| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Jan 06, 2010 |
referred to health |
| Jun 02, 2009 |
reported and committed to codes |
| May 13, 2009 |
committee discharged and committed to health |
| Mar 16, 2009 |
referred to social services |
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Senate Bill S3297
2009-2010 Legislative Session
Relates to the appointment of a temporary operator or voluntary receiver of adult care facilities, death and felony crime reports
download bill text pdfSponsored By
(D, WF) Senate District
Archive: Last Bill Status - In Senate Committee Health 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
Actions
co-Sponsors
(D, WF) 28th Senate District
(D) Senate District
(D, WF) Senate District
2009-S3297 (ACTIVE) - Details
- Current Committee:
- Senate Health
- Law Section:
- Social Services Law
- Laws Affected:
- Amd §§460-d, 461-f, 461-m, 461-d, 2, 461-a & 461-b, Soc Serv L; amd §91-f, St Fin L; amd §29.15, Ment Hyg L; amd §§4651 & 4655, Pub Health L; amd §1, Chap 462 of 1996
2009-S3297 (ACTIVE) - Sponsor Memo
BILL NUMBER: S3297
TITLE OF BILL :
An act to amend the social services law, the state finance law, the
mental hygiene law, the public health law and chapter 462 of the laws
of 1996, relating to establishing a quality incentive payment program
for adult homes, in relation to the appointment of a temporary
operator or voluntary receiver of adult care facilities, death and
felony crime reports, ban on admissions and approval of applications
for establishment of adult care facilities
PURPOSE :
This bill will improve the health, safety and quality of life of New
York residents living in adult care facilities.
SUMMARY OF PROVISIONS :
Section 1 of the bill adds a new Social Services Law (SSL) §
460-d(7)(e) to authorize the Department of Health (DOH) to assess a
penalty if DOH establishes that a particular violation found at an
adult care facility, although corrected, was a violation cited at the
previous facility inspection.
Section 2 of the bill amends SSL § 460-d(4)(b) to authorize a hearing
officer to extend a pre-hearing suspension or limitation of an adult care facility's operating certificate, currently authorized for no more than 60 days if there is a finding of imminent danger to the public health or a resident's health, safety or welfare, for an additional period of time if DOH has made reasonable efforts to commence and complete a hearing. Section 2 of the bill amends SSL § 460-c1(4)(c) to provide that if an order or determination to suspend an operating certificate includes a condition that a temporary operator be appointed, the temporary operator would be entitled to the same powers and protections afforded to a receiver under SSL § 461-f(4). Sections 3 and 4 of the bill amend SSL §§ 460-d(11) and (12) to add adult care facilities to the list of entities that: (1) must be notified when DOH issues notice of the proposed revocation, suspension or limitation of an adult care facility's operating certificate or the proposed placement of a facility on the "Do Not Refer" list, and (2) may not make referrals to the facility that is the subject of such notice. Section 5 of the bill amends SSL § 461-f(1) to require that a receiver appointed by a court to operate an adult care facility be made a party to any agreement extending the period of time when the receiver will continue operating the facility. The bill also permits such receiverships to be continued for such period of time as is agreed upon by the parties. Section 6 of the bill amends SSL §§ 461-f(2) to provide that in the case of a voluntary receivership, the receiver must be made a party to an agreement to extend the receivership, and the receivership will terminate as agreed by the parties. Section 7 of the bill amends SS L . 461-m to include enriched housing programs among the adult care facilities that must: (1) report any death or attempted suicide of a resident to DOH within 24 hours; (2) report felonies believed to have been committed against residents to appropriate law enforcement authorities; and (3) report deaths, attempted suicides and felonies involving residents who at any time received mental hygiene services to the Commission on Quality of Care and Advocacy for Persons with Disabilities (CQCAPD). The bill also amends the time for reporting of felonies to law enforcement, so that a report is made as soon as possible but in any event within 24 hours of when it is believed that a felony was perpetrated against a resident. Finally, the bill replaces a reference to CQCAPD's former name, and requires that reporting to CQCAPD be made within 24 hours of the event in question. Section 8 of the bill adds a new SSL § 460-d(17) to provide that when DOH issues official written notice of a proposed enforcement action specified in SSL § 460-d(11) and determines there is a condition that constitutes an imminent danger to the health, safety or welfare of any resident, DOH may prohibit the operator from admitting any new residents until DOH is satisfied that the imminent danger no longer exists. Section 9 of the bill adds new SSL §§ 2(38) and (39) to authorize residents of an adult home, enriched housing program or residence for adults to designate a resident representative and a legal representative. Section 10 of the bill adds new SSL §§ 461-d(3)(l),(m) and (n) to set forth additional rights of each resident of an adult care facility: (1) to choose his or her own health care providers for services not covered by the admission agreement; (2) to be fully informed by the primary care physician or mental health provider of his or her medical condition, proposed medications, treatment and services and the right to refuse such medication, treatment or services after being fully informed of the consequences; and (3) to choose his or her own legal representative. Section 11 of the bill amends SSL § 461-d(3) to provide that the rights of residents set forth in that subdivision cannot be waived by legal representatives or resident representatives. Section 12 of the bill amends State Finance Law § 91-f to rename and expand the Adult Home Quality Enhancement Fund so that it can receive fines collected from enriched housing programs and residences for adults, as well as adult homes, and use such monies to promote quality of care in all such facilities. Section 13 of the bill amends SSL § 461-a(2)(a) to eliminate a provision permitting "facilities receiving the department's highest rating" to undergo inspections every 18 months, instead of annually, and instead reserves the 18 month inspection schedule for "facilities determined by the department to be in compliance with applicable statutes and regulations, based on the facility's most recent inspection." Section 14 of the bill adds a new SSL § 461-3(2)(c) to eliminate the requirement that the report of an inspection of an adult care facility specify each area or operation which is or is not in compliance with applicable regulations, and instead requires that such report identify only areas t11at are not in compliance. The bill also removes the requirement that the inspection report provide directions as to the manner and time in which compliance with applicable regulations must be achieved, and instead requires that the operator submit a written plan of correction within 30 calendar days of when the inspection report is received. DOH will notify the operator as to the acceptability of the plan 30 days after receipt of such plan. Additionally, the bill adds enriched housing programs to the facilities required to develop, biannually update and implement plans for quality assurance activities for each area of operation. Section 15 of the bill adds new SSL § 461-b(9) to provide that an individual or entity which is not the duly approved operator of an adult home, enriched housing program or residence for adults shall not participate in the total gross income or net revenue of such adult care facility. Section 16 of the bill adds a new SSL § 461-b(0) to require that any fee for the lease of the real property on which an adult home, enriched housing program or residence for adults is located, and/or any fee for the lease of the premises in which such facility is located, shall be no greater than the commercially reasonable fair market value for similar properties or premises in the geographic region where the facility is located. Section 17 of the bill adds new SSL § 461-b(11) to provide that no operator of an adult care facility shall, directly or indirectly, make any charitable contribution of state monies, medical assistance payments or social security or supplemental security income or any interest earned on such monies; except as expressly authorized by the Commissioner. Section 18 of the bill amends Mental Hygiene Law (MHL) §§ 29.15 (i)(2)(I) and (II) to include enriched housing programs among the facilities to whom a patient can be referred when discharged from facilities licensed or operated by the Office of Mental Retardation and Developmental Disabilities (OMRDD), the Office of Alcoholism and Substance Abuse Services (OASAS) or the Office of Mental Health (OMH), if the receiving facility meets applicable requirements. Section 19 of the bill amends Public Health Law (PHL) §§ 4651 (13) and (15) to revise the definitions of "aging in place" and "enhanced assisted living residence" (EALR) to permit the admission of residents to an EALR from outside the residence, as long as such residents are not in need of continual 24 hour nursing or medical care, are not chronically bedfast and are not so cognitively, physically or mentally impaired that their safety would be endangered. Section 20 of the bill amends PHL § 4655(5) to clarify that the section specifically applies to adult cure facilities rather than to "residences." Section 21 of the bill amends section 1 of Chapter 462 of the Laws of 1996 to provide that the determination of whether to deny quality incentive payments, known as QUIP funds, to operators that have received notice of a proposed penalty for endangerment violations pursuant to SSL § 460-d (7)(b)(2) is within DOH's discretion. Section 22 of the bill provides that the bill would take effect immediately. EXISTING LAW : SSL § 2(21) defines an "adult care facility" as a residence which provides temporary or long-term residential care and services to adults who do not need nursing home services but are unable or substantially unable to live independently due to physical or other limitations associated with age, physical or mental disabilities Or other factors, The section identifies five types of adult care facilities: (1) family type homes for adults; (2) shelters for adults; (3) residences for adults; (4) enriched housing programs; and (5) adult homes. SSL § 2(22) defines a "family type home for adults" as an adult care facility established and operated for the purpose of providing long-term residential care and personal care and/or supervision to four or fewer adult persons unrelated to the operator. SSL § 2(23) defines a "shelter for adults" as an adult care facility established and operated for the purpose of providing temporary residential care, room, board, supervision, information and referral. SSL § 2(24) defines a "residence for adults" as an adult care facility established and operated for the purposes of providing long-term residential care, room, board, housekeeping and supervision to five or more adults, unrelated to the operator. SSL § 2(25) defines an "adult home" as an adult care facility established and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care (either directly or indirectly), and supervision to five or more adults unrelated to the operator. SSL § 460-d(4)(b) provides that the operating certificate of an adult home, residence for adult or enriched housing program may not be revoked, suspended or limited without a hearing, However, an operating certificate may be suspended or limited without a hearing for a period of no more than 60 days if DOH provides written notice of its finding that the public health or an individual's health, safety or welfare is in imminent danger. SSL § 460-d(4)(c) provides that any order or determination to suspend an adult care facility's operating certificate will specify the conditions of the suspension which, among other things, may include the appointment of a temporary operator to operate the facility during the term of the suspension. SSL § 460-d(7)(b) provides for civil penalties for violations of applicable regulatory standards occurring in adult homes, residences for adults and enriched housing programs of up to $ 1,000 per day, in accordance with a fine schedule promulgated in regulation. No increased penalty is authorized for repeat violations, and an adult care facility operator can avoid fines for most violations by rectifying the violations within 30 days of receiving a notice of the violations. Rectification of a violation does not preclude the assessment of a penalty if the violation, although corrected. endangered or resulted in harm to one or more residents as the result of specifically enumerated circumstances, such as the failure of the facility's fire prevention or evacuation procedures or a failure of the facility's systemic practices and procedures. SSL § 460-d(11) provides that when DOH proposes in writing to take certain actions against an adult care facility, including 'the revocation, suspension or denial of an operating certificate or placement of the facility on the "00 Not Refer" list created pursuant to SSL § 460d(15), DOH must notify the State mental hygiene agencies, the Department of Correctional Services, the Division of Parole, local social services districts, and hospitals in the locality where the facility is located that such written notice has been issued. SSL § 460-d(12) prohibits social services districts and other local government entities from making referrals to an adult care facility that has received written notice regarding the proposed revocation, suspension or denial of an operating certificate or of the proposed placement of such facility on the "Do Not Refer" list created pursuant to SSL § 460-d(15). SSL § 460-d(15) requires DOH to maintain on its website the "Do Not Refer" list - a list of all adult care facilities that have received written notice of enforcement actions, which must be promptly updated if such actions are resolved. SSL § 461-a(2)(a) provides that every adult care facility must undergo an unannounced inspection each year, except that "facilities receiving the department's highest rating" need be inspected only once every 18 months. SSL § 461-a(2)(c) requires that the report of an inspection of an adult care facility specify each area or operation which is or is not in compliance with applicable regulations, and provide directions as may be appropriate as to the manner and time in which compliance with applicable requirements of law shall be effected. The section also requires adult homes and residences for adults to develop, biannually update and implement plans for quality assurance activities for each area of operation. SSL § 461-d(3) sets forth the rights of residents and provides that a resident may riot waive such rights. SS L § 461-f(1) provides that to protect the health, safety and welfare of the residents of an adult care facility, DOH may authorize the continuing operation of a facility by a court appointed receiver pursuant to a written agreement between DOH and the operator. Such agreement may not exceed a period of 60 days, except that it may be extended for an additional 60-day period upon agreement of the parties. SSL § 461-f(2) provides that the operator of an adult care facility may at any time request that DOH appoint a receiver to take over the operation of the facility. If DOH agrees that such action is desirable, it may enter into an agreement with the operator for the appointment of a receiver under whatever conditions are acceptable to the parties. The agreement may not exceed a period of 60 days: however, it may be extended for an additional 60-day period upon agreement by the parties, SSL § 461-f(4) sets forth the powers and protections of a receiver appointed to operate an adult home, enriched housing program or residence for adults. State Finance Law § 91-f establishes the Adult Home Quality Enhancement Fund to receive fines collected from adult homes, which are to be used for purposes that promote quality in adult homes. MHL §§ 29.15(i)(2)(I) and (II) permit patients who are being discharged from facilities licensed or operated by the OMRDD, OASAS and OMH to adult homes, enriched housing programs, or residences for adults only if the receiving facility: (1) is consistent with the patient's needs; (2) is of high quality, as set forth in SSL § 460; (3) has not been notified that it is the subject of proposed suspension or revocation proceedings; and (4) has not been placed on the "Do Not Refer" list. PHL § 4651 (1) defines an "assisted living residence" (ALR) as an entity which provides or arranges for housing, food, monitoring, case management services, and personal care or home care services. PHL § 4651 (8) defines a resident's representative as a family member or other individual identified in an ALR residency agreement who is authorized by a resident to communicate with residence employees regarding the health, well-being, needs of and services provided to such resident and to assist the resident in obtaining needed services. PHL § 4651 (9) defines a resident's legal representative as a person duly authorized under applicable state law to act on behalf of a resident, which could include a court appointed guardian, an attorney in-fact under a durable power of attorney, an agent under a health care proxy or a representative payee, depending upon the action to be taken. PHL § 4561 (13) defines "aging in place" as meaning care and services at an EALR. PHL §§ 4561 (14) and (15) defines an EALR as an ALR that permits a resident to "age in place" by remaining in the residence for as long as the residence is able and authorized to accommodate the resident's current and changing needs. Residents are appropriate for EALR care if they are "chairfast" and need assistance to ambulate, transfer or walk, are dependent on medical equipment and require more than intermittent medical care, or suffer from chronic incontinence. PHL § 4652 provides that adult homes and enriched housing programs which possess operating certificates issued pursuant to SSL Article 7, Title II, may be licensed by DOH as ALRs. PHL § 4655 provides that an ALR may be certified to operate some or all of its beds as an EALR to provide enhanced assisted living care to residents who do not need 24-hour medical or nursing care. PHL § 4655 also provides that an ALR may be certified as a Special Needs Assisted Living Residence (SNALR) to care for residents with special needs such as dementia or cognitive impairments. An AL.R may be certified as either an EALR or a SNALR or both. but is not required to seek either certification. Chapter 462 of the Laws of 1996 established the QUIP program, authorizing DOH to award funds to adult homes. residences for adults and enriched housing program that are, based on the most recent inspections, in compliance with applicable statutes and regulations. QUIP funds are used to improve a facility's physician environment or to improve the quality of care and services to residents. DOH has the discretion to deny QUIP funds to operators that have received notice of an assessment of a penalty for non-rectifiable violations pursuant to SSL § 460-d (7)(b)(1), but must deny payment to a facility that has received notice of a proposed revocation or suspension of its operating certificate or a proposed assessment of penalties for endangerment violations pursuant to SSL § 460-d (7)(b)(2). LEGISLATIVE HISTORY : A similar departmental bill was introduced in 2007 (A.8701/S.5155) but did not pass. STATEMENT IN SUPPORT : Adult homes, enriched housing programs and residences for adults - collectively referred to as adult care facilities - are important models of care that serve as the homes of thousands of New York State residents. This bill builds on DOH's commitment to improve and enhance the health, safety and quality of life of New Yorkers living in such facilities by establishing in law important resident rights and protections, strengthening the enforcement of applicable standards, improving inspection report procedures and removing obstacles to the institution or continuation of temporary operators or receivers. To protect life, health and safety, the bill prohibits any new admissions to an adult care facility facing enforcement action if DOH finds that a condition exists which is dangerous to the health, safety or welfare of any resident. In addition, although various state and county agencies and facilities, as well as local hospitals, are notified when an adult care facility is placed on the "Do Not Refer" list and are barred from making referrals to such facilities, other adult care facilities are not subject to such notification and prohibition. This bill corrects that omission The bill also improves current reporting requirements related to resident deaths or attempted suicides and felonies committed against residents. The bill makes these requirements, already applicable to adult homes and residences for adults, applicable to enriched housing programs as well, and requires that felonies be reported within 24 hours rather than 48 hours as set forth in existing law. In addition, although reports of deaths, suicides and felonies involving residents who receive or have received mental hygiene services must be reported to CQCAPD under current law, there is no deadline for doing so. The bill requires such reporting to take place within 24 hours of the occurrence of an applicable event. Moreover, the bill codifies the right of residents to designate resident representatives and legal representatives and provides that such representatives may not waive any of the rights enumerated in SSL § 461-d(3). The hill also sets forth in statute the rights of residents to choose their own health care providers and be fully informed about treatment and the right to refuse treatment after being fully informed of the consequences. These changes are consistent with the ALR provisions of PHL Article 46-8, which expressly recognize such rights. Other protections embodied in the bill include a prohibition on any one other than an approved operator participating in a facility's revenues. This is intended to prevent situations which could improperly influence operational decisions to the detriment of patient care. Further, the bill contains a requirement that any fee paid by a facility for the lease of the property or premises where the facility is located be no greater than fees charged for similar leases, preventing an operator who owns the property underneath the facility from improperly inflating the rental fee. In addition, by restricting charitable contributions made with funds provided by the State, whether directly or indirectly, the bill ensures that State monies are used for their intended purposes and eliminates the opportunity for operators to pressure residents into paying money for any reason unrelated to their care. The bill also seeks to improve enforcement of the standards governing adult care facilities. Currently, an operator can avoid fines for most violations by rectifying the violations within 30 days of receiving a notice of such violations. This enables an operator to repeatedly violate or permit the violation of the same regulatory provision without penalty, as long as the operator temporarily corrects the violation after an inspection. Prohibiting adult care facilities from asserting rectification as a complete defense for recurring violations is consistent with other long-term care models regulated by DOH, including nursing homes. Accordingly, the bill provides that rectification will not preclude the assessment of a penalty in the event of a recurring violation. Several court decisions have interpreted SSL § 461-a(2)(3) as requiring that DOH inspection reports indicate areas of operation not only where an adult care facility is not in compliance with statutory and regulatory standards, but also each and every area that is in compliance. The section has also been interpreted to require that DOH specifically direct how a violation is to be rectified, even where the manner of appropriate rectification is obvious. These readings of the law result in the expenditure of DOH resources that would be better spent on oversight of other patient care issues. Accordingly, the bill revises the section to eliminate these problems. Moreover, the bill requires enriched housing programs to develop, update and implement quality assurance plans, which is currently a requirement only for adult homes and residences for adults. The bill also permits the pre-hearing suspension or limitation of an operating certificate to be extended by a hearing officer beyond the 60 days currently set forth in law, as long as DOH has made reasonable efforts to commence and complete a hearing. This gives the hearing officer the discretion to determine whether an operator who has allegedly created or permitted an imminent danger to residents should be permitted to resume operation of the facility before the completion of the hearing and any available administrative appeals. Additionally, the bill bestows upon a temporary operator appointed to operate a facility during the operator's suspension the same powers and protections that are available to a receiver pursuant to SSL § 461-f(4). This will help ensure that a temporary operator has the ability and resources to effectively operate a facility, and will help recruit entities which may otherwise be reluctant to serve as temporary operators. With regard to receivers, the bill makes technical corrections to SSL § 461-f, which currently limits the period of time for which a court-appointed receivership can be voluntarily extended, and similarly limits the period of time for the extension of a voluntary receivership. The bill leaves the duration of such receiverships to the receivership agreements, and mandates that receivers be made parties to such agreements. Flexibility is warranted because receiverships typically last for more than one year. In most cases, either the receiver or another entity is preparing an application for a change of operator, which usually takes several months to be reviewed and have a determination made. In some cases, where the receiver determines that it is not feasible to continue operation of the facility, DOH may approve a closure plan that also may take several months to implement. The bill also requires Chapter 462 of the Laws of 1996 to provide that DOH has the discretion to decide whether an adult home, residence for adults or enriched house program should receive QUIP funds if there is a pending proceeding to assess penalties for endangerment violations. Because QUIP funds are intended to be used for the benefit of residents rather than as a prize for the benefit of the operator, DOH believes that the denial of such funds should not be automatically imposed in cases of endangerment instead, as is the case with pending proceedings for non-rectifiable violations, DOH should be given an opportunity to review the circumstances surrounding the endangerment violation in determining whether QUIP funds should be awarded. Finally, the bill addresses issues concerning adult care facilities that are certified as ALRs, EALRs, and SNALRs under PHL Article 46-B. Currently, PHL § 4651 allow ALR residents to move to the EALR level only if they reside in an ALR with EALR certification; individuals cannot be admitted directly to an EALR from any other source. The bill would allow individuals who are appropriate for placement in an EALR to be admitted from other settings, such as the community, other ALRs or other EALRs, but reiterates that a resident requiring 24hour nursing or medical care may not be admitted to an EALR. In addition, the bill revises PHL § 4655 to replace a reference to "residences" with "adult care facilities," clarifying that if such facilities serve residents with dementia or cognitive impairments, they must be certified as SNALRs. BUDGET IMPLICATIONS : This bill is not expected to have a fiscal impact on the State. EFFECTIVE DATE : This bill would take effect immediately.
2009-S3297 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
3297
2009-2010 Regular Sessions
I N S E N A T E
March 16, 2009
___________
Introduced by Sen. DUANE -- (at request of the Department of Health) --
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, the state finance law, the
mental hygiene law, the public health law and chapter 462 of the laws
of 1996, relating to establishing a quality incentive payment program
for adult homes, in relation to the appointment of a temporary opera-
tor or voluntary receiver of adult care facilities, death and felony
crime reports, ban on admissions and approval of applications for
establishment of adult care facilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 7 of section 460-d of the social services law
is amended by adding a new paragraph (e) to read as follows:
(E) RECTIFICATION SHALL NOT PRECLUDE THE ASSESSMENT OF A PENALTY IF
THE DEPARTMENT ESTABLISHES THAT A PARTICULAR VIOLATION, ALTHOUGH
CORRECTED, WAS A VIOLATION CITED BY THE DEPARTMENT AT THE PREVIOUS
FACILITY INSPECTION.
S 2. Paragraphs (b) and (c) of subdivision 4 of section 460-d of the
social services law, paragraph (b) as amended and paragraph (c) as added
by chapter 733 of the laws of 1994 and subparagraph (i) of paragraph (c)
as amended by section 50 of part B of chapter 58 of the laws of 2004,
are amended to read as follows:
(b) No operating certificate shall be revoked, suspended or limited
without a hearing held in accordance with procedures established by
department regulations, which procedures shall require that notice of
the time and place of the hearing, and notice of the charges, shall be
served in person or by certified mail addressed to the facility at least
thirty days prior to the date of the hearing. A written answer to the
charges may be filed with the department not less than ten business days
prior to the date of the hearing. An operating certificate may, never-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07256-04-9
S. 3297 2 theless, be suspended or limited without a hearing for a period not in excess of sixty days, upon written notice to the facility following a finding by the department that the public health, or an individual's health, safety or welfare, are in imminent danger; PROVIDED, HOWEVER, THAT IF THE DEPARTMENT MAKES REASONABLE EFFORTS TO COMMENCE A HEARING WITHIN SUCH SIXTY DAY PERIOD AND TO COMPLETE SUCH HEARING WITHIN A REASONABLE PERIOD OF TIME, THE HEARING OFFICER MAY AUTHORIZE THE DEPART- MENT TO EXTEND THE PERIOD OF SUSPENSION OR LIMITATION FOR AN APPROPRIATE PERIOD OF TIME, BUT IN NO EVENT BEYOND THE DATE WHEN THE HEARING IS COMPLETED AND AVAILABLE ADMINISTRATIVE APPEALS ARE EXHAUSTED. (c) Any order or determination to suspend any operating certificate will specify the conditions of the suspension. These conditions may include but need not be limited to the following: (i) if required for the protection of the health, safety or welfare of the residents, the immediate transfer of some or all residents to other appropriate facilities or to the custody of their legal guardians, if any; (ii) the appointment of a temporary operator to operate the facility during the term of the suspension. THE POWERS AND PROTECTIONS OF A TEMPORARY OPERATOR UNDER THIS SUBDIVISION SHALL INCLUDE THE POWERS AND PROTECTIONS OF A RECEIVER AS SET FORTH IN SUBDIVISION FOUR OF SECTION FOUR HUNDRED SIXTY-ONE-F OF THIS ARTICLE; (iii) the immediate transfer of all records concerning the operation of the facility, including resident records, facility business records and any other records related to the operation of the facility to the department immediately. The department shall control the records for the term of the suspension; (iv) the operator or operators of the facility shall be barred from access to the facility during the term of the suspension; or (v) the requirement that the operator, if replaced by a temporary operator, provide the temporary operator with any funds received by the operator for the operation of the facility. S 3. Subdivision 11 of section 460-d of the social services law, as amended by section 42 of part B of chapter 58 of the laws of 2004, is amended to read as follows: 11. On or before issuance by the department to an adult care facility operator of official written notice of: the proposed revocation, suspen- sion or denial of the operator's operating certificate; the limitation of the operating certificate with respect to new admissions; the issu- ance of a department order or commissioner's order; the seeking of equi- table relief pursuant to this section; the proposed assessment of civil penalties for violations of the provisions of subparagraph two of para- graph (b) of subdivision seven of this section or placement on the "do not refer list" pursuant to subdivision fifteen of this section, written notice also shall be given to the appropriate office of the department of mental hygiene, department of correctional services, state division of parole and local social services districts, and provided further that the department of health shall notify hospitals AND ADULT CARE FACILI- TIES in the locality in which such facility is located that such notice has been issued. Upon resolution of such enforcement action the depart- ment shall notify the appropriate office of the department of mental hygiene, department of correctional services, state division of parole, local social services districts [and], hospitals AND ADULT CARE FACILI- TIES. S. 3297 3 S 4. Subdivision 12 of section 460-d of the social services law, as amended by section 42 of part B of chapter 58 of the laws of 2004, is amended to read as follows: 12. [Social] HOSPITALS, ADULT CARE FACILITIES, SOCIAL services districts and other local government entities established pursuant to this chapter shall be prohibited from making referrals for admissions to adult care facilities that have received official written notice regard- ing: the proposed revocation, suspension or denial of the operator's operating certificate; the limitation of the operating certificate with respect to new admissions; the issuance of department order or commis- sioner's orders; the seeking of equitable relief pursuant to this section; the proposed assessment of civil penalties for violations of the provisions of subparagraph two of paragraph (b) of subdivision seven of this section; or the facility's placement on the "do not refer list" pursuant to subdivision fifteen of this section. S 5. Subdivision 1 of section 461-f of the social services law, as amended by section 44 of part B of chapter 58 of the laws of 2004, is amended to read as follows: 1. As a means of protecting the health, safety and welfare of the residents of an adult care facility subject to inspection and super- vision by the department, it may become necessary under certain circum- stances to authorize the continuing operation of such facility for a temporary period by a court appointed receiver, at the discretion of the commissioner, as provided in this section or with respect to an adult home, enriched housing program or residence for adults, a receiver approved by the department of health pursuant to written agreement between the department, THE RECEIVER and the operator or operators of such facility[, provided that such agreement shall not exceed a period of sixty days but may be extended for an additional sixty day period upon agreement by the parties]. SUCH RECEIVERSHIP SHALL TERMINATE AT SUCH TIME AND IN SUCH MANNER AS IS AGREED UPON BY THE PARTIES. S 6. Subdivision 2 of section 461-f of the social services law, as added by section 45 of part B of chapter 58 of the laws of 2004, is amended to read as follows: 2. The operator or operators of any adult home, enriched housing program or residence for adults may at any time request the department of health to appoint a receiver to take over the operation of such facility. Upon receiving such a request, the department of health may, if it deems such action desirable, enter into an agreement with any such operator or operators AND THE RECEIVER for the appointment of a receiver to take charge of the facility under whatever conditions as shall be found acceptable by the parties[, provided that such agreement shall not exceed a period of sixty days but may be extended for an additional sixty day period upon agreement by the parties]. SUCH RECEIVERSHIP SHALL TERMINATE AT SUCH TIME AND IN SUCH MANNER AS IS AGREED UPON BY THE PARTIES. S 7. Section 461-m of the social services law, as amended by chapter 462 of the laws of 1996, is amended to read as follows: S 461-m. Death and felony crime reporting. The operator of an adult home, ENRICHED HOUSING PROGRAM or residence for adults shall have an affirmative duty to report any death, or attempted suicide of a resident to the department OF HEALTH within twenty-four hours of its occurrence, and shall also have an affirmative duty to report to an appropriate law enforcement authority if it is believed that a felony crime may have been committed against a resident of such facility as soon as possible, or in any event within [forty-eight] TWENTY-FOUR hours. In addition, S. 3297 4 the operator shall send any reports involving a resident who had at any time received services from a mental hygiene service provider to the state commission on quality of care [for the mentally disabled] AND ADVOCACY FOR PERSONS WITH DISABILITIES WITHIN TWENTY-FOUR HOURS OF THE OCCURRENCE OF THE DEATH, ATTEMPTED SUICIDE OR FELONY CRIME. S 8. Section 460-d of the social services law is amended by adding a new subdivision 17 to read as follows: 17. NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, WHEN THE DEPARTMENT OF HEALTH ISSUES OFFICIAL WRITTEN NOTICE OF A PROPOSED ACTION SPECIFIED IN SUBDIVISION ELEVEN OF THIS SECTION, AND THE DEPARTMENT DETERMINES THAT THERE IS A CONDITION WHICH CONSTITUTES AN IMMINENT DANGER TO THE HEALTH, SAFETY OR WELFARE OF ANY RESIDENT, THE DEPARTMENT MAY PROHIBIT THE OPERATOR FROM ADMITTING ANY NEW RESIDENT TO THE FACILITY UNTIL THE DEPARTMENT DETERMINES THAT THERE IS NO LONGER AN IMMINENT DANGER TO THE HEALTH, SAFETY OR WELFARE OF ANY RESIDENT. S 9. Section 2 of the social services law is amended by adding two new subdivisions 38 and 39 to read as follows: 38. RESIDENT REPRESENTATIVE MEANS A FAMILY MEMBER OR OTHER PERSON DESIGNATED BY A RESIDENT OF AN ADULT HOME, ENRICHED HOUSING PROGRAM OR RESIDENCE FOR ADULTS IN THE ADMISSIONS AGREEMENT TO ADVOCATE ON BEHALF OF THE RESIDENT. THE ADMISSIONS AGREEMENT MAY BE AMENDED AT ANY TIME TO ALLOW THE RESIDENT TO DESIGNATE OR CHANGE A RESIDENT REPRESENTATIVE. 39. LEGAL REPRESENTATIVE MEANS A PERSON DULY AUTHORIZED UNDER APPLICA- BLE LAW TO TAKE CERTAIN ACTION ON BEHALF OF A RESIDENT OF AN ADULT HOME, ENRICHED HOUSING PROGRAM OR RESIDENCE FOR ADULTS. SUCH LEGAL REPRESEN- TATIVE COULD INCLUDE, BUT IS NOT NECESSARILY LIMITED TO, LEGAL COUNSEL, A COURT-APPOINTED GUARDIAN, AN ATTORNEY-IN-FACT UNDER A POWER OF ATTOR- NEY, AN AGENT UNDER A HEALTH CARE PROXY OR A REPRESENTATIVE PAYEE, DEPENDING UPON THE ACTION TO BE TAKEN. S 10. Subdivision 3 of section 461-d of the social services law is amended by adding three new paragraphs (l), (m) and (n) to read as follows: (L) EVERY RESIDENT SHALL HAVE THE RIGHT TO BE FULLY INFORMED BY HIS OR HER PHYSICIAN, HEALTH OR MENTAL HEALTH PROVIDER OF HIS OR HER MEDICAL CONDITION AND PROPOSED MEDICATION, TREATMENT AND SERVICES, UNLESS MEDICALLY CONTRAINDICATED, AND TO REFUSE MEDICATION, TREATMENT OR SERVICES AFTER BEING FULLY INFORMED OF THE CONSEQUENCES OF SUCH ACTIONS. (M) EVERY RESIDENT SHALL HAVE THE RIGHT TO CHOOSE HIS OR HER OWN HEALTH CARE PROVIDERS FOR SERVICES NOT COVERED BY HIS OR HER ADMISSION AGREEMENT, SUBJECT TO LIMITATIONS THAT MAY APPLY AS A RESULT OF A RESI- DENT'S THIRD PARTY PAYOR COVERAGE. (N) EVERY RESIDENT SHALL HAVE THE RIGHT TO CHOOSE HIS OR HER OWN LEGAL REPRESENTATIVE AND HIS OR HER OWN RESIDENT REPRESENTATIVE. S 11. The closing paragraph of subdivision 3 of section 461-d of the social services law, as added by chapter 601 of the laws of 1981, is amended to read as follows: Waiver of any provision contained within this subdivision by a resi- dent of an adult care facility OR BY THE RESIDENT'S LEGAL REPRESENTATIVE OR RESIDENT REPRESENTATIVE, WITH RESPECT TO A RESIDENT OF AN ADULT HOME, RESIDENCE FOR ADULTS OR ENRICHED HOUSING PROGRAM, shall be void. S 12. Section 91-f of the state finance law, as added by section 51 of part B of chapter 58 of the laws of 2004, is amended to read as follows: S 91-f. Adult home, ENRICHED HOUSING PROGRAM AND RESIDENCE FOR ADULTS quality enhancement fund. 1. There is hereby established in the joint custody of the state comptroller and the commissioner of taxation and S. 3297 5 finance a special revenue fund to be known as the adult home, ENRICHED HOUSING PROGRAM AND RESIDENCE FOR ADULTS quality enhancement fund. 2. The adult home, ENRICHED HOUSING PROGRAM AND RESIDENCE FOR ADULTS quality enhancement fund shall consist of moneys received by the state pursuant to section four hundred sixty-d of the social services law and all other moneys appropriated, credited or transferred thereto from any other fund or source. 3. The moneys from the adult home, ENRICHED HOUSING PROGRAM AND RESI- DENCE FOR ADULTS quality enhancement fund shall be disbursed by the department of health to promote programs to improve the quality of care in adult homes, ENRICHED HOUSING PROGRAMS AND RESIDENCES FOR ADULTS. S 13. Paragraphs (a) and (b) of subdivision 2 of section 461-a of the social services law, paragraph (a) as amended by chapter 735 of the laws of 1994 and paragraph (b) as amended by chapter 601 of the laws of 1981, are amended to read as follows: (a) With respect to adult care facilities the department shall conduct a minimum of one unannounced inspection of each such facility to deter- mine the adequacy of care being rendered, pursuant to the following: (1) Such facilities [receiving the department's highest rating] DETER- MINED BY THE DEPARTMENT TO BE IN COMPLIANCE OR SUBSTANTIAL COMPLIANCE WITH APPLICABLE STATUTES AND REGULATIONS, BASED ON THE FACILITY'S MOST RECENT INSPECTION, shall be inspected at least once every eighteen months on an unannounced basis. (2) All other such facilities shall be inspected on an unannounced basis no less than annually. The commissioner may provide for more frequent inspections of any such facilities. Such inspection shall not be required with respect to any facility for which the commissioner has delegated responsibility for inspection and supervision to a social services official pursuant to section four hundred sixty-c of this [chapter] ARTICLE. Any employee of the department or a social services district who gives or causes to be given advance notice of such unan- nounced inspections to any unauthorized persons shall, in addition to any other penalty provided by law, be suspended by the department or the social services district from all duties without pay for at least five days or for such greater period of time as the department or social services district shall determine. Any such suspension shall be made by the department or social services district in accordance with all other applicable provisions of law. (b) [The department or a social services district, where appropriate, shall each year conduct a minimum of one full inspection of each adult care facility. Such inspection] AN INSPECTION OF AN ADULT CARE FACILITY UNDER THIS SECTION shall include, but shall not be limited to, examina- tion of the medical, dietary and social services records of the facility as well as the minimum standards of construction, life safety standards, quality and adequacy of care, rights of residents, payments and all other areas of operation. The purpose of any inspection shall be to determine compliance with requirements of applicable provisions of law and regulations of the department. S 14. Paragraph (c) of subdivision 2 of section 461-a of the social services law, as amended by chapter 735 of the laws of 1994, is amended to read as follows: (c) (I) An inspection report shall be made of each inspection which shall clearly identify and indicate in detail each area of operation, including, but not limited to, the premises, equipment, personnel, resi- dent care and services, and whether [each] ANY such area of operation or any of its component parts is [or is] not in compliance with the regu- S. 3297 6 lations of the department and all other applicable requirements. It also shall identify those areas of operation or any of its component parts found not in compliance as a result of failure in systemic practices and procedures. The operator shall be notified of the results of the inspection in a manner to be determined by regulations of the department AND SHALL SUBMIT A WRITTEN PLAN OF CORRECTION TO THE DEPARTMENT WITHIN THIRTY CALENDAR DAYS FROM THE DATE THE INSPECTION REPORT IS RECEIVED. THE DEPARTMENT SHALL NOTIFY THE OPERATOR OF THE ACCEPTABILITY OF THE PLAN OF CORRECTION WITHIN THIRTY CALENDAR DAYS OF THE DEPARTMENT'S RECEIPT OF SUCH PLAN. [Such notification shall contain directions as may be appropriate as to the manner and time in which compliance with applicable requirements of law or regulations of the department shall be effected.] (II) The department shall also require the operator of an adult home, ENRICHED HOUSING PROGRAM or residence for adults to develop, biannually update and implement plans for quality assurance activities for each area of operation. Quality assurance activities include but are not limited to, development and maintenance of performance standards, measurement of adherence to such standards and to applicable state and local laws and regulations, identification of performance failures, design, and implementation of corrective action. S 15. Section 461-b of the social services law is amended by adding a new subdivision 9 to read as follows: 9. AN INDIVIDUAL OR ENTITY WHICH IS NOT THE DULY APPROVED OPERATOR OF AN ADULT HOME, ENRICHED HOUSING PROGRAM OR RESIDENCE FOR ADULTS SHALL NOT PARTICIPATE IN THE TOTAL GROSS INCOME OR NET REVENUE OF SUCH FACILI- TY. S 16. Section 461-b of the social services law is amended by adding a new subdivision 10 to read as follows: 10. ANY FEE FOR THE LEASE OF THE REAL PROPERTY ON WHICH AN ADULT HOME, ENRICHED HOUSING PROGRAM OR RESIDENCE FOR ADULTS IS LOCATED AND/OR FOR THE LEASE OF THE PREMISES OCCUPIED BY SUCH A FACILITY, PROGRAM OR RESI- DENCE SHALL BE NO GREATER THAN THE COMMERCIALLY REASONABLE FAIR MARKET VALUE FOR SIMILAR PROPERTIES OR PREMISES IN THE GEOGRAPHIC REGION IN WHICH SUCH A FACILITY, PROGRAM OR RESIDENCE IS LOCATED. S 17. Section 461-b of the social services law is amended by adding a new subdivision 11 to read as follows: 11. NO OPERATOR OF AN ADULT CARE FACILITY SHALL, DIRECTLY OR INDIRECT- LY, MAKE ANY CHARITABLE CONTRIBUTION OF STATE MONIES, MEDICAL ASSISTANCE PAYMENTS OR SOCIAL SECURITY OR SUPPLEMENTAL SECURITY INCOME OR ANY INTEREST OR OTHER INCOME EARNED THEREON, EXCEPT AS EXPRESSLY AUTHORIZED BY THE COMMISSIONER. S 18. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of section 29.15 of the mental hygiene law, as amended by chapter 534 of the laws of 2006, are amended to read as follows: (I) A patient about to be discharged or conditionally released from a department facility licensed or operated by the office of mental retar- dation and developmental disabilities or from an inpatient facility operated or licensed by the office of [alcohol] ALCOHOLISM and substance abuse services or the office of mental health to an adult home, ENRICHED HOUSING PROGRAM or residence for adults, as defined in section two of the social services law, shall be referred only to such home, PROGRAM or residence that is consistent with that patient's needs and that operates pursuant to section four hundred sixty of the social services law, provided further that: (A) for a department facility licensed or oper- ated by the office of mental retardation and developmental disabilities or for an inpatient facility operated by the office of [alcohol] ALCO- S. 3297 7 HOLISM and substance abuse services or the office of mental health, the facility director retains authority to determine whether the home, program or residence is consistent with that patient's needs and (B) such referral shall be made to the patient's home county whenever possi- ble or appropriate. (II) No patient about to be discharged or conditionally released from a department facility licensed or operated by the office of mental retardation and developmental disabilities or from an inpatient facility operated or licensed by the office of [alcohol] ALCOHOLISM and substance abuse services or the office of mental health shall be referred to any adult home, ENRICHED HOUSING PROGRAM or residence for adults, as defined in section two of the social services law, which has received an offi- cial written notice from the department of health of: (A) the proposed revocation, suspension or denial of its operating certificate; (B) the limitation of its operating certificate with respect to new admissions; (C) the issuance of a department of health order or commissioner of health's order or the seeking of equitable relief pursuant to section four hundred sixty-d of the social services law; (D) the proposed assessment of civil penalties for violations of the provisions of subparagraph two of paragraph (b) of subdivision seven of section four hundred sixty-d of the social services law; or placement on the "do not refer list" pursuant to subdivision fifteen of section four hundred sixty-d of the social services law. Referrals may resume when such enforcement actions are resolved. S 19. Subdivisions 13 and 15 of section 4651 of the public health law, as added by chapter 2 of the laws of 2004, are amended to read as follows: 13. "Aging in place" means, care and services at a facility which possesses an enhanced assisted living certificate which, to the extent practicable, within the scope of services set forth in the written resi- dency agreement executed pursuant to section four thousand six hundred fifty-eight of this article, accommodates a resident's changing needs and preferences in order to allow such resident to BE ADMITTED TO OR remain in the residence as long as the residence is able and authorized to accommodate the resident's current and changing needs. A residence that does not possess an enhanced assisted living certificate shall not be deemed able to accommodate a resident's needs if the resident requires or is in need of either enhanced assisted living or twenty-four hour skilled nursing care or medical care provided by facilities licensed pursuant to article twenty-eight of this chapter or article nineteen, thirty-one or thirty-two of the mental hygiene law. 15. "Enhanced assisted living certificate" means a certificate issued by the department which authorizes an assisted living residence to provide aging in place by EITHER ADMITTING OR retaining residents who desire [to continue] to age in place and who: (a) are chronically chair- fast and unable to transfer, or chronically require the physical assist- ance of another person to transfer; (b) chronically require the physical assistance of another person in order to walk; (c) chronically require the physical assistance of another person to climb or descend stairs; (d) are dependent on medical equipment and require more than intermit- tent or occasional assistance from medical personnel; or (e) has chronic unmanaged urinary or bowel incontinence. IN NO EVENT SHALL A PERSON BE ADMITTED TO AN ASSISTED LIVING RESIDENCE WHO IS IN NEED OF CONTINUAL TWENTY-FOUR HOUR NURSING OR MEDICAL CARE, WHO IS CHRONICALLY BEDFAST, OR WHO IS COGNITIVELY, PHYSICALLY OR MEDICALLY IMPAIRED TO SUCH A DEGREE THAT HIS OR HER SAFETY WOULD BE ENDANGERED. S. 3297 8 S 20. Subdivision 5 of section 4655 of the public health law, as added by chapter 2 of the laws of 2004, is amended to read as follows: 5. In addition to the requirements otherwise required for licensure as assisted living, any [residence] ADULT CARE FACILITY SUBJECT TO THE INSPECTION AND SUPERVISION OF THE DEPARTMENT that SERVES, OR advertises or markets itself as serving individuals with special needs, including, but not limited to, individuals with dementia or cognitive impairments, must submit a special needs plan to the department setting forth how the special needs of such residents will be safely and appropriately met at such residence. Such plan shall include, but need not be limited to, a written description of specialized services, staffing levels, staff education and training, work experience, professional affiliations or special characteristics relevant to serving persons with special needs, and any environmental modifications that have been made or will be made to protect the health, safety and welfare of such persons in the resi- dence. In approving an application for special needs certification, the department shall develop standards to ensure adequate staffing and training in order to safely meet the needs of the resident. The stand- ards shall be based upon recommendations of the task force established by section five of [the] chapter TWO of the laws of two thousand four [which added this section]. No [residence] ADULT CARE FACILITY SUBJECT TO THE INSPECTION AND SUPERVISION OF THE DEPARTMENT shall market [them- selves] ITSELF as providing specialized services unless and until the department has approved such applicant for a special needs assisted living certificate. S 21. Section 1 of chapter 462 of the laws of 1996, relating to estab- lishing a quality incentive payment program for adult homes, as amended by section 36 of part B of chapter 58 of the laws of 2004, is amended to read as follows: Section 1. Quality incentive payment program. Subject to amounts appropriated for the quality incentive payment program, the department of health may make a payment to each operator of an adult home, resi- dence for adults or enriched housing program that is in compliance with applicable statutes and regulations based on the facility's most recent inspection. Such payment shall be based on the number of SSI recipients and recipients of safety net assistance residing in such facilities. Payment may also be made to a receiver of an existing adult home, enriched housing program or residence for adults. Provided, however, the department of health may deny payment to any facility that HAS RECEIVED OFFICIAL WRITTEN NOTICE FROM THE DEPARTMENT OF HEALTH OF A PROPOSED ASSESSMENT OF CIVIL PENALTIES FOR A VIOLATION OF SUBPARAGRAPH 2 OF PARA- GRAPH (B) OF SUBDIVISION 7 OF SECTION 460-D OF THE SOCIAL SERVICES LAW, OR, after a hearing conducted pursuant to subparagraph 1 of paragraph (b) of subdivision 7 of section 460-d of the social services law, has been adjudicated to not be providing care in compliance with applicable statutes and regulations. The department of health shall promulgate regulations to implement the provisions of this section. No payment shall be made to an operator that has received official written notice from the department of a proposed revocation, suspension, limitation or denial of the operator's operating certificate[; or proposed assessment of civil penalties for a violation of subparagraph 2 of paragraph (b) of subdivision 7 of section 460-d of the social services law]; issuance of a department order under subdivision 2 of section 460-d of the social services law; the granting of equitable relief under subdivision 5 of section 460-d of the social services law; or the issuance of a commissioner's order under subdivision 8 of section S. 3297 9 460-d of the social services law; or the issuance by a court of compe- tent jurisdiction of an order or approval of a settlement agreement which affirms that the rights afforded to residents of adult care facil- ities as provided for by section 461-d of the social services law have been violated. Provided further that prior to receiving quality incen- tive payment program funds, an operator shall consult with the resi- dents' council for such facility and, following such council's approval, shall submit an expenditure plan to the department. Such plan shall detail how quality incentive payment program funds will be used to improve the physical environment of the facility or the quality of care and services rendered to residents and may include but not be limited to staff training, air conditioning in residents' areas, furnishings, equipment, maintenance or repairs to the facility or expenditures related to corrective action as required by the most recent inspection report. Such expenditure plan shall be accompanied by an operator attes- tation. It shall be an affirmative duty of an operator of an adult care facility to notify the department within three working days after the issuance of a court order or court approved settlement agreement which has found that the rights of a resident, as provided for by section 461-d of the social services law or the rules and regulations of the department have been violated. S 22. This act shall take effect immediately.
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