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

                                 7844--A

                            I N  S E N A T E

                              May 17, 2010
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Aging  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the social services law, in relation to the licensure of
  senior living facilities

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

  Section 1. Subdivision 9 of section 460-d of the social services  law,
as added by chapter 704 of the laws of 1981, paragraph (a) as amended by
chapter  558  of the laws of 1999, paragraph (b) as added by chapter 848
of the laws of 1992 and subparagraph (i) of paragraph (c) as amended  by
chapter 515 of the laws of 1988, is amended to read as follows:
  9.  (a)  The department shall have authority to impose a civil penalty
not exceeding one thousand dollars 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 hear-
ing. 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  depart-
ment  not  less than five days prior to the date of the hearing.  Demon-
stration by the facility that  it  possessed  an  operating  certificate
issued  pursuant  to  this  article,  article twenty-eight of the public

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

                                                           LBD17364-04-0

S. 7844--A                          2

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.
  (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.
  (c)  THERE  SHALL  BE A REBUTTABLE PRESUMPTION THAT ANY FACILITY WHICH
ADVERTISES, MARKETS AND PROVIDES HOUSING AND OTHER SERVICES PRIMARILY TO
PERSONS OVER THE AGE OF SIXTY-FIVE IS AN ADULT CARE FACILITY UNDER  THIS
ARTICLE REQUIRING LICENSURE PURSUANT TO THIS ARTICLE IF:
  (I)  THE FACILITY OR ENTITY PROVIDES OR ARRANGES SERVICES IN A CONGRE-
GATE SETTING TO FIVE OR MORE ADULTS, INCLUDING ANY TWO OF THE FOLLOWING:
  (A) TWO OR MORE MEALS PER DAY,
  (B) CONGREGATE SOCIAL FUNCTIONS,
  (C) CASE MANAGEMENT SERVICES, OR
  (D) SUPERVISION (WHICH SHALL INCLUDE BUT NOT BE LIMITED TO MAINTAINING
GENERAL KNOWLEDGE OF THE WHEREABOUTS OF EACH RESIDENT, MONITORING  RESI-
DENTS  TO IDENTIFY CHANGES IN BEHAVIOR OR APPEARANCE, MONITORING ATTEND-
ANCE AT MEALS AND MAINTENANCE OF APPROPRIATE NUTRITIONAL INTAKE); AND
  (II) AT LEAST FIFTY PERCENT OF THE RESIDENTS  EMPLOY  OR  ENGAGE  HOME
CARE AIDES OR PRIVATE DUTY AIDES OR COMPANIONS.
  (D) IF A FACILITY MEETS THE REBUTTABLE PRESUMPTION CRITERIA PRESCRIBED
IN PARAGRAPH (C) OF THIS SUBDIVISION, IT SHALL PRESENT TO THE DEPARTMENT
EITHER:
  (I)  A COMPLETE APPLICATION TO THE DEPARTMENT FOR A LICENSE TO OPERATE
AN ADULT CARE FACILITY; OR
  (II) PROVIDE THE DEPARTMENT WITH DOCUMENTARY EVIDENCE, SUBMITTED UNDER
PENALTY OF PERJURY, TO REBUT THE PRESUMPTION AND  DEMONSTRATE  THAT  THE
FACILITY  DOES NOT REQUIRE AN ADULT CARE FACILITY LICENSE. SUCH DOCUMEN-
TARY EVIDENCE MUST INCLUDE, BUT NEED NOT BE LIMITED TO, THE FOLLOWING:
  (A) AFFIDAVIT BY THE OPERATOR, OWNER OR PRIME LESSOR THAT THE FACILITY
DOES NOT PROVIDE, ARRANGE FOR OR COORDINATE PERSONAL CARE OR SUPERVISION
FOR ITS RESIDENTS, TOGETHER WITH A COPY OF THE FACILITY'S STANDARD LEASE
OR RESIDENCY AGREEMENT AND ANY OTHER DOCUMENTS  OR  MATERIALS  GIVEN  TO
PROSPECTIVE  RESIDENTS  OR  RESIDENTS DESCRIBING THE SERVICES OFFERED BY
THE FACILITY;
  (B) AFFIDAVIT BY THE OPERATOR, OWNER OR PRIME LESSOR THAT THE FACILITY
DOES NOT ADVERTISE OR MARKET TO THE PUBLIC AS ASSISTED LIVING, ASSISTIVE
LIVING OR ANY SIMILAR TERM, TOGETHER WITH A COPY OF ALL FACILITY MARKET-
ING MATERIALS AND ADVERTISEMENTS;
  (C) AFFIDAVIT BY THE OPERATOR, OWNER OR PRIME LESSOR THAT THE FACILITY
AND THE HOME CARE AGENCIES  PROVIDING  SERVICES  TO  RESIDENTS  ARE  NOT
COMMONLY  OWNED OR OTHERWISE SUBJECT TO THE CONTROL OF ONE OR MORE ENTI-
TIES OR PRINCIPALS AND/OR DO NOT WORK TOGETHER TO  PROVIDE,  ARRANGE  OR
COORDINATE SUCH SERVICES TO RESIDENTS;
  (D)  AFFIDAVIT  BY  THE  OPERATOR,  OWNER  OR  PRIME  LESSOR PROVIDING
DETAILED NON-PERSONALLY IDENTIFIABLE INFORMATION IN  THE  POSSESSION  OF
THE FACILITY FOR EACH INDIVIDUAL RESIDENT RECEIVING SERVICES FROM A HOME
CARE  AGENCY,  PRIVATE DUTY AIDE OR COMPANION. SUCH INFORMATION SHALL BE
UPDATED MONTHLY UNTIL A FINAL DETERMINATION IS MADE  BY  THE  DEPARTMENT
AND SHALL INCLUDE:

S. 7844--A                          3

  (AA)  A  DETAILED DESCRIPTION OF THE SPECIFIC SERVICES PROVIDED TO THE
INDIVIDUAL RESIDENT BY THE  HOME  CARE  AGENCY,  PRIVATE  DUTY  AIDE  OR
COMPANION  TO  THE EXTENT THE FACILITY IS IN POSSESSION OF SUCH INFORMA-
TION; PROVIDED NOTHING HEREIN SHALL  REQUIRE  THE  RESIDENT,  HOME  CARE
AGENCY,  PRIVATE  DUTY  AIDE OR COMPANION TO DISCLOSE INFORMATION TO THE
FACILITY NOT OTHERWISE IN ITS POSSESSION;
  (BB) A DETAILED DESCRIPTION OF THE SPECIFIC SERVICES PROVIDED  TO  THE
INDIVIDUAL RESIDENT BY THE FACILITY;
  (CC)  A DESCRIPTION OF ANY AND ALL INTERACTION OR COORDINATION BETWEEN
THE FACILITY STAFF AND THE HOME CARE AGENCY STAFF, PRIVATE DUTY AIDE  OR
COMPANION;
  (E)  A  STAFFING  SCHEDULE  FOR THE FACILITY, INCLUDING TITLES AND JOB
DESCRIPTIONS FOR EACH STAFFER; AND
  (F) SUCH OTHER INFORMATION AS MAY BE RELEVANT TO WHETHER THE  FACILITY
REQUIRES A LICENSE AS AN ADULT CARE FACILITY.
  (E) IF, AFTER RECEIPT OF THE INFORMATION PROVIDED BY SUBPARAGRAPH (II)
OF  PARAGRAPH  (D) OF THIS SUBDIVISION, THE DEPARTMENT DETERMINES THAT A
FACILITY IS PROVIDING SERVICES  REQUIRING  LICENSURE  PURSUANT  TO  THIS
ARTICLE,  THE  FACILITY SHALL, WITHIN SIXTY DAYS OF SUCH FINDING, SUBMIT
AN APPLICATION FOR LICENSURE PURSUANT TO THIS ARTICLE.
  (F) AFTER NOTICE BY THE DEPARTMENT THAT THE DEPARTMENT HAS  REASON  TO
PRESUME  A FACILITY IS AN ADULT CARE FACILITY UNDER THIS ARTICLE, IF THE
OPERATOR, OWNER OR PRIME LESSOR FAILS TO SUBMIT THE DOCUMENTARY EVIDENCE
PURSUANT TO PARAGRAPH (D) OF THIS SUBDIVISION, OR  FAILS  TO  SUBMIT  AN
APPLICATION FOR LICENSURE PURSUANT TO PARAGRAPH (E) OF THIS SUBDIVISION,
THEN  THE  DEPARTMENT  MAY, IN ADDITION TO ASSESSING CIVIL PENALTIES AND
EXERCISING INJUNCTIVE RELIEF PURSUANT TO SECTION TWELVE  OF  THE  PUBLIC
HEALTH  LAW,  IMMEDIATELY  ISSUE  AN ORDER OR NOTICE TO CEASE AND DESIST
ADVERTISEMENT, MARKETING, AND ADMISSION OF NEW RESIDENTS AGED SIXTY-FIVE
AND OVER, UNTIL IT IS DETERMINED BY THE DEPARTMENT WHETHER THE  FACILITY
IS OR IS NOT AN ADULT CARE FACILITY UNDER THIS ARTICLE; PROVIDED, HOWEV-
ER, THAT THE OPERATOR, OWNER OR PRIME LESSOR SHALL BE AFFORDED AN OPPOR-
TUNITY TO BE HEARD AT AN EXPEDITED HEARING TO BE HELD WITHIN THIRTY DAYS
OF THE ISSUANCE OF THE ORDER OR NOTICE.
  (G)  (i) For the purposes of assessing the applicability of this arti-
cle and the regulations of  the  department,  the  department  shall  be
authorized  to  inspect  any  facility  which  reasonably appears to the
department to be subject to the provisions of this article and to assess
the needs of the residents of such facility pursuant to  the  provisions
of section four hundred sixty-c of this title.
  (ii)  At  the  time that a representative of the department appears at
the facility for purposes of conducting such inspection,  the  represen-
tative  shall  inform  the  operator,  administrator  or other person in
charge that the inspection will be conducted unless such person  objects
to  the  inspection  and that if such person does object the department,
pursuant to the provisions of  subparagraph  (iii)  of  this  paragraph,
shall  be  authorized  to  request  the attorney general to apply to the
court for an order granting the department access to the facility.
  (iii) If the department is not permitted access to  such  facility  by
the  operator,  administrator  or  other  person  in charge thereof, the
attorney general, upon the request of the department, shall  be  author-
ized to apply, without notice to the operator, administrator or chairman
of  the  board of directors of a not-for-profit facility, to the supreme
court in the county in which the facility is located for an order grant-
ing the department access to such facility. The court may grant such  an
order  if  it  determines,  based  on evidence presented by the attorney

S. 7844--A                          4

general, that there is reasonable cause to believe that such facility is
an adult care facility which does not possess a valid operating  certif-
icate issued by the department.
  [(d)] (H) 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 subdivision, 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.
  [(e)]  (I)  Any  penalty  assessed  by the department pursuant to this
subdivision 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.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.