S T A T E   O F   N E W   Y O R K
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                                  1721

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             January 9, 2009
                               ___________

Introduced by M. of A. GOTTFRIED, CLARK, DINOWITZ, ORTIZ, TITUS, EDDING-
  TON,  ENGLEBRIGHT,  PAULIN,  GREENE  -- Multi-Sponsored by -- M. of A.
  AUBRY, BRADLEY, BRENNAN,  CAHILL,  COLTON,  GUNTHER,  HOOPER,  JACOBS,
  JAFFEE,  JOHN,  KOON,  LIFTON,  McENENY, PHEFFER, P. RIVERA, ROBINSON,
  SWEENEY, TOWNS, WEISENBERG, WRIGHT -- read once and  referred  to  the
  Committee on Health

AN  ACT  to amend the public health law, in relation to establishing the
  nursing home diversion program

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

  Section 1. Legislative findings and intent. The legislature finds that
in many New York state nursing homes, residents are not getting adequate
or proper care.
  Adequate direct nursing care is especially important to the health and
safety  of  nursing  home residents.   A recent congressionally-mandated
study by centers for medicare and medicaid services  concluded  that  if
nursing  home residents receive less than three hours a day per resident
of direct nursing care, they are "substantially at risk of quality prob-
lems."
  If a nursing home is not providing its residents adequate  and  proper
food,  bedding,  heating,  cooling,  or nursing care, it is dangerous to
place additional residents in that nursing home.
  Therefore, the legislature  establishes  the  nursing  home  diversion
program, to provide that in the event that a nursing home is not provid-
ing  its  residents adequate and proper food, bedding, heating, cooling,
or nursing care, it shall not admit  new  residents  until  it  provides
adequate and proper care.
  S  2.  The public health law is amended by adding a new section 2807-z
to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00979-01-9

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  S 2807-Z. NURSING HOME DIVERSION. 1.   DEFINITIONS. AS  USED  IN  THIS
SECTION,  UNLESS  THE  CONTEXT CLEARLY REQUIRES OTHERWISE, THE FOLLOWING
TERMS HAVE THE FOLLOWING MEANINGS:
  (A)  "BASIC  STANDARD  OF CARE" MEANS ANY OF THE STANDARDS OF CARE SET
OUT IN SUBDIVISION FIVE OF THIS SECTION.
  (B) "ON DIVERSION" MEANS THE STATE OF BEING SUBJECT  TO  NURSING  HOME
DIVERSION AND REQUIRED TO SUSPEND ADMISSIONS UNDER THIS SECTION.
  2.  WHEN  TO  PLACE  ON DIVERSION. (A) WHEREVER A NURSING HOME HAS NOT
BEEN PROVIDING ONE OF THE BASIC STANDARDS OF CARE FOR  A  PERIOD  OF  AT
LEAST  FORTY-EIGHT CONSECUTIVE HOURS, IT SHALL IMMEDIATELY BE SUBJECT TO
NURSING HOME DIVERSION AND SHALL IMMEDIATELY NOTIFY  THE  DEPARTMENT  OF
THAT FACT AND THE REASONS FOR IT.
  (B)  WHENEVER  THE  DEPARTMENT  DETERMINES THAT A NURSING HOME HAS NOT
BEEN PROVIDING ONE OF THE BASIC STANDARDS OF CARE FOR  A  PERIOD  OF  AT
LEAST  FORTY-EIGHT CONSECUTIVE HOURS, THE NURSING HOME SHALL IMMEDIATELY
BE SUBJECT TO NURSING HOME DIVERSION AND THE DEPARTMENT SHALL IMMEDIATE-
LY NOTIFY THE NURSING HOME OF THAT FACT AND THE REASONS FOR IT.
  3. DIVERSION; CONSEQUENCES. (A) WHEN A NURSING HOME IS  ON  DIVERSION,
IT  SHALL  NOT ADMIT ANY ADDITIONAL PERSONS AS A RESIDENT OF THE NURSING
HOME.  HOWEVER, A PERSON WHO HAS BEEN A RESIDENT OF THE NURSING HOME BUT
HAS BEEN TEMPORARILY ABSENT FROM THE NURSING HOME MAY BE RE-ADMITTED  TO
THE NURSING HOME EVEN WHEN IT IS ON DIVERSION.
  (B)  THE DEPARTMENT SHALL IMMEDIATELY NOTIFY APPROPRIATE HOSPITALS AND
NURSING HOMES THAT THE NURSING HOME IS ON DIVERSION, AND SHALL  PLACE  A
NOTICE  ON  ITS  WEBSITE  THAT THE NURSING HOME IS ON DIVERSION. WHILE A
NURSING HOME IS ON DIVERSION, IT SHALL NOTIFY ANY  PERSON  OR  REPRESEN-
TATIVE  OF  A  PERSON WHO APPLIES FOR ADMISSION THAT IT IS ON DIVERSION,
AND SHALL PLACE A CONSPICUOUS, EASILY-READABLE  NOTICE  THAT  IT  IS  ON
DIVERSION  WHERE  IT  WILL  BE  READILY SEEN BY RESIDENTS OF THE NURSING
HOME.
  4. TERMINATION OF DIVERSION. (A) A NURSING  HOME  ON  DIVERSION  SHALL
REMAIN  ON  DIVERSION UNTIL IT HAS RESUMED PROVIDING ALL BASIC STANDARDS
OF CARE FOR AT LEAST SIX CONSECUTIVE DAYS, AT WHICH TIME IT  MAY  NOTIFY
THE  DEPARTMENT  THAT  IT  IS  COMPLYING WITH THIS SUBDIVISION AND IS NO
LONGER ON DIVERSION. THE NURSING HOME MAY THEN  RESUME  ADMITTING  RESI-
DENTS.
  (B)  THE  DEPARTMENT  SHALL THEN IMMEDIATELY SO NOTIFY EVERY ENTITY IT
HAD NOTIFIED THAT THE NURSING HOME  WAS  ON  DIVERSION  AND  DELETE  THE
NOTICE  FROM THE DEPARTMENT'S WEBSITE. THE NURSING HOME SHALL REMOVE THE
NOTICE IT HAD POSTED THAT IT WAS ON DIVERSION.
  5. BASIC STANDARDS OF CARE. THE BASIC STANDARDS OF CARE  FOR  PURPOSES
OF  THIS SECTION ARE THE FOLLOWING, INCLUDING COMPLIANCE WITH DEPARTMENT
REGULATIONS RELATING TO THE FOLLOWING:
  (A) ADEQUATE QUANTITY AND QUALITY OF FOOD FOR EACH RESIDENT.
  (B) ONE BED FOR EACH RESIDENT, WITH APPROPRIATE BEDDING.
  (C) ADEQUATE HEATING AND COOLING OF ALL PARTS OF THE NURSING HOME.
  (D) ADEQUATE DIRECT CARE NURSING STAFF. THIS MEANS, FOR EACH  DAY,  AN
AVERAGE  OF  AT  LEAST  THREE HOURS OF DIRECT NURSING CARE PER RESIDENT,
INCLUDING AT LEAST ONE HOUR OF CARE BY A REGISTERED NURSE OR A  LICENSED
PRACTICAL  NURSE,  OF  WHICH  AT LEAST THIRTY MINUTES SHALL BE CARE BY A
REGISTERED NURSE.
  6. COMPLIANCE.   THE DEPARTMENT SHALL  MONITOR  COMPLIANCE  WITH  THIS
SECTION  THROUGH  AUDITS,  INSPECTIONS,  REQUIRED  REPORTING  BY NURSING
HOMES, AND OTHER APPROPRIATE MEANS.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall become a law, provided, however,  that  effective  immediately,

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the  addition,  amendment and/or repeal of any rule or regulation neces-
sary for the implementation of this act on its effective date is author-
ized and directed to be made and completed by the department  of  health
on or before such effective date.