NY State Senate Bill 2009-S7844

Archive: Last Bill Status - In Senate Committee Aging Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 25, 2010	print number 7844a
May 25, 2010	amend and recommit to aging
May 17, 2010	referred to aging

Bill Amendments

Original

A (Active)

2009-S7844 - Details

Current Committee:: Senate Aging
Law Section:: Social Services Law
Laws Affected:: Amd §460-d, Soc Serv L

2009-S7844 - Summary

Relates to rebuttable presumption for facilities providing services to persons over age sixty-five as senior living facilities, application requirements for licensure and documentary evidence necessary to rebut presumption of senior living facility.

2009-S7844 - Sponsor Memo

                                 BILL NUMBER:  S7844

 TITLE OF BILL :  An act to amend the social services law, in relation
to the licensure of senior living facilities

 PURPOSE : This bill will require unlicensed senior living facilities
to either apply for licensure or submit documentary proof
demonstrating that they are in fact operating as an independent living
facility

 SUMMARY OF PROVISIONS :  Section one of the bill would amend Social
Services Law § 460-d(9) to require unlicensed senior living facilities
to either apply for licensure or submit documentary proof to the
Department of Health demonstrating that they are in fact operating as
an independent living facility. The bill would create a rebuttable
presumption that any unlicensed senior living facility must apply for
licensure if it is providing certain services or care to its
residents, and at least 50% of the residents are receiving assistance
from aides or companions. Any facility meeting this criteria would be
required to come forward with either: (1) a complete application to
the Department to operate as an adult care facility; or (2)
documentary proof to rebut the presumption and demonstrate that the
facility is in fact operating as an independent living facility.

Section two provides that the bill would take effect 90 days after
being signed into law.

 EXISTING LAW :  Current law requires an unlicensed senior living
facility to apply for licensure as an adult care facility if it
provides "residential care and services" to seniors who are unable to
live independently (Social Services Law § 2{21}). In addition, a
facility must apply for licensure as an assisted living facility if it
advertises or markets itself to the public as assisted living (Public
Health Law § 4656{1}).

 LEGISLATIVE HISTORY : This is a new bill.

 STATEMENT IN SUPPORT :  The licensed adult care and assisted living
industry is one of the most heavily regulated in the State. The
industry is subject to the two separate licensing structures,
voluminous regulatory requirements and broad oversight by the
Department of Health. Licensed facilities that do not meet State
requirements are subject to stiff fines and the possibility of
closure.

However, some senior living facilities - known in the industry as
"lookalike" facilities -have found ways to skirt the law and avoid any
licensure or oversight. As a result, these "lookalike" facilities are
completely unregulated and the senior residents in these buildings do
not have any of the basic protections in current law.

This bill would help protect seniors in "lookalike" facilities by
making it more difficult to skirt the law and avoid licensure. The
bill would put the burden of proof on "lookalike" facilities to come
forward and either: (1) submit a license application; or (2) submit
documentary proof that they are truly operating as an independent
living facility.

The bill would not change the current rules for whether a facility
needs to apply for a licensure. Instead, the bill would create a new
mechanism to force those who are skirting current law to step forward
and comply.

 BUDGET IMPLICATIONS : None.


 EFFECTIVE DATE : This bill would take effect ninety days after
becoming law.

2009-S7844 - Bill Text download pdf

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

                                  7844

                            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

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
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

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

                                                           LBD17364-02-0

S. 7844                             2

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:
(1) TWO OR MORE MEALS PER DAY; (2) CONGREGATE SOCIAL FUNCTIONS; (3) CASE
MANAGEMENT SERVICES; OR (4) SUPERVISION, WHICH SHALL INCLUDE, BUT NOT BE
LIMITED TO, MAINTAINING GENERAL KNOWLEDGE OF  THE  WHEREABOUTS  OF  EACH
RESIDENT,  MONITORING  RESIDENTS  TO  IDENTIFY  CHANGES  IN  BEHAVIOR OR
APPEARANCE, MONITORING ATTENDANCE AT MEALS AND MAINTENANCE OF  APPROPRI-
ATE 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
AS 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:
  (1) 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;
  (2) 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;
  (3) 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;
  (4) DETAILED NON-PERSONALLY IDENTIFIABLE INFORMATION FOR EACH INDIVID-
UAL 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:
  (A) A DETAILED DESCRIPTION OF THE SPECIFIC SERVICES  PROVIDED  TO  THE
INDIVIDUAL  RESIDENT  BY  THE  HOME  CARE  AGENCY,  PRIVATE DUTY AIDE OR
COMPANION, WHICH THE OPERATOR, OWNER OR PRIME LESSOR SHALL REQUEST  FROM
THE  AGENCY, AIDE OR COMPANION IF NECESSARY; PROVIDED, HOWEVER, THAT THE

S. 7844                             3

AGENCY, AIDE OR COMPANION MAY ELECT TO PROVIDE SUCH INFORMATION DIRECTLY
TO THE DEPARTMENT;
  (B)  A  DETAILED  DESCRIPTION OF THE SPECIFIC SERVICES PROVIDED TO THE
INDIVIDUAL RESIDENT BY THE FACILITY;
  (C) A DESCRIPTION OF ANY AND ALL INTERACTION OR  COORDINATION  BETWEEN
THE  FACILITY  STAFF AND THE HOME CARE AGENCY STAFF, PRIVATE DUTY AID OR
COMPANION;
  (5) A STAFFING SCHEDULE FOR THE FACILITY,  INCLUDING  TITLES  AND  JOB
DESCRIPTIONS FOR EACH STAFFER; AND
  (6)  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 THAT THE FACILITY IS
OR IS NOT AN ADULT CARE FACILITY UNDER THIS ARTICLE; PROVIDED,  HOWEVER,
THAT  THE  OPERATOR, OWNER OR PRIME LESSOR SHALL BE AFFORDED AN OPPORTU-
NITY TO BE HEARD AT AN EXPEDITED HEARING TO BE HELD WITHIN  THIRTY  (30)
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
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.

S. 7844                             4

  [(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.

co-Sponsors

2009-S7844A (ACTIVE) - Details

Current Committee:: Senate Aging
Law Section:: Social Services Law
Laws Affected:: Amd §460-d, Soc Serv L

2009-S7844A (ACTIVE) - Summary

2009-S7844A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7844A

TITLE OF BILL:
An act
to amend the social services law, in relation to the licensure of
senior living facilities

PURPOSE:
This bill will require unlicensed senior living facilities to
either apply for licensure or submit documentary proof demonstrating
that they are in fact operating as an independent living facility

SUMMARY OF PROVISIONS:
Section one of the bill would amend Social Services Law § 460-d(9) to
require unlicensed senior living facilities to either apply for
licensure or submit documentary proof to the Department of Health
demonstrating that they are in fact operating as an independent
living facility. The bill would create a rebuttable presumption that
any unlicensed senior living facility must apply for licensure if it
is providing certain services or care to its residents, and at least
50% of the residents are receiving assistance from aides or
companions. Any facility meeting this criteria would be required to
come forward with either: (1) a complete application to the
Department to operate as an adult care facility; or (2) documentary
proof to rebut the presumption and demonstrate that the facility is
in fact operating as an independent living facility.

Section two provides that the bill would take effect 90 days after
being signed into law.

EXISTING LAW:
Current law requires an unlicensed senior living facility to apply for
licensure as an adult care facility if it provides "residential care
and services" to seniors who are unable to live independently (Social
Services Law § 2(21)). In addition, a facility must apply for
licensure as an assisted living facility if it advertises or markets
itself to the public as assisted living (Public Health Law § 4656(1)).

LEGISLATIVE HISTORY:
This is a new bill.

STATEMENT IN SUPPORT:
The licensed adult care and assisted living industry is one of the
most heavily regulated in the State. The industry is subject to the
two separate licensing structures, voluminous regulatory requirements
and broad oversight by the Department of Health. Licensed facilities
that do not meet State requirements are subject to stiff fines and
the possibility of closure.

However, some senior living facilities - known in the industry as
"lookalike" facilities -have found ways to skirt the law and avoid
any licensure or oversight. As a result, these
"lookalike" facilities are completely unregulated and the senior
residents in these buildings do not have any of the basic protections
in current law.


This bill would help protect seniors in "lookalike" facilities by
making it more difficult to skirt the law and avoid licensure. The
bill would put the burden of proof on "lookalike" facilities to come
forward and either: (1) submit a license application; or (2) submit
documentary proof that they are truly operating as an independent
living facility.

The bill would not change the current rules for whether a facility
needs to apply for a licensure. Instead, the bill would create a new
mechanism to force those who are skirting current law to step forward
and comply.

BUDGET IMPLICATIONS:
None.

EFFECTIVE DATE:
This bill would take effect ninety days after becoming law.

2009-S7844A (ACTIVE) - Bill Text download pdf

                            
                    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.

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Senate Bill S7844

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Sponsored By

Carl Kruger

Archive: Last Bill Status - In Senate Committee Aging Committee

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George D. Maziarz

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