Senate Bill S8394A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8394
 
                             I N  S E N A T E
 
                                May 4, 2018
                                ___________
 
 Introduced by Sen. HANNON -- (at request of the Department of Health) --
   read  twice  and  ordered printed, and when printed to be committed to
   the Committee on Health
 
 AN ACT to amend the public health law, in relation to  enhancing  trans-
   parency  and oversight of residential health care facilities (Part A);
   to amend the public health law, in relation to requiring the registra-
   tion of licensed home care services agencies (Part B);  to  amend  the
   social  services  law, in relation to enhancing transparency and over-
   sight of adult care facilities (Part  C);  and  to  amend  the  public
   health  law,  in  relation to increasing monetary penalties for public
   health law violations (Part D)
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  This  act enacts into law components of legislation which
 are necessary to  strengthen  the  department  of  health's  ability  to
 promote  quality in the provision of health care, particularly long-term
 care. Each component is wholly contained within  a  Part  identified  as
 Parts  A  through  D.  The  effective date for each particular provision
 contained within such Part is set forth in  the  last  section  of  such
 Part.    Any provision in any section contained within a Part, including
 the effective date of the Part, which makes a reference to a section "of
 this act," when used in connection with that particular component, shall
 be deemed to mean and refer to the corresponding section of the Part  in
 which  it  is  found.  Section  three of this act sets forth the general
 effective date of this act.
 
                                  PART A
 
   Section 1. Section 2803-d of the public  health  law,  as  amended  by
 chapter 340 of the laws of 1980, subdivision 1 as amended by chapter 230
 of  the laws of 2004, paragraph (c) of subdivision 6 as amended by chap-
 ter 414 of the laws of 1986, paragraph (d) of subdivision 6  as  amended
 by chapter 622 of the laws of 1980 and paragraph (g) of subdivision 6 as
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD14506-01-8

 S. 8394                             2
 
 amended  by  chapter  717  of  the  laws  of 1989, is amended to read as
 follows:
   §  2803-d.  Reporting  abuses of persons receiving care or services in
 residential  health  care  facilities.  1.  The  following  persons  are
 required  to  report  in  accordance  with  this  section when they have
 reasonable cause to believe that a person receiving care or services  in
 a  residential  health  care  facility  has  been  [physically]  abused,
 mistreated or neglected OR SUBJECTED TO THE MISAPPROPRIATION OF PROPERTY
 by other than a person receiving care or services in the  facility:  any
 operator  or employee of such facility, [any person who,] or employee of
 any corporation, partnership, organization or  other  entity  which,  is
 under  contract  to  provide patient care services in such facility, and
 any nursing home administrator, physician,  medical  examiner,  coroner,
 physician's  associate, specialist's assistant, osteopath, chiropractor,
 physical  therapist,  occupational  therapist,  registered  professional
 nurse, licensed practical nurse, dentist, podiatrist, optometrist, phar-
 macist,  psychologist,  licensed master social worker, licensed clinical
 social worker, speech pathologist and audiologist.
   2. In addition to those persons required to  report  suspected  [phys-
 ical] abuse, mistreatment or neglect OR MISAPPROPRIATION OF THE PROPERTY
 of persons receiving care or services in residential health care facili-
 ties,  any  other person may make such a report if he or she has reason-
 able cause to believe that a person receiving care or services has  been
 [physically]   abused,  mistreated  or  neglected  in  the  facility  OR
 SUBJECTED TO THE MISAPPROPRIATION OF PROPERTY.
   3. Reports of suspected [physical] abuse, mistreatment or  neglect  OR
 THE  MISAPPROPRIATION OF RESIDENT PROPERTY made pursuant to this section
 shall be made immediately by telephone and in writing within forty-eight
 hours to the department. Written reports shall be made on forms supplied
 by the commissioner and shall include  the  following  information:  the
 identity  of the person making the report and where he can be found; the
 name and address of the residential health care facility; the  names  of
 the  operator  and  administrator of the facility, if known; the name of
 the subject of the alleged [physical] abuse, mistreatment or neglect  OR
 MISAPPROPRIATION,  if  known;  the  nature  and extent of the [physical]
 abuse, mistreatment or neglect OR MISAPPROPRIATION; the date,  time  and
 specific  location  of the occurrence; the names of next of kin or spon-
 sors of the subject of the alleged  [physical]  abuse,  mistreatment  or
 neglect  OR  MISAPPROPRIATION, if known; and any other information which
 the person making the report believes would be helpful  to  further  the
 purposes  of  this  section. Such written reports shall be admissible in
 evidence, consistent with the provisions of paragraph (f) of subdivision
 six of this section, in any actions or proceedings  relating  to  [phys-
 ical] abuse, mistreatment or neglect OR MISAPPROPRIATION OF THE PROPERTY
 of persons receiving care or services in residential health care facili-
 ties.  Written  reports made other than on forms supplied by the commis-
 sioner which contain the information required herein shall be treated as
 if made on such forms.
   4. Any person who in good  faith  makes  a  report  pursuant  to  this
 section  shall  have immunity from any liability, civil or criminal, for
 having made such a report. For the purpose of any proceeding,  civil  or
 criminal,  the  good faith of any person required to report instances of
 [physical] abuse, mistreatment or neglect  OR  MISAPPROPRIATION  OF  THE
 PROPERTY  of  persons  receiving  care or services in residential health
 care facilities shall be presumed.

 S. 8394                             3
 
   5. Notwithstanding the provisions of section  two  hundred  thirty  of
 this  chapter,  any  licensed  person  who  commits an act of [physical]
 abuse, mistreatment or neglect OR MISAPPROPRIATION OF THE PROPERTY of  a
 person  receiving care or services in a residential health care facility
 and  any  licensed person required by this section to report an instance
 of suspected [physical] abuse, mistreatment or neglect  OR  MISAPPROPRI-
 ATION  OF THE PROPERTY of a person receiving care or services in a resi-
 dential health care facility who fails to  do  so  shall  be  guilty  of
 unprofessional conduct in the practice of his or her profession.
   6.  (a)  Upon  receipt  of a report made pursuant to this section, the
 commissioner shall cause an investigation to be made of the  allegations
 contained  in  the report. Notification of the receipt of a report shall
 be made immediately by the department to the appropriate district attor-
 ney if a prior request in writing has been made to the department by the
 district attorney. Prior to the completion of the investigation  by  the
 department,  every reasonable effort shall be made to notify, personally
 or by certified mail, any person under investigation for having  commit-
 ted  an act of [physical] abuse, mistreatment or neglect OR MISAPPROPRI-
 ATION OF PROPERTY. The commissioner shall make a written  determination,
 based on the findings of the investigation, of whether or not sufficient
 credible  evidence  exists  to  sustain the allegations contained in the
 report or would support a conclusion that a person  not  named  in  such
 report has committed an act of [physical] abuse, neglect or mistreatment
 OR  MISAPPROPRIATION  OF PROPERTY. A copy of such written determination,
 together with a notice of the right to a hearing  as  provided  in  this
 subdivision,  shall  be  sent  by  registered  or certified mail to each
 person who the commissioner has  determined  has  committed  an  act  of
 [physical] abuse, neglect or mistreatment OR MISAPPROPRIATION OF PROPER-
 TY. A letter shall be sent to any other person alleged in such report to
 have  committed  such  an act stating that a determination has been made
 that there is not sufficient evidence to sustain the allegations  relat-
 ing  to  such person. A copy of each such determination and letter shall
 be sent to the facility in which the alleged incident occurred.
   (b) The commissioner may make a written determination,  based  on  the
 findings  of the investigation, that sufficient credible evidence exists
 to support a conclusion that a person required by this section to report
 suspected [physical] abuse, mistreatment or neglect OR  MISAPPROPRIATION
 OF  PROPERTY  had  reasonable  cause  to  believe  that such an incident
 occurred and failed to report such incident.  A  copy  of  such  written
 determination,  together  with  a  notice  of  the right to a hearing as
 provided in this subdivision, shall be sent by registered  or  certified
 mail  to  each  person who the commissioner has determined has failed to
 report as required by this section.
   (c) All information relating to any allegation which the  commissioner
 has  determined  would  not  be  sustained shall be expunged one hundred
 twenty days following notification of such determination to  the  person
 who  made  the  report  pursuant  to  this  section, unless a proceeding
 pertaining to such allegation is pending pursuant  to  article  seventy-
 eight  of  the  civil  practice  law  and rules. Whenever information is
 expunged, the commissioner shall notify any official  notified  pursuant
 to  paragraph  (a)  of  this  subdivision  that the information has been
 expunged.
   (d) At any time within thirty days of the  receipt  of  a  copy  of  a
 determination  made  pursuant  to  this  section, a person named in such
 determination as having committed an act of [physical] abuse, neglect or
 mistreatment OR MISAPPROPRIATION OF  RESIDENT  PROPERTY,  or  as  having

 S. 8394                             4
 
 failed  to  report  such  an  incident,  may request in writing that the
 commissioner amend or expunge the record of such report, to  the  extent
 such  report  applies  to such person, or such written determination. If
 the  commissioner  does not comply with such request within thirty days,
 such person shall have the right to a fair hearing to determine  whether
 the  record of the report or the written determination should be amended
 or expunged on the grounds that the record is inaccurate or the determi-
 nation is not supported by the evidence. The burden  of  proof  in  such
 hearing  shall  be  on the department. Whenever information is expunged,
 the commissioner shall notify any official notified  pursuant  to  para-
 graph (a) of this subdivision that the information has been expunged.
   (e) Except as hereinafter provided, any report, record of the investi-
 gation  of  such report and all other information related to such report
 shall be confidential and shall be exempt from disclosure under  article
 six of the public officers law.
   (f)  Information  relating  to  a report made pursuant to this section
 shall be disclosed under any of the following conditions:
   (i) pursuant to article six of the public officers law after  expunge-
 ment  or  amendment,  if  any,  is  made  in  accordance  with a hearing
 conducted pursuant to this section, or at least forty-five days after  a
 written  determination  is  made  by  the  commissioner  concerning such
 report, whichever is later; provided, however, that the identity of  the
 person  who  made  the  report,  the  victim, or any other person named,
 except a person who the commissioner has determined committed an act  of
 [physical]  abuse,  neglect or mistreatment OR MISAPPROPRIATION OF RESI-
 DENT PROPERTY, shall not be disclosed unless such person authorizes such
 disclosure;
   (ii) as may be required by the  penal  law  or  any  lawful  order  or
 warrant issued pursuant to the criminal procedure law; or
   (iii)  to  a  person  who  has  requested  a  hearing pursuant to this
 section, information relating to the determination upon which the  hear-
 ing  is  to  be  conducted;  provided, however, that the identity of the
 person who made the report or any other person who provided  information
 in  an  investigation  of  the report shall not be disclosed unless such
 person authorizes such disclosure.
   (g) Where appropriate, the  commissioner  shall  report  instances  of
 [physical]  abuse,  mistreatment or neglect OR MISAPPROPRIATION OF RESI-
 DENT PROPERTY or the failure to report as required by this  section,  to
 the  appropriate  committee  on professional conduct for the professions
 enumerated in subdivision one of this section when a  determination  has
 been  made  after  the  commissioner  has  provided an opportunity to be
 heard. The commissioner shall  report  instances  of  [physical]  abuse,
 mistreatment,  neglect  or  misappropriation  of  resident property by a
 nurse aide or other unlicensed individual and any brief statement by the
 nurse aide or other unlicensed individual disputing the finding  to  the
 nursing  home  nurse aide registry established pursuant to section twen-
 ty-eight hundred three-j of this article when a determination  has  been
 made after the commissioner has provided an opportunity to be heard.
   7.  In  addition  to any other penalties prescribed by law, any person
 who commits an act of  [physical]  abuse,  neglect  or  mistreatment  OR
 MISAPPROPRIATION  OF  RESIDENT  PROPERTY, or who fails to report such an
 act as provided in this section, shall be deemed to have  violated  this
 section  and shall be liable for a penalty pursuant to section twelve of
 this chapter after an opportunity to be heard pursuant to this section.
   8. No residential health care facility or officer or employee  thereof
 shall  discharge  or in any manner discriminate or retaliate against any

 S. 8394                             5
 
 person in any residential health care  facility,  or  any  relative,  or
 sponsor thereof, or against any employee of the facility, or against any
 other  person because such person, relative, legal representative, spon-
 sor or employee has made, or is about to make, a report pursuant to this
 section,  or  has  testified,  or is about to testify, in any proceeding
 relating to [physical] abuse, mistreatment or  neglect  OR  MISAPPROPRI-
 ATION  OF THE PROPERTY of a person receiving care or services in a resi-
 dential health care facility.  The supreme court  may  grant  injunctive
 relief  to any person subject to such retaliation or discrimination. Any
 violation of this subdivision shall be punishable  pursuant  to  section
 twelve of this chapter.
   9.  No later than March fifteenth of every year the commissioner shall
 prepare and transmit to the governor and the legislature a report on the
 incidents of [physical] abuse, mistreatment and neglect OR  MISAPPROPRI-
 ATION  OF THE PROPERTY of persons receiving care or services in residen-
 tial health care facilities. No information concerning any individual or
 facility shall be disclosed in a report made pursuant to  this  subdivi-
 sion,  or  in any other report, except information which would be avail-
 able pursuant to article six of the public officers law as  provided  in
 this section. Nothing in this section shall be construed to prohibit the
 maintenance or disclosure of, or require the expungement of, statistical
 data which would not reveal the identity of any person or facility.
   10.  An investigation shall be made of each incident reported pursuant
 to this section, but only the provisions of paragraphs (e)  and  (f)  of
 subdivision  six, and subdivisions two, four, eight and nine shall apply
 to [physical] abuse OR MISAPPROPRIATION OF RESIDENT PROPERTY by  persons
 receiving care or services in residential health care facilities.
   11.  The  commissioner  shall adopt rules and regulations necessary to
 implement this section.
   § 2. The public health law is amended by adding a new  section  2803-v
 to read as follows:
   §  2803-V.  INDEPENDENT  QUALITY  MONITORS FOR RESIDENTIAL HEALTH CARE
 FACILITIES. THE DEPARTMENT MAY REQUIRE A RESIDENTIAL HEALTH CARE FACILI-
 TY TO CONTRACT WITH AN  INDEPENDENT  QUALITY  MONITOR  APPROVED  BY  THE
 DEPARTMENT,  PURSUANT  TO  A SELECTION PROCESS CONDUCTED NOTWITHSTANDING
 SECTIONS ONE HUNDRED TWELVE OR ONE  HUNDRED  SIXTY-THREE  OF  THE  STATE
 FINANCE LAW, FOR PURPOSES OF MONITORING THE OPERATOR'S COMPLIANCE WITH A
 CORRECTIVE PLAN AND REPORTING TO THE DEPARTMENT ON THE IMPLEMENTATION OF
 SUCH  CORRECTIVE  ACTION,  WHEN  THE  DEPARTMENT  HAS  DETERMINED IN ITS
 DISCRETION THAT OPERATIONAL DEFICIENCIES EXIST  AT  SUCH  FACILITY  THAT
 SHOW:
   1. A CONDITION OR CONDITIONS IN SUBSTANTIAL VIOLATION OF THE STANDARDS
 FOR  HEALTH,  SAFETY,  OR RESIDENT CARE ESTABLISHED IN LAW OR REGULATION
 THAT CONSTITUTE A DANGER TO RESIDENT HEALTH OR SAFETY;
   2. A PATTERN OR PRACTICE OF HABITUAL VIOLATION  OF  THE  STANDARDS  OF
 HEALTH, SAFETY, OR RESIDENT CARE ESTABLISHED IN LAW OR REGULATION; OR
   3. ANY OTHER CONDITION DANGEROUS TO RESIDENT LIFE, HEALTH, OR SAFETY.
   §  3.  The public health law is amended by adding a new section 2803-w
 to read as follows:
   § 2803-W. REQUIREMENTS RELATED TO RESIDENTIAL HEALTH  CARE  FACILITIES
 AND RELATED ASSETS. 1. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILI-
 TY  SHALL NOTIFY THE COMMISSIONER OF ANY COMMON OR FAMILIAL OWNERSHIP OF
 ANY CORPORATION OR INDIVIDUAL PROVIDING SERVICES TO THE OPERATOR.
   2. THE OPERATOR OF A RESIDENTIAL HEALTH CARE  FACILITY  SHALL,  ON  AN
 ANNUAL  BASIS,  ATTEST  TO  THE  DEPARTMENT, IN A FORM DETERMINED BY THE
 DEPARTMENT, TO THE ACCURACY OF THE INFORMATION ON FILE WITH THE  DEPART-

 S. 8394                             6
 
 MENT  REGARDING  THE OWNERSHIP OF THE LICENSED CORPORATION, REAL ESTATE,
 AND CORPORATIONS PROVIDING SERVICES TO THE OPERATOR.
   3.  THE  OPERATOR  OF A RESIDENTIAL HEALTH CARE FACILITY MAY NOT ENTER
 INTO ANY ARRANGEMENT TO GUARANTEE THE DEBT  OR  OTHER  OBLIGATION  OF  A
 PARTY WHICH HAS NOT RECEIVED ESTABLISHMENT APPROVAL.
   4. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILITY SHALL NOTIFY THE
 DEPARTMENT AT LEAST NINETY DAYS PRIOR TO EXECUTING A LETTER OF INTENT OR
 OTHER  CONTRACTUAL AGREEMENT RELATED TO THE SALE OF THE REAL PROPERTY OF
 THE FACILITY.
   5. IN ANY INSTANCE WHERE A RESIDENTIAL HEALTH CARE FACILITY IS SOLD OR
 OTHERWISE TRANSFERRED AND USED FOR A PURPOSE WHICH IS NOT A HEALTH  CARE
 PURPOSE,  THE  OPERATOR  SHALL  REMIT  TO  THE  DEPARTMENT FROM THE SALE
 PROCEEDS AN AMOUNT EQUIVALENT TO  THE  UNDEPRECIATED  VALUE  OF  CAPITAL
 ASSETS  FOR  WHICH  THE PROVIDER HAS BEEN REIMBURSED THROUGH MEDICAID OR
 OTHERWISE FUNDED WITH RESOURCES PROVIDED BY THE STATE.
   § 4. The public health law is amended by adding a new  section  2803-x
 to read as follows:
   §  2803-X.  PROVISION OF RESIDENCY AGREEMENT.  THE OPERATOR OF A RESI-
 DENTIAL HEALTH CARE FACILITY SHALL PROVIDE TO PROSPECTIVE RESIDENTS  WHO
 INQUIRE  ABOUT ADMISSION, AND POST ON ITS WEBSITE, A COPY OF THE FACILI-
 TY'S ENTIRE APPROVED RESIDENCY AGREEMENT, INCLUDING THE NON-GOVERNMENTAL
 RATES CHARGED TO RESIDENTS.
   § 5. This act shall take effect immediately.
 
                                  PART B
 
   Section 1. Subdivision 2 of section 3605-a of the public  health  law,
 as  added  by  chapter  959  of  the laws of 1984, is amended to read as
 follows:
   2. No such license shall be revoked, suspended, limited,  annulled  or
 denied  without  a  hearing.  However,  a  license  may  be  temporarily
 suspended or limited without a hearing for a period  not  in  excess  of
 thirty days upon written notice to the agency following a finding by the
 department  that  the  public  health  or  safety is in imminent danger.
 NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, NO  LICENSED  HOME  CARE
 SERVICES  AGENCY  SHALL BE PERMITTED TO OPERATE UNLESS IT HAS REGISTERED
 WITH THE DEPARTMENT PURSUANT TO SECTION  THIRTY-SIX  HUNDRED  FIVE-B  OF
 THIS ARTICLE.
   §  2.  The public health law is amended by adding a new section 3605-b
 to read as follows:
   § 3605-B. REGISTRATION OF LICENSED HOME CARE SERVICES  AGENCIES.    1.
 NOTWITHSTANDING  ANY  PROVISION OF LAW TO THE CONTRARY, NO LICENSED HOME
 CARE SERVICES AGENCY (LHCSA) LICENSED  PURSUANT  TO  SECTION  THIRTY-SIX
 HUNDRED  FIVE  OF  THIS  ARTICLE  SHALL  BE  OPERATED,  PROVIDE  NURSING
 SERVICES, HOME HEALTH AIDE  SERVICES,  OR  PERSONAL  CARE  SERVICES,  OR
 RECEIVE REIMBURSEMENT FROM ANY SOURCE FOR THE PROVISION OF SUCH SERVICES
 DURING  ANY PERIOD OF TIME ON OR AFTER JANUARY FIRST, TWO THOUSAND NINE-
 TEEN, UNLESS IT  HAS  REGISTERED  WITH  THE  COMMISSIONER  IN  A  MANNER
 PRESCRIBED BY THE DEPARTMENT. THE REQUIREMENTS OF THIS SECTION SHALL NOT
 APPLY TO HOME CARE SERVICES AGENCIES CERTIFIED PURSUANT TO SECTION THIR-
 TY-SIX HUNDRED EIGHT OF THIS ARTICLE.
   2.  A  LHCSA  THAT  FAILS TO SUBMIT A COMPLETE AND ACCURATE SET OF ALL
 REQUIRED REGISTRATION MATERIALS  BY  THE  DEADLINE  ESTABLISHED  BY  THE
 COMMISSIONER  IN  REGULATION  SHALL  BE  REQUIRED  TO  PAY A FEE OF FIVE
 HUNDRED DOLLARS FOR EACH MONTH OR PART THEREOF  THAT  THE  LHCSA  IS  IN
 DEFAULT.  A LHCSA THAT FAILED TO REGISTER IN THE PRIOR YEAR BY THE DEAD-

 S. 8394                             7

 LINE OF THE CURRENT YEAR SHALL NOT BE  PERMITTED  TO  REGISTER  FOR  THE
 UPCOMING REGISTRATION PERIOD UNLESS IT SUBMITS ANY UNPAID LATE FEES.
   3.  THE  DEPARTMENT  SHALL  POST  ON  ITS PUBLIC WEBSITE A LIST OF ALL
 LHCSAS, WHICH SHALL INDICATE THE CURRENT  REGISTRATION  STATUS  OF  EACH
 LHCSA.
   4. THE COMMISSIONER SHALL PROMULGATE SUCH RULES AND REGULATIONS AS ARE
 NECESSARY  TO  EFFECTUATE  THE PROVISIONS OF THIS SECTION INCLUDING, BUT
 NOT LIMITED TO, PRESCRIBING THE MANNER  OF  SUBMISSION  OF  REGISTRATION
 MATERIALS,  SETTING  AN  ANNUAL  DEADLINE FOR SUBMISSION OF REGISTRATION
 MATERIALS, AND ESTABLISHING OTHER REASONABLE REQUIREMENTS.
   5. THE DEPARTMENT SHALL INSTITUTE PROCEEDINGS TO REVOKE THE LICENSE OF
 ANY LHCSA THAT FAILS TO REGISTER FOR TWO  ANNUAL  REGISTRATION  PERIODS,
 WHETHER  OR  NOT SUCH PERIODS ARE CONSECUTIVE. THE DEPARTMENT SHALL HAVE
 THE DISCRETION TO PURSUE REVOCATION OF THE LICENSE OF A LCHSA ON GROUNDS
 THAT IT EVINCES A PATTERN OF LATE REGISTRATION OVER THE COURSE OF MULTI-
 PLE YEARS.
   § 3. This act shall take effect immediately.
 
                                  PART C
 
   Section 1. Paragraphs (a) and (b) of subdivision 7 of section 460-d of
 the social services law, paragraph (a) as amended by chapter 719 of  the
 laws  of  1989,  paragraph  (b) as amended by chapter 524 of the laws of
 1984 and subparagraph 2 of paragraph (b) as amended by  chapter  733  of
 the laws of 1994, are amended to read as follows:
   (a)  The  department shall adopt regulations establishing civil penal-
 ties of up to one thousand dollars per day to be  assessed  against  all
 adult  care  facilities  except facilities operated by a social services
 district for violations of (i) regulations of the department  pertaining
 to  the  care  of  residents  in  such facilities, (ii) paragraph (a) of
 subdivision three of section four hundred sixty-one-a of  this  chapter,
 or  (iii) an order issued pursuant to subdivision eight of this section;
 PROVIDED, HOWEVER, THAT CIVIL PENALTIES OF UP TO  TWO  THOUSAND  DOLLARS
 PER DAY MAY BE ASSESSED PURSUANT TO SUBPARAGRAPH TWO OF PARAGRAPH (B) OF
 THIS  SUBDIVISION.  The regulations shall specify the violations subject
 to penalty and the amount of the penalty to be  assessed  in  connection
 with  each such violation and shall specify that only civil penalties of
 up to one thousand dollars per  day  per  violation  shall  be  assessed
 pursuant  to this paragraph against an adult care facility found respon-
 sible for an act  of  retaliation  or  reprisal  against  any  resident,
 employee,  or  other  person for having filed a complaint with or having
 provided information to any long term care patient ombudsman functioning
 in accordance with section [five  hundred  forty-four  or  five  hundred
 forty-five] TWO HUNDRED EIGHTEEN of the [executive] ELDER law.
   (b) (1) In addition to any other civil or criminal penalty provided by
 law,  the  department  shall have the power to assess civil penalties in
 accordance with its regulations adopted pursuant  to  paragraph  (a)  of
 this  subdivision,  after  a  hearing  conducted  in accordance with the
 procedures established by regulations of the department. Such procedures
 shall require that notice of the time and place of the hearing, together
 with a statement of charges of violations, shall be served in person  or
 by  certified  mail addressed to the facility at least thirty days prior
 to the date of the hearing. The statement of charges of violations shall
 set forth the existence of the violations[,] AND the amount  of  penalty
 for  which  it  may  become liable [and the steps which must be taken to
 rectify the violation  and,  where  applicable,  a  statement  that  the

 S. 8394                             8

 department  contends  that a penalty may be imposed under this paragraph
 regardless of rectification]. An answer to the charges of violations, in
 writing, shall be filed with the department,  not  less  than  ten  days
 prior  to the date of hearing. The answer shall notify the department of
 the facility's position with respect to each of the  charges  and  shall
 include all matters which if not disclosed in the answer would be likely
 to take the department by surprise. The commissioner, or a member of his
 staff  who is designated and authorized by him to hold such hearing, may
 in his discretion allow the facility to prove any matter not included in
 the answer. [Where the  facility  satisfactorily  demonstrates  that  it
 either  had  rectified  the  violations  within thirty days of receiving
 written notification of  the  results  of  the  inspection  pursuant  to
 section four hundred sixty-one-a of this chapter, or had submitted with-
 in  thirty  days an acceptable plan for rectification and was rectifying
 the violations in accordance with the steps and  within  the  additional
 periods  of  time as accepted by the department in such plan, no penalty
 shall be imposed, except as provided in subparagraph two of  this  para-
 graph.]
   (2)  [Rectification  shall  not  preclude the assessment of a penalty]
 CIVIL PENALTIES OF UP TO TWO THOUSAND DOLLARS PER DAY  MAY  BE  ASSESSED
 AGAINST  ANY  ADULT  CARE  FACILITY  EXCEPT  THOSE  OPERATED BY A SOCIAL
 SERVICES DISTRICT if the department establishes  at  a  hearing  that  a
 particular  violation[,  although  corrected,] endangered or resulted in
 harm to any resident as the result of:
   (i) the total or substantial failure of the facility's fire  detection
 or  prevention systems, or emergency evacuation procedures prescribed by
 department safety standard regulations;
   (ii) the retention of any resident who has been evaluated by the resi-
 dent's physician as being medically or mentally unsuited for care in the
 facility or as requiring placement in a hospital or  residential  health
 care facility and for whom the operator is not making persistent efforts
 to secure appropriate placement;
   (iii) the failure in systemic practices and procedures;
   (iv)  the  failure  of  the  operator  to  take actions as required by
 department regulations in the event of a resident's illness or accident;
   (v) the failure of the operator to provide at all times supervision of
 residents by numbers of staff at least equivalent to the night  staffing
 requirement set forth in department regulations; or
   (vi)  unreasonable threats of retaliation or taking reprisals, includ-
 ing but not limited to unreasonable threats of eviction or  hospitaliza-
 tion  against  any  resident,  employee  or  other  person  who  makes a
 complaint concerning the operation of an adult  care  facility,  partic-
 ipates  in  the  investigation  of  a  complaint or is the subject of an
 action identified in a complaint.
   The department shall specify in its regulations those  regulations  to
 which this subparagraph two shall apply.
   (3)  In assessing penalties pursuant to this paragraph, the department
 shall consider [promptness of rectification,] delay  occasioned  by  the
 department[,]  and the specific circumstances of the violations as miti-
 gating factors.
   § 2. Paragraph (c) of subdivision 9 of section  460-d  of  the  social
 services  law  is  amended  by adding a new subparagraph (iv) to read as
 follows:
   (IV) IF THE DEPARTMENT OF HEALTH DETERMINES, BASED ON A  COMPLAINT  OR
 OTHER  FACTS  KNOWN  TO  THE DEPARTMENT, THAT THERE IS REASON TO BELIEVE
 THAT AN INDIVIDUAL OR ENTITY IS OPERATING AN ADULT HOME, ENRICHED  HOUS-

 S. 8394                             9
 
 ING  PROGRAM,  OR  RESIDENCE  FOR  ADULTS WHICH DOES NOT POSSESS A VALID
 OPERATING CERTIFICATE ISSUED BY THE DEPARTMENT, AND  THAT  ONE  OR  MORE
 CONDITIONS  OR  ACTIVITIES  AT SUCH FACILITY CONSTITUTE OR ARE LIKELY TO
 GIVE  RISE  TO  AN  IMMEDIATE DANGER TO THE HEALTH OF THE RESIDENTS, AND
 AWAITING A COURT ORDER PURSUANT TO SUBPARAGRAPH (III) OF THIS  PARAGRAPH
 WOULD  BE  SERIOUSLY  DETRIMENTAL  TO  THE HEALTH OF SUCH RESIDENTS, THE
 DEPARTMENT OF HEALTH MAY, NOTWITHSTANDING AN OBJECTION BY THE  OPERATOR,
 ADMINISTRATOR  OR  OTHER  PERSON IN CHARGE, INSPECT THE ENTIRE PREMISES,
 WHICH SHALL INCLUDE ACCESS TO ALL DWELLINGS ON THE SAID  PROPERTY  WHICH
 HOUSE TENANTS/OCCUPANTS AS WELL AS ACCESS TO SUCH TENANTS/OCCUPANTS, FOR
 THE  PURPOSE  OF ASCERTAINING WHETHER SUCH DANGER EXISTS OR IS LIKELY TO
 ARISE ON AN IMMEDIATE BASIS. THE DEPARTMENT OF HEALTH  MAY  REQUEST  THE
 ASSISTANCE  OF  LOCAL  LAW ENFORCEMENT FOR PURPOSES OF CARRYING OUT SUCH
 INSPECTION AND MAY TAKE ANY APPROPRIATE ACTION  IF  IT  DETERMINES  THAT
 SUCH  DANGER  EXISTS  OR IS LIKELY TO ARISE, INCLUDING ISSUING A WRITTEN
 NOTICE DIRECTING THE OPERATOR, ADMINISTRATOR OR OTHER PERSON  IN  CHARGE
 OF SUCH FACILITY TO CEASE OR CORRECT THE CONDITION OR ACTIVITY AT ISSUE.
 AS  PROMPTLY  AS  POSSIBLE  THEREAFTER,  WITHIN  A  PERIOD NOT TO EXCEED
 FIFTEEN DAYS, THE COMMISSIONER SHALL PROVIDE THE OPERATOR AN OPPORTUNITY
 TO BE HEARD AND TO PRESENT ANY PROOF THAT  SUCH  CONDITION  OR  ACTIVITY
 DOES  NOT  CONSTITUTE  A  DANGER  TO THE HEALTH OF THE RESIDENTS OF SUCH
 FACILITY. THE ATTORNEY  GENERAL,  UPON  REQUEST  OF  THE  DEPARTMENT  OF
 HEALTH,  SHALL BE AUTHORIZED TO APPLY TO THE SUPREME COURT IN THE COUNTY
 IN WHICH THE FACILITY IS LOCATED FOR AN ORDER FOR ANY APPROPRIATE  ADDI-
 TIONAL RELIEF.
   §  3.  Section 460-d of the social services law is amended by adding a
 new subdivision 17 to read as follows:
   17. THE DEPARTMENT OF HEALTH MAY REQUIRE THE OPERATOR OF AN ADULT HOME
 OR AN ENRICHED HOUSING PROGRAM TO CONTRACT WITH AN  INDEPENDENT  QUALITY
 MONITOR  APPROVED  BY  THE  DEPARTMENT,  PURSUANT TO A SELECTION PROCESS
 CONDUCTED NOTWITHSTANDING SECTIONS ONE HUNDRED  TWELVE  OR  ONE  HUNDRED
 SIXTY-THREE  OF  THE  STATE  FINANCE LAW, FOR PURPOSES OF MONITORING THE
 OPERATOR'S COMPLIANCE WITH  A  CORRECTIVE  PLAN  AND  REPORTING  TO  THE
 DEPARTMENT  ON  THE  IMPLEMENTATION OF SUCH CORRECTIVE ACTION, WHERE THE
 DEPARTMENT HAS DETERMINED IN ITS DISCRETION THAT  OPERATIONAL  DEFICIEN-
 CIES  EXIST AT SUCH FACILITY THAT SHOW: (A) A CONDITION OR CONDITIONS IN
 SUBSTANTIAL VIOLATION OF THE STANDARDS FOR HEALTH, SAFETY,  OR  RESIDENT
 CARE  ESTABLISHED IN LAW OR REGULATION THAT CONSTITUTE A DANGER TO RESI-
 DENT HEALTH OR SAFETY; (B) A PATTERN OR PRACTICE OF  HABITUAL  VIOLATION
 OF  THE STANDARDS OF HEALTH, SAFETY, OR RESIDENT CARE ESTABLISHED IN LAW
 OR REGULATION; OR (C) ANY OTHER CONDITION DANGEROUS  TO  RESIDENT  LIFE,
 HEALTH, OR SAFETY.
   §  4.  Subdivision  2  of section 461-a of the social services law, as
 amended by chapter 601 of the laws of 1981, paragraphs (a)  and  (c)  as
 amended  and  paragraph (d) as added by chapter 735 of the laws of 1994,
 and paragraph (e) as added by chapter 601 of the laws  of  1981  and  as
 relettered  by  chapter  735  of  the laws of 1994, is amended and a new
 subdivision 5 is added to read as follows:
   2. (a) With respect to adult  care  facilities  the  department  shall
 conduct a minimum of one unannounced inspection of each such facility to
 determine  the  adequacy of care being rendered, pursuant to the follow-
 ing:
   (1) Such facilities receiving the department's highest rating 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

 S. 8394                            10
 
 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 chap-
 ter.    Any employee of the department or a social services district who
 gives  or  causes  to  be  given  advance  notice  of  such  unannounced
 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 shall include, but shall not be limited
 to, examination 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.
   (c) An inspection report shall be made of each inspection which  shall
 clearly  identify and indicate in detail each area of operation, includ-
 ing, but not limited to, the premises,  equipment,  personnel,  resident
 care and services, and whether each such area of operation or any of its
 component  parts  is or is not in compliance with the regulations 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. [Such notifi-
 cation 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.] The  department  shall
 also  require  the  operator of an adult home 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  perform-
 ance standards, measurement of adherence to such standards and to appli-
 cable  state  and local laws and regulations, identification of perform-
 ance failures, design, and implementation of corrective action.
   (d) Systemic practices or procedures are those activities  related  to
 each area of operation which indicate a pattern or an inability to bring
 the operation of the facility into compliance with applicable provisions
 of laws and regulations.
   (e)  Nothing contained in this subdivision shall limit or restrict the
 ability of the department or social services district,  where  appropri-
 ate,  to conduct more than one inspection of an adult care facility, for
 whatever purpose, as is deemed necessary for  ensuring  compliance  with
 applicable provisions of law and regulations of the department.
   5.  WITH RESPECT TO ADULT HOMES AND ENRICHED HOUSING PROGRAMS LICENSED
 BY THE DEPARTMENT OF HEALTH, FACILITIES OTHER THAN THOSE  REFERENCED  IN
 SUBDIVISION  ONE  OF THIS SECTION AND WHICH HAVE RECEIVED THE DEPARTMENT
 OF HEALTH'S HIGHEST RATING MAY ELECT TO  OBTAIN  AND  MAINTAIN  ACCREDI-
 TATION  IN  LIEU OF THE UNANNOUNCED INSPECTION REFERENCED IN SUBDIVISION

 S. 8394                            11
 
 TWO OF THIS SECTION.  SUCH ACCREDITATION SHALL BE BY ONE OR MORE NATION-
 ALLY-RECOGNIZED ACCREDITING AGENCIES AS DETERMINED BY THE  COMMISSIONER.
 THE  DEPARTMENT  OF  HEALTH SHALL REQUIRE THAT SUCH AGENCIES REPORT DATA
 AND  INFORMATION PERTAINING TO ADULT HOMES AND ENRICHED HOUSING PROGRAMS
 WHICH ARE ACCREDITED BY SUCH AGENCIES, WHICH SEEK  AND  DO  NOT  RECEIVE
 SUCH  ACCREDITATION,  AND WHICH ATTAIN BUT LOSE SUCH ACCREDITATION, IN A
 MANNER AND FORM DETERMINED BY THE DEPARTMENT. ADULT HOMES  AND  ENRICHED
 HOUSING  PROGRAMS  WHICH ATTAIN BUT LOSE ACCREDITATION SHALL REPORT SUCH
 LOSS TO THE DEPARTMENT PROMPTLY IN A MANNER AND FORM DETERMINED  BY  THE
 DEPARTMENT OF HEALTH.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO
 OF THIS SECTION, FACILITIES RECEIVING THE DEPARTMENT OF HEALTH'S HIGHEST
 RATING  THAT  DO NOT ELECT TO ATTAIN AND MAINTAIN ACCREDITATION SHALL BE
 INSPECTED AT LEAST ONCE EVERY TWENTY-FOUR MONTHS.
   § 5. Section 461-c of the social services law is amended by  adding  a
 new subdivision 10 to read as follows:
   10. THE OPERATOR OF AN ADULT HOME OR AN ENRICHED HOUSING PROGRAM SHALL
 PROVIDE  TO PROSPECTIVE RESIDENTS WHO INQUIRE ABOUT ADMISSION, AND SHALL
 POST   ON   ITS   WEBSITE,   A   COPY   OF   THE   FACILITY'S   APPROVED
 ADMISSION/RESIDENCY AGREEMENT, INCLUDING THE RATES CHARGED TO RESIDENTS.
   §  6.  Section 461-e of the social services law is amended by adding a
 new subdivision 3-a to read as follows:
   3-A. EVERY ADULT HOME AND ENRICHED HOUSING PROGRAM SHALL:
   (A) POST IN A PROMINENT POSITION IN THE FACILITY SO AS TO BE  ACCESSI-
 BLE  TO ALL RESIDENTS AND TO THE GENERAL PUBLIC, A SUMMARY OF ANY REPORT
 OF INSPECTION BASED ON A COMPLAINT ISSUED BY THE DEPARTMENT OF HEALTH TO
 THE FACILITY WITHIN THE PREVIOUS YEAR.
   (B) PROVIDE TO ANY RESIDENT AND EACH APPLICANT FOR ADMISSION AN OPPOR-
 TUNITY TO REVIEW ANY REPORT OF INSPECTION BASED ON A COMPLAINT ISSUED BY
 THE DEPARTMENT OF HEALTH TO THE FACILITY WITHIN THE PREVIOUS YEAR.
   § 7. This act shall take effect immediately; provided that any  penal-
 ties  assessed  solely as a result of the amendments to section 460-d of
 the social services law made by section one of this act shall apply only
 to violations that occur on and after such date.
 
                                  PART D
 
   Section 1. Subdivision 1 of section 12 of the public  health  law,  as
 amended  by  section  16 of part A of chapter 58 of the laws of 2008, is
 amended to read as follows:
   1. (a) Except as provided in paragraphs (b) and (c) of  this  subdivi-
 sion,  any  person  who  violates,  disobeys  or  disregards any term or
 provision of this chapter or of any lawful notice, order  or  regulation
 pursuant  thereto  for  which a civil penalty is not otherwise expressly
 prescribed by law, shall be liable to the people  of  the  state  for  a
 civil  penalty  of  not  to exceed [two] FIVE thousand dollars for every
 such violation.
   (b) The penalty provided for in paragraph (a) of this subdivision  may
 be  increased to an amount not to exceed [five] TEN thousand dollars for
 a subsequent violation if the person committed the same violation,  with
 respect to the same or any other person or persons, within twelve months
 of  the  initial  violation for which a penalty was assessed pursuant to
 paragraph (a) of this subdivision and said  violations  were  a  serious
 threat to the health and safety of an individual or individuals.
   (c)  The penalty provided for in paragraph (a) of this subdivision may
 be increased to an amount not to exceed [ten] TWENTY thousand dollars if

 S. 8394                            12
 
 the violation directly results in serious physical harm to  any  patient
 or patients.
   (D)  Effective  on and after April first, two thousand eight the comp-
 troller is hereby authorized and directed to deposit  amounts  collected
 in excess of two thousand dollars BUT LESS THAN TEN THOUSAND DOLLARS per
 violation  to  the patient safety center account to be used for purposes
 of the patient safety center created by title  two  of  article  twenty-
 nine-D of this chapter.
   (E) EFFECTIVE ON AND AFTER APRIL FIRST, TWO THOUSAND EIGHTEEN, AMOUNTS
 COLLECTED  FROM  PROVIDERS  LICENSED UNDER ARTICLE TWENTY-EIGHT, THIRTY-
 SIX, OR FORTY OF THIS CHAPTER IN EXCESS  OF  TEN  THOUSAND  DOLLARS  PER
 VIOLATION  MAY BE USED BY THE COMMISSIONER, NOTWITHSTANDING SECTIONS ONE
 HUNDRED TWELVE OR ONE HUNDRED SIXTY-THREE OF THE STATE FINANCE LAW,  FOR
 INITIATIVES  THAT,  IN THE DISCRETION OF THE COMMISSIONER, ARE LIKELY TO
 IMPROVE THE QUALITY OF CARE OR QUALITY OF LIFE OF PATIENTS OR  RESIDENTS
 SERVED BY SUCH PROVIDERS; PROVIDED THAT AMOUNTS COLLECTED FROM PROVIDERS
 PURSUANT  TO  THIS  PARAGRAPH  MAY BE USED FOR IMPROVEMENT ACTIVITIES TO
 BENEFIT SERVICE  DELIVERY  WITHIN  THE  SAME  LICENSURE  CATEGORY.  SUCH
 PURPOSES  MAY  INCLUDE,  BUT  ARE NOT LIMITED TO, ACTIVITIES DESIGNED TO
 IMPROVE THE QUALITY, PERFORMANCE AND  COMPLIANCE  OF  POORLY  PERFORMING
 PROVIDERS;  TRAINING  AND  EDUCATING  PROVIDER STAFF; SHARING BEST PRAC-
 TICES; AND IMPROVING  PATIENT,  RESIDENT  AND  CONSUMER  INVOLVEMENT  IN
 ENSURING AND IMPROVING QUALITY OF CARE OR QUALITY OF LIFE AT FACILITIES.
   § 2. This act shall take effect immediately; provided that:
   (a)  any  penalties  available solely as a result of the amendments to
 subdivision 1 of section 12 of the public health law,  made  by  section
 one  of  this act shall apply only to violations that occur on and after
 such date; and
   (b) the amendments to subdivision 1 of section 12 of the public health
 law made by section one of this act shall not affect the  expiration  of
 such subdivision and shall be deemed to expire therewith.
   § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
 sion,  section  or  part  of  this act shall be adjudged by any court of
 competent jurisdiction to be invalid, such judgment  shall  not  affect,
 impair,  or  invalidate  the remainder thereof, but shall be confined in
 its operation to the clause, sentence, paragraph,  subdivision,  section
 or part thereof directly involved in the controversy in which such judg-
 ment shall have been rendered. It is hereby declared to be the intent of
 the  legislature  that  this  act  would  have been enacted even if such
 invalid provisions had not been included herein.
   § 3. This act shall take effect immediately, provided,  however,  that
 the  applicable effective date of Parts A through D of this act shall be
 as specifically set forth in the last section of such Parts.