph two of this paragraph.
  (2)  Rectification  shall  not preclude the assessment of a penalty if
the department establishes at a hearing that] OR  WAIVED.  IN  MAKING  A
DETERMINATION UNDER THIS PARAGRAPH, THE DEPARTMENT SHALL CONSIDER:
  (I)  WHETHER  a particular violation[, although corrected,] endangered
or resulted in harm to any resident [as the result of:
  (i)], IN WHICH CASE THE PENALTY SHALL NOT BE REDUCED OR WAIVED. ENDAN-
GERMENT IS DEFINED AS:
  (A) the total or substantial failure of the facility's fire  detection
or  prevention systems, or emergency evacuation procedures prescribed by
department safety standard regulations;
  [(ii)] (B) the retention of any resident who has been evaluated by the
resident's physician as being medically or mentally unsuited for care in
the facility or as requiring placement  in  a  hospital  or  residential
health  care facility and for whom the operator is not making persistent
efforts to secure appropriate placement;
  [(iii)] (C) the failure in systemic practices and procedures;
  [(iv)] (D) the failure of the operator to take actions as required  by
department regulations in the event of a resident's illness or accident;
  [(v)]  (E)  the failure of the operator to provide at all times super-
vision of residents by numbers of staff at least equivalent to the night
staffing requirement set forth in department regulations; or
  [(vi)] (F) unreasonable threats of retaliation  or  taking  reprisals,
including  but not limited to unreasonable threats of eviction or hospi-
talization against any resident, employee or other person  who  makes  a

S. 6278                             3

complaint  concerning  the  operation of an adult care facility, partic-
ipates in the investigation of a complaint  or  is  the  subject  of  an
action identified in a complaint.
  The  department  shall  specify in its regulations those [regulations]
VIOLATIONS to which this [subparagraph two] PARAGRAPH shall apply[.
  (3) In assessing penalties pursuant to this paragraph, the  department
shall consider promptness];
  (II) WHETHER A PARTICULAR VIOLATION IS ONE OF THE FOLLOWING:
  (A)  A  VIOLATION  WHEREIN  HARM,  SHORT OF ENDANGERMENT AS DEFINED IN
SUBPARAGRAPH (I) OF THIS PARAGRAPH, WAS ACTUALLY COMMITTED;
  (B) A VIOLATION WHEREIN A RESIDENT OR RESIDENTS WERE PUT  AT  RISK  OF
HARM; OR
  (C)  A VIOLATION WHEREIN A RESIDENT WAS NEITHER HARMED NOR PUT AT RISK
OF HARM;
  (III) THE FACILITY'S HISTORY OF PROVIDING  QUALITY  CARE,  VIOLATIONS;
AND
  (IV)  PROMPTNESS of rectification, delay occasioned by the department,
and the specific circumstances of the violations as mitigating factors.
  [(c)] (D) Upon the request of the department, the attorney general may
commence an action in any court of competent  jurisdiction  against  any
facility  subject  to  the  provisions  of this section, and against any
person or corporation operating such facility, for the recovery  of  any
penalty  assessed by the department in accordance with the provisions of
this subdivision.
  [(d)] (E) Any such penalty assessed by the department may be  released
or  compromised by the department before the matter has been referred to
the attorney general, and where such matter has  been  referred  to  the
attorney  general,  any  such penalty may be released or compromised and
any action commenced to recover the same may be settled and discontinued
by the attorney general with the consent of the department.
  (a) The department shall have authority to impose a civil penalty  not
exceeding [one] FIVE thousand dollars PER VIOLATION per day against, and
to issue an order requiring the closing of, after notice and opportunity
to  be  heard,  any  facility  which  does not possess a valid operating
certificate issued by the department  and  is  an  adult  care  facility
subject  to  the  provisions  of this article and the regulations of the
department. A hearing shall be conducted in accordance  with  procedures
established  by  department  regulations  which procedures shall require
that notice of the determination that the  facility  is  an  adult  care
facility  and  the reasons for such determination and notice of the time
and place of the hearing be served in person on the operator,  owner  or
prime  lessor,  if  any, or by certified mail, return receipt requested,
addressed to such person and received at least twenty days prior to  the
date of the hearing. If such operator, owner or prime lessor, if any, is
not  known to the department, then service may be made by posting a copy
thereof in a conspicuous place within the facility or by sending a  copy
thereof  by  certified  mail, return receipt requested, addressed to the
facility. A written answer to the notice of violation may be filed  with
the department not less than five days prior to the date of the hearing.
Demonstration by the facility that it possessed an operating certificate
issued  pursuant  to  this  article,  article twenty-eight of the public
health law or article sixteen, [twenty-three,] thirty-one or  thirty-two
of  the  mental  hygiene law at the time the hearing was commenced shall
constitute a complete defense to  any  charges  made  pursuant  to  this
subdivision.

S. 6278                             4

  (b)  [The penalty authorized by this section shall begin to run thirty
days after the department provides the  operator,  in  writing,  with  a
summary of the inspection of the facility by which the department deter-
mined  that  he or she is operating an uncertified adult care facility.]
The  submission  of  an  application  by  the  operator for an operating
certificate for the facility shall not act as a bar to the imposition of
a penalty against the operator OF AN UNLICENSED ADULT CARE FACILITY.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have  become  a  law;  provided  that any rules and regulations, and any
other actions necessary to implement the provisions of this act  on  its
effective  date are authorized and directed to be completed on or before
such date.

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