S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4416
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 4, 2019
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED,  JAFFEE,  BRONSON,  STECK, GALEF,
   L. ROSENTHAL, ABINANTI, MOSLEY, BENEDETTO,  DINOWITZ,  BLAKE,  D'URSO,
   HYNDMAN,  LUPARDO  --  Multi-Sponsored  by  --  M. of A. ARROYO, COOK,
   SIMON, THIELE -- read once and referred to the Committee on Health
 
 AN ACT to amend the social services law and the mental hygiene  law,  in
   relation to violations of safety conditions in adult care facilities
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Paragraph (b) of subdivision 4 of  section  460-d  of  the
 social  services  law, as amended by chapter 733 of the laws of 1994, is
 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-
 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.
   §  2.  Subdivision  7  of section 460-d of the social services law, as
 added by chapter 669 of the laws of 1977, paragraph (a)  as  amended  by
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04051-03-9

 A. 4416                             2
 
 chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524
 of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap-
 ter 733 of the laws of 1994, is amended to read as follows:
   7.  (a)  The  department  shall  adopt  regulations establishing civil
 penalties of up to [one] FIVE thousand dollars per day PER VIOLATION  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] ARTICLE, or (iii) an order issued pursuant to subdivi-
 sion eight of this section. 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] FIVE thousand dollars  per  day  per  violation
 shall  be  assessed  pursuant  to  this  paragraph against an adult care
 facility found responsible 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, 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  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  facili-
 ty'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.
   (C)  (1) 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] ARTICLE, or had  submitted  within
 [thirty]  FOURTEEN  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] THE DEPARTMENT MAY DETERMINE THAT THE penalty  UNDER  THIS  SECTION
 shall be REDUCED FROM WHAT OTHERWISE WOULD BE imposed, OR WAIVED, except
 as  provided  in  subparagraph two of this paragraph , AND ONLY AFTER IT
 FINDS PARTICULAR CIRCUMSTANCES JUSTIFYING A REDUCTION OR WAIVER  OF  THE
 FINE, CONSIDERING:

 A. 4416                             3
 
   (I) THE CAUSE OF THE VIOLATION BEING AN ISOLATED INCIDENT AND NOT PART
 OF A PATTERN OR PRACTICE;
   (II) THE NUMBER OF RESIDENTS AFFECTED BY THE VIOLATION;
   (III) THE RISK OF HARM OR ENDANGERMENT CREATED BY THE VIOLATION;
   (IV) THE FACILITY'S HISTORY OF CITATIONS AND VIOLATIONS;
   (V)  THE  PROMPTNESS  OF RECTIFICATION, IF DELAY WAS OCCASIONED BY THE
 DEPARTMENT; AND
   (VI) THE SPECIFIC CIRCUMSTANCES OF THE VIOLATIONS.
   (2) [Rectification shall not preclude the assessment of a  penalty  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)] NO FINE SHALL BE REDUCED OR WAIVED FOR A VIOLATION THAT:
   (I) ENDANGERED ANY RESIDENT.  ENDANGERMENT IS DEFINED AS:
   (A)  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)] (B) the retention of any resident who has been evaluated by the
 resident'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)] (C) the failure in systemic practices and procedures;
   [(iv)]  (D) the failure of the operator to take actions as required by
 department regulations in the event of a resident's illness or accident;
   [(v)] (E) the failure of the operator to provide at all  times  super-
 vision of residents by numbers of staff at least equivalent to the night
 staffing requirement set forth in department regulations; or
   [(vi)]  (F)  unreasonable  threats of retaliation or taking reprisals,
 including but not limited to unreasonable threats of eviction or  hospi-
 talization  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 mitigat-
 ing factors.
   (c)];
   (II) RESULTED IN HARM TO ANY RESIDENT, INCLUDING BUT NOT LIMITED TO:
   (A) PHYSICAL INJURY;
   (B) LOSS OR DENIAL OF ACCESS TO MONEY OR OTHER PERSONAL PROPERTY; OR
   (C)  BEING  THE  OBJECT  OF WORDS OR CONDUCT THAT CONSTITUTE BULLYING,
 HARASSMENT, HUMILIATION, INFANTILIZATION, INTIMIDATION, TAUNT, RIDICULE,
 A THREAT, OR DEROGATORY COMMENT; OR
   (III) IS  A  REPEAT  VIOLATION.  REPEAT  VIOLATION  IS  DEFINED  AS  A
 VIOLATION FOR WHICH THE FACILITY WAS CITED BY THE DEPARTMENT AT ANY TIME
 IN THE PREVIOUS TWELVE MONTHS.
   (D)  Upon  the  request  of  the  department, the attorney general may
 commence an action in any court of competent  jurisdiction  against  any
 facility  subject  to  the  provisions  of this section, and against any
 person or corporation operating such facility, for the recovery  of  any
 penalty  assessed by the department in accordance with the provisions of
 this subdivision.

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   [(d)] (E) Any such penalty assessed by the department may be  released
 or  compromised  by the department, SUBJECT TO AND CONSISTENT WITH PARA-
 GRAPH (C) OF THIS SUBDIVISION, before the matter has  been  referred  to
 the  attorney  general,  and  where such matter has been referred to the
 attorney  general,  any  such penalty may be released or compromised and
 any action commenced to recover the same may be settled and discontinued
 by the attorney general, AFTER CONSIDERING PARAGRAPH (C) OF THIS  SUBDI-
 VISION AND with the consent of the department.
   §  3.  Paragraphs (a) and (b) of subdivision 9 of section 460-d of the
 social services law, paragraph (a) as amended by chapter 558 of the laws
 of 1999 and paragraph (b) as added by chapter 848 of the laws  of  1992,
 are amended to read as follows:
   (a) The department shall have authority to impose a civil penalty [not
 exceeding  one  thousand dollars per day] CONSISTENT WITH SECTION TWELVE
 OF THE PUBLIC HEALTH LAW against, and to issue an  order  requiring  the
 closing of, after notice and opportunity to be heard, any facility which
 does  not possess a valid operating certificate issued by the department
 and is an adult care facility subject to the provisions of this  article
 and  the  regulations of the department. A hearing shall be conducted in
 accordance with procedures established by department  regulations  which
 procedures  shall  require  that  notice  of  the determination that the
 facility is an adult care facility and the  reasons  for  such  determi-
 nation  and  notice  of  the  time and place of the hearing be served in
 person on the operator, owner or prime lessor, if any, or  by  certified
 mail, return receipt requested, addressed to such person and received at
 least  twenty  days  prior to the date of the hearing. If such operator,
 owner or prime lessor, if any, is not  known  to  the  department,  then
 service  may  be  made  by posting a copy thereof in a conspicuous place
 within the facility or by sending a  copy  thereof  by  certified  mail,
 return receipt requested, addressed to the facility. A written answer to
 the  notice  of violation may be filed with the department not less than
 five days prior to the date of the hearing.  Demonstration by the facil-
 ity that it possessed an operating certificate issued pursuant  to  this
 article,  article  twenty-eight  of  the  public  health  law or article
 sixteen, [twenty-three,] thirty-one or thirty-two of the mental  hygiene
 law  at  the  time the hearing was commenced shall constitute a complete
 defense to any charges made pursuant to this subdivision.
   (b) [The penalty authorized by this section shall begin to run  thirty
 days  after  the  department  provides  the operator, in writing, with a
 summary of the inspection of the facility by which the department deter-
 mined that he or she is operating an uncertified adult  care  facility.]
 The  submission  of  an  application  by  the  operator for an operating
 certificate for the facility shall not act as a bar to the imposition of
 a penalty against the operator OF AN UNLICENSED ADULT CARE FACILITY.
   § 4. 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-
 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

 A. 4416                             5
 
 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.
   §  5.  Subdivision  11 of section 460-d of the social services law, as
 amended by section 154 of subpart B of part C of chapter 62 of the  laws
 of 2011, 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]
 paragraph [(b)] (C) 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 corrections and community
 supervision and local social services districts,  and  provided  further
 that the department of health shall notify hospitals, RESIDENTIAL HEALTH
 CARE  FACILITIES AND ADULT CARE FACILITIES in the locality in which such
 facility is located that such notice has been issued. Upon resolution of
 such enforcement action the  department  shall  notify  the  appropriate
 office  of  the  department of mental hygiene, department of corrections
 and community supervision, local social services districts [and], hospi-
 tals, RESIDENTIAL HEALTH CARE FACILITIES AND ADULT CARE FACILITIES.
   § 6. 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, RESIDENTIAL HEALTH CARE FACILITIES, ADULT CARE
 FACILITIES, SOCIAL services districts and other local  government  enti-
 ties  established  pursuant  to  this  chapter  shall be prohibited from
 making referrals for admissions  to  adult  care  facilities  that  have
 received  official  written  notice  regarding: the proposed revocation,
 suspension or denial of the operator's operating certificate; the  limi-
 tation  of the operating certificate with respect to new admissions; the
 issuance of department order or commissioner'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)]  (C)  of subdivision seven of this section; or the

 A. 4416                             6
 
 facility's placement on the "do not refer list" pursuant to  subdivision
 fifteen of this section.
   §  7.  Section 460-d of the social services law is amended by adding a
 new subdivision 18 to read as follows:
   18. WHEN THE DEPARTMENT OF HEALTH ISSUES OFFICIAL WRITTEN NOTICE TO AN
 OPERATOR 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 THAT 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.
   § 8. 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.
   §  9.  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] OF this subdivision by a
 resident of an adult care facility OR BY THE RESIDENT'S LEGAL  REPRESEN-
 TATIVE  OR  RESIDENT  REPRESENTATIVE,  WITH  RESPECT TO A RESIDENT OF AN
 ADULT HOME, RESIDENCE FOR ADULTS OR ENRICHED HOUSING PROGRAM,  shall  be
 void.
   §  10. 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.
   § 11. Paragraphs (a), (b) and (c) of subdivision 2 of section 461-a of
 the social services law, paragraphs (a) and (c) 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-

 A. 4416                             7
 
 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.
   (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-
 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] MAY 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,  meas-
 urement of adherence to such standards and to applicable state and local
 laws  and  regulations,  identification of performance failures, design,
 and implementation of corrective action.
   § 12. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i)  of
 section  29.15  of  the mental hygiene law, as amended by chapter 168 of
 the laws of 2010, 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 for people with
 developmental disabilities or from an  inpatient  facility  operated  or
 licensed by the office of 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 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 operated by the office for people with

 A. 4416                             8
 
 developmental disabilities or for an inpatient facility operated by  the
 office  of  alcoholism  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 possible or appropriate.
   (II) No patient about to be discharged or conditionally released  from
 a department facility licensed or operated by the office for people with
 developmental  disabilities  or  from  an inpatient facility operated or
 licensed by the office of 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 official  written  notice
 from  the  department of health of: (A) the proposed revocation, suspen-
 sion 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)]  (C)  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.
   § 13. Severability clause. If any provision of this act, or any appli-
 cation of any provision of this act,  is  held  to  be  invalid,  or  to
 violate  or  be  inconsistent  with  any federal law or regulation, that
 shall not affect the validity or effectiveness of any other provision of
 this act, which can be given effect without that provision  or  applica-
 tion;  and  to that end, the provisions and applications of this act are
 severable.
   § 14. This act shall take effect on the ninetieth day after  it  shall
 have  become  a  law.  Effective immediately, the commissioner of health
 shall make regulations and take other  actions  necessary  to  implement
 this act on that date.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4416--A
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 4, 2019
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED,  JAFFEE,  BRONSON,  STECK, GALEF,
   L. ROSENTHAL, ABINANTI, MOSLEY, BENEDETTO,  DINOWITZ,  BLAKE,  D'URSO,
   HYNDMAN, LUPARDO, SAYEGH, SALKA, BARRON -- Multi-Sponsored by -- M. of
   A.  ARROYO,  COOK,  SIMON,  THIELE  --  read  once and referred to the
   Committee on Health -- committee  discharged,  bill  amended,  ordered
   reprinted as amended and recommitted to said committee
 
 AN  ACT  to amend the social services law and the mental hygiene law, in
   relation to violations of safety conditions in adult care facilities
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Paragraph  (b) of subdivision 4 of section 460-d of the
 social services law, as amended by chapter 733 of the laws of  1994,  is
 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-
 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  DEMONSTRATES 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
 DEPARTMENT  TO  EXTEND  THE  PERIOD  OF  SUSPENSION OR LIMITATION FOR AN
 APPROPRIATE PERIOD OF TIME, BUT IN NO EVENT BEYOND AN ADDITIONAL  THIRTY
 DAYS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04051-06-9

 A. 4416--A                          2
 
   §  2.  Subdivision  7  of section 460-d of the social services law, as
 added by chapter 669 of the laws of 1977, paragraph (a)  as  amended  by
 chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524
 of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap-
 ter 733 of the laws of 1994, is amended to read as follows:
   7.  (a)  The  department  shall  adopt  regulations establishing civil
 penalties of up to [one] TWO thousand dollars  per  day  PER  VIOLATION,
 AND, FOR IDENTICAL REPEAT VIOLATIONS OCCURRING WITHIN TWELVE MONTHS OF A
 VIOLATION FOR WHICH A PENALTY WAS ASSESSED, UP TO THREE THOUSAND DOLLARS
 PER  DAY  PER VIOLATION 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] ARTICLE, or  (iii)  an  order
 issued  pursuant  to  subdivision eight of this section. 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]  TWO  thousand  dollars
 per  day  per  violation  shall  be  assessed pursuant to this paragraph
 against an adult care facility found responsible for an act  of  retali-
 ation  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 EIGH-
 TEEN 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, 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 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 facili-
 ty'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.
   (C) (1) 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] ARTICLE, or had submitted within
 thirty days an acceptable plan for rectification and was rectifying  the
 violations  in accordance with the steps and within the additional peri-
 ods of time as accepted by the department in such plan, [no] THE DEPART-
 MENT SHALL DETERMINE THAT  THE  penalty  UNDER  THIS  SECTION  shall  be
 REDUCED  FROM  WHAT  OTHERWISE  WOULD  BE  imposed, OR WAIVED, except as

 A. 4416--A                          3
 
 provided in subparagraph two of this paragraph.   THE  DEPARTMENT  SHALL
 REDUCE  THE PENALTY UNDER THIS PARAGRAPH, IF IT FINDS TWO OF THE FOLLOW-
 ING MITIGATING CIRCUMSTANCES, AND IT MAY WAIVE THE  PENALTY  UNDER  THIS
 PARAGRAPH IF IT FINDS THREE OF THE FOLLOWING MITIGATING CIRCUMSTANCES:
   (I)  THE  CAUSE  OF  THE VIOLATION IS NOT A WIDESPREAD OR CHRONIC, AND
 MATERIAL, NONCOMPLIANCE WITH STATUTORY OR REGULATORY REQUIREMENTS;
   (II) FEWER THAN THREE RESIDENTS WERE MATERIALLY AND DIRECTLY  AFFECTED
 BY THE VIOLATION;
   (III)  THE  FACILITY  HAS  NOT  BEEN ASSESSED A CIVIL PENALTY NOR BEEN
 CITED FOR MORE THAN FIFTEEN VIOLATIONS IN THE  THIRTY  MONTHS  PRECEDING
 THE VIOLATION; OR
   (IV)  THE FACILITY CORRECTED THE VIOLATION WITHIN FOURTEEN DAYS, OR IF
 DELAY OF RECTIFICATION WAS OCCASIONED BY THE DEPARTMENT OR WAS  NOT  THE
 FAULT OF THE FACILITY, IT CORRECTED THE VIOLATION PROMPTLY THEREAFTER.
   (2)  [Rectification  shall not preclude the assessment of a penalty 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)] NO FINE SHALL BE REDUCED OR WAIVED FOR A VIOLATION THAT:
   (I) ENDANGERED ANY RESIDENT.  ENDANGERMENT IS DEFINED AS:
   (A) 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)] (B) the retention of any resident who has been evaluated by the
 resident'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)] (C) the failure in systemic  practices  and  procedures  WHICH
 SHALL  BE  DEFINED AS WIDESPREAD OR CHRONIC, AND MATERIAL, NONCOMPLIANCE
 WITH STATUTORY OR REGULATORY REQUIREMENTS;
   [(iv)] (D) the failure of the operator to PROTECT THE  SAFETY  OF  THE
 RESIDENTS,  OR take actions as required by department regulations in the
 event of a resident's illness or accident;
   [(v)] (E) the failure of the operator to provide at all  times  super-
 vision of residents by numbers of staff at least equivalent to the night
 staffing requirement set forth in department regulations; or
   [(vi)]  (F)  unreasonable  threats of retaliation or taking reprisals,
 including but not limited to unreasonable threats of eviction or  hospi-
 talization  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 mitigat-
 ing factors.
   (c)];
   (II) RESULTED IN HARM TO ANY RESIDENT, INCLUDING BUT NOT LIMITED TO:
   (A) PHYSICAL HARM;
   (B) LOSS OR DENIAL OF ACCESS TO MONEY OR OTHER PERSONAL PROPERTY; OR
   (C)  BEING  THE  OBJECT  OF WORDS OR CONDUCT THAT CONSTITUTE BULLYING,
 HARASSMENT, HUMILIATION, INFANTILIZATION, INTIMIDATION, TAUNT, RIDICULE,
 OR A THREAT; OR

 A. 4416--A                          4
 
   (III) IS  A  REPEAT  VIOLATION.  REPEAT  VIOLATION  IS  DEFINED  AS  A
 VIOLATION FOR WHICH THE FACILITY WAS CITED BY THE DEPARTMENT AT ANY TIME
 IN THE PREVIOUS TWELVE MONTHS.
   (D)  Upon  the  request  of  the  department, the attorney general may
 commence an action in any court of competent  jurisdiction  against  any
 facility  subject  to  the  provisions  of this section, and against any
 person or corporation operating such facility, for the recovery  of  any
 penalty  assessed by the department in accordance with the provisions of
 this subdivision.
   [(d)] (E) Any such penalty assessed by the department may be  released
 or  compromised  by the department, SUBJECT TO AND CONSISTENT WITH PARA-
 GRAPH (C) OF THIS SUBDIVISION, before the matter has  been  referred  to
 the  attorney  general,  and  where such matter has been referred to the
 attorney general, any such penalty may be released  or  compromised  and
 any action commenced to recover the same may be settled and discontinued
 by  the attorney general, AFTER CONSIDERING PARAGRAPH (C) OF THIS SUBDI-
 VISION AND with the consent of the department.
   § 3. Paragraphs (a) and (b) of subdivision 9 of section 460-d  of  the
 social services law, paragraph (a) as amended by chapter 558 of the laws
 of  1999  and paragraph (b) as added by chapter 848 of the laws of 1992,
 are amended to read as follows:
   (a) The department shall have authority to impose a civil penalty [not
 exceeding one thousand dollars per day] CONSISTENT WITH  SECTION  TWELVE
 OF  THE  PUBLIC  HEALTH LAW against, and to issue an order requiring the
 closing of, after notice and opportunity to be heard, any facility which
 does not possess a valid operating certificate issued by the  department
 and  is an adult care facility subject to the provisions of this article
 and the regulations of the department. A hearing shall be  conducted  in
 accordance  with  procedures established by department regulations which
 procedures shall require that  notice  of  the  determination  that  the
 facility  is  an  adult  care facility and the reasons for such determi-
 nation and notice of the time and place of  the  hearing  be  served  in
 person  on  the operator, owner or prime lessor, if any, or by certified
 mail, return receipt requested, addressed to such person and received at
 least twenty days prior to the date of the hearing.  If  such  operator,
 owner  or  prime  lessor,  if  any, is not known to the department, then
 service may be made by posting a copy thereof  in  a  conspicuous  place
 within  the  facility  or  by  sending a copy thereof by certified mail,
 return receipt requested, addressed to the facility. A written answer to
 the notice of violation may be filed with the department not  less  than
 five days prior to the date of the hearing.  Demonstration by the facil-
 ity  that  it possessed an operating certificate issued pursuant to this
 article, article twenty-eight  of  the  public  health  law  or  article
 sixteen,  [twenty-three,] thirty-one or thirty-two of the mental hygiene
 law at the time the hearing was commenced shall  constitute  a  complete
 defense to any charges made pursuant to this subdivision.
   (b)  [The penalty authorized by this section shall begin to run thirty
 days after the department provides the  operator,  in  writing,  with  a
 summary of the inspection of the facility by which the department deter-
 mined  that  he or she is operating an uncertified adult care facility.]
 The submission of an  application  by  the  operator  for  an  operating
 certificate for the facility shall not act as a bar to the imposition of
 a penalty against the operator OF AN UNLICENSED ADULT CARE FACILITY.
   §  4.  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:

 A. 4416--A                          5
 
   (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-
 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.
   §  5.  Subdivision  11 of section 460-d of the social services law, as
 amended by section 154 of subpart B of part C of chapter 62 of the  laws
 of 2011, 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] paragraph [(b)] (C) of subdivision seven of this section  or  place-
 ment  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 corrections and communi-
 ty supervision and local social services districts, and provided further
 that the department of health shall notify hospitals, RESIDENTIAL HEALTH
 CARE FACILITIES AND ADULT CARE FACILITIES in the locality in which  such
 facility is located that such notice has been issued. Upon resolution of
 such  enforcement action the department shall WITHIN TEN DAYS notify the
 appropriate office of the department of mental  hygiene,  department  of
 corrections  and  community supervision, local social services districts
 [and], hospitals, RESIDENTIAL HEALTH  CARE  FACILITIES  AND  ADULT  CARE
 FACILITIES.
   §  6.  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, RESIDENTIAL HEALTH CARE FACILITIES, ADULT CARE
 FACILITIES,  SOCIAL  services districts and other local government enti-

 A. 4416--A                          6
 
 ties established pursuant to  this  chapter  shall  be  prohibited  from
 making  referrals  for  admissions  to  adult  care facilities that have
 received official written notice  regarding:  the  proposed  revocation,
 suspension  or denial of the operator's operating certificate; the limi-
 tation of the operating certificate with respect to new admissions;  the
 issuance  of  department  order or commissioner'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.
   § 7. Section 460-d of the social services law is amended by  adding  a
 new subdivision 18 to read as follows:
   18. WHEN THE DEPARTMENT OF HEALTH ISSUES OFFICIAL WRITTEN NOTICE TO AN
 OPERATOR  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 THAT 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.
   §  8.  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.
   § 9. 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] OF this  subdivision  by  a
 resident  of an adult care facility OR BY THE RESIDENT'S LEGAL REPRESEN-
 TATIVE OR RESIDENT REPRESENTATIVE, WITH RESPECT  TO  A  RESIDENT  OF  AN
 ADULT  HOME,  RESIDENCE FOR ADULTS OR ENRICHED HOUSING PROGRAM, shall be
 void.
   § 10. 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:
   (I) A SUMMARY OF ANY REPORT OF INSPECTION BASED ON A COMPLAINT  ISSUED
 BY  THE  DEPARTMENT  OF  HEALTH TO THE FACILITY WITHIN THE PREVIOUS YEAR
 WHICH RESULTED IN THE PAYMENT OF A FINE OR PENALTY BY THE FACILITY; AND
   (II) NOTICE OF RESIDENTS' RIGHT TO REVIEW REPORTS UNDER PARAGRAPH  (B)
 OF THIS SUBDIVISION.
   (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.
   (C)  PROVIDE  TO  THE  RESIDENT  COUNCIL  A  SUMMARY  OF ANY REPORT OF
 INSPECTION BASED ON A COMPLAINT ISSUED BY THE DEPARTMENT OF HEALTH WITH-
 IN FOURTEEN DAYS  OF RECEIPT BY THE FACILITY.
   § 11. Paragraphs (a), (b) and (c) of subdivision 2 of section 461-a of
 the social services law, paragraphs (a) and (c) 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. 4416--A                          7
 
   (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.
   (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-
 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 appli-
 cable 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, meas-

 A. 4416--A                          8
 
 urement of adherence to such standards and to applicable state and local
 laws and regulations, identification of  performance  failures,  design,
 and implementation of corrective action.
   §  12. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of
 section 29.15 of the mental hygiene law, as amended by  chapter  168  of
 the laws of 2010, 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 for  people  with
 developmental  disabilities  or  from  an inpatient facility operated or
 licensed by the office of 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 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 operated by the office for people with
 developmental  disabilities or for an inpatient facility operated by the
 office of alcoholism 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 possible or appropriate.
   (II)  No patient about to be discharged or conditionally released from
 a department facility licensed or operated by the office for people with
 developmental disabilities or from an  inpatient  facility  operated  or
 licensed by the office of 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 official written notice
 from the department of health of: (A) the proposed  revocation,  suspen-
 sion  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)] (C) 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.
   § 13. Severability clause. If any provision of this act, or any appli-
 cation  of  any  provision  of  this  act,  is held to be invalid, or to
 violate or be inconsistent with any  federal  law  or  regulation,  that
 shall not affect the validity or effectiveness of any other provision of
 this  act,  which can be given effect without that provision or applica-
 tion; and to that end, the provisions and applications of this  act  are
 severable.
   §  14.  This act shall take effect on the ninetieth day after it shall
 have become a law. Effective immediately,  the  commissioner  of  health
 shall  make  regulations  and  take other actions necessary to implement
 this act on that date.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4416--B
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 4, 2019
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED,  JAFFEE,  BRONSON,  STECK, GALEF,
   L. ROSENTHAL, ABINANTI, MOSLEY, BENEDETTO,  DINOWITZ,  BLAKE,  D'URSO,
   HYNDMAN, LUPARDO, SAYEGH, SALKA, BARRON -- Multi-Sponsored by -- M. of
   A.  ARROYO,  COOK,  SIMON,  THIELE  --  read  once and referred to the
   Committee on Health -- committee  discharged,  bill  amended,  ordered
   reprinted  as  amended  and recommitted to said committee -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN ACT to amend the social services law and the mental hygiene  law,  in
   relation to violations of safety conditions in adult care facilities
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Paragraph (b) of subdivision 4 of  section  460-d  of  the
 social  services  law, as amended by chapter 733 of the laws of 1994, is
 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-
 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 DEMONSTRATES 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
 DEPARTMENT TO EXTEND THE PERIOD  OF  SUSPENSION  OR  LIMITATION  FOR  AN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04051-08-9

 A. 4416--B                          2
 
 APPROPRIATE  PERIOD OF TIME, BUT IN NO EVENT BEYOND AN ADDITIONAL THIRTY
 DAYS.
   §  2.  Subdivision  7  of section 460-d of the social services law, as
 added by chapter 669 of the laws of 1977, paragraph (a)  as  amended  by
 chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524
 of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap-
 ter 733 of the laws of 1994, is amended to read as follows:
   7.  (a)  The  department  shall  adopt  regulations establishing civil
 penalties of up to [one] TWO thousand dollars  per  day  PER  VIOLATION,
 AND, FOR IDENTICAL REPEAT VIOLATIONS OCCURRING WITHIN TWELVE MONTHS OF A
 VIOLATION FOR WHICH A PENALTY WAS ASSESSED, UP TO THREE THOUSAND DOLLARS
 PER  DAY  PER VIOLATION 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] ARTICLE, or  (iii)  an  order
 issued  pursuant  to  subdivision eight of this section. 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]  TWO  thousand  dollars
 per  day  per  violation  shall  be  assessed pursuant to this paragraph
 against an adult care facility found responsible for an act  of  retali-
 ation  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 EIGH-
 TEEN 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, 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 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 facili-
 ty'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.
   (C) (1) 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] ARTICLE, or had submitted within
 thirty days an acceptable plan for rectification and was rectifying  the
 violations  in accordance with the steps and within the additional peri-

 A. 4416--B                          3
 
 ods of time as accepted by the department in such plan, no penalty shall
 be imposed, except as provided in subparagraph two of this paragraph.
   (2)  Rectification  shall  not preclude the assessment of a penalty 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) ENDANGERED ANY RESIDENT. ENDANGERMENT IS DEFINED AS:
   (A) 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)] (B) the retention of any resident who has been evaluated by the
 resident'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)] (C) the failure in systemic  practices  and  procedures  WHICH
 SHALL  BE  DEFINED AS WIDESPREAD OR CHRONIC, AND MATERIAL, NONCOMPLIANCE
 WITH STATUTORY OR REGULATORY REQUIREMENTS;
   [(iv)] (D) the failure of the operator to PROTECT THE HEALTH AND SAFE-
 TY OF THE RESIDENTS, OR take actions as  required  by  department  regu-
 lations in the event of a resident's illness or accident;
   [(v)]  (E)  the failure of the operator to provide at all times super-
 vision of residents by numbers of staff at least equivalent to the night
 staffing requirement set forth in department regulations; or
   [(vi)] (F) unreasonable threats of retaliation  or  taking  reprisals,
 including  but not limited to unreasonable threats of eviction or hospi-
 talization 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 mitigat-
 ing factors.
   (c)];
   (II) RESULTED IN HARM TO ANY RESIDENT, INCLUDING BUT NOT LIMITED TO:
   (A) PHYSICAL HARM;
   (B) LOSS OR DENIAL OF ACCESS TO MONEY OR OTHER PERSONAL PROPERTY; OR
   (C) BEING THE OBJECT OF WORDS OR  CONDUCT  THAT  CONSTITUTE  BULLYING,
 HARASSMENT, HUMILIATION, INFANTILIZATION, INTIMIDATION, TAUNT, RIDICULE,
 OR A THREAT; OR
   (III) IS AN IDENTICAL REPEAT VIOLATION. REPEAT VIOLATION IS DEFINED AS
 A  VIOLATION  OF THE SAME PROVISION OF REGULATION FOR WHICH THE FACILITY
 WAS CITED BY THE DEPARTMENT AT ANY TIME IN THE PREVIOUS TWELVE MONTHS.
   (D) 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 MITIGAT-
 ING FACTORS.
   (E) Upon the request of  the  department,  the  attorney  general  may
 commence  an  action  in any court of competent jurisdiction against any
 facility subject to the provisions of  this  section,  and  against  any
 person  or  corporation operating such facility, for the recovery of any
 penalty assessed by the department in accordance with the provisions  of
 this subdivision.

 A. 4416--B                          4
 
   [(d)]  (F) Any such penalty assessed by the department may be released
 or compromised by the department, SUBJECT TO AND CONSISTENT  WITH  PARA-
 GRAPH  (C)  OF  THIS SUBDIVISION, before the matter has been referred to
 the attorney general, and where such matter has  been  referred  to  the
 attorney  general,  any  such penalty may be released or compromised and
 any action commenced to recover the same may be settled and discontinued
 by the attorney general, AFTER CONSIDERING PARAGRAPH (C) OF THIS  SUBDI-
 VISION AND with the consent of the department.
   §  3.  Paragraphs (a) and (b) of subdivision 9 of section 460-d of the
 social services law, paragraph (a) as amended by chapter 558 of the laws
 of 1999 and paragraph (b) as added by chapter 848 of the laws  of  1992,
 are amended to read as follows:
   (a) The department shall have authority to impose a civil penalty [not
 exceeding  one  thousand dollars per day] CONSISTENT WITH SECTION TWELVE
 OF THE PUBLIC HEALTH LAW against, and to issue an  order  requiring  the
 closing of, after notice and opportunity to be heard, any facility which
 does  not possess a valid operating certificate issued by the department
 and is an adult care facility subject to the provisions of this  article
 and  the  regulations of the department. A hearing shall be conducted in
 accordance with procedures established by department  regulations  which
 procedures  shall  require  that  notice  of  the determination that the
 facility is an adult care facility and the  reasons  for  such  determi-
 nation  and  notice  of  the  time and place of the hearing be served in
 person on the operator, owner or prime lessor, if any, or  by  certified
 mail, return receipt requested, addressed to such person and received at
 least  twenty  days  prior to the date of the hearing. If such operator,
 owner or prime lessor, if any, is not  known  to  the  department,  then
 service  may  be  made  by posting a copy thereof in a conspicuous place
 within the facility or by sending a  copy  thereof  by  certified  mail,
 return receipt requested, addressed to the facility. A written answer to
 the  notice  of violation may be filed with the department not less than
 five days prior to the date of the hearing.  Demonstration by the facil-
 ity that it possessed an operating certificate issued pursuant  to  this
 article,  article  twenty-eight  of  the  public  health  law or article
 sixteen, [twenty-three,] thirty-one or thirty-two of the mental  hygiene
 law  at  the  time the hearing was commenced shall constitute a complete
 defense to any charges made pursuant to this subdivision.
   (b) [The penalty authorized by this section shall begin to run  thirty
 days  after  the  department  provides  the operator, in writing, with a
 summary of the inspection of the facility by which the department deter-
 mined that he or she is operating an uncertified adult  care  facility.]
 The  submission  of  an  application  by  the  operator for an operating
 certificate for the facility shall not act as a bar to the imposition of
 a penalty against the operator OF AN UNLICENSED ADULT CARE FACILITY.
   § 4. 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-
 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

 A. 4416--B                          5
 
 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.
   §  5.  Subdivision  11 of section 460-d of the social services law, as
 amended by section 154 of subpart B of part C of chapter 62 of the  laws
 of 2011, 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] paragraph [(b)] (C) of subdivision seven of this section  or  place-
 ment  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 corrections and communi-
 ty supervision and local social services districts, and provided further
 that the department of health shall notify hospitals, RESIDENTIAL HEALTH
 CARE FACILITIES AND ADULT CARE FACILITIES in the locality in which  such
 facility is located that such notice has been issued. Upon resolution of
 such  enforcement action the department shall WITHIN TEN DAYS notify the
 appropriate office of the department of mental  hygiene,  department  of
 corrections  and  community supervision, local social services districts
 [and], hospitals, RESIDENTIAL HEALTH  CARE  FACILITIES  AND  ADULT  CARE
 FACILITIES.
   §  6.  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, RESIDENTIAL HEALTH CARE FACILITIES, ADULT CARE
 FACILITIES,  SOCIAL  services districts and other local government enti-
 ties established pursuant to  this  chapter  shall  be  prohibited  from
 making  referrals  for  admissions  to  adult  care facilities that have
 received official written notice  regarding:  the  proposed  revocation,
 suspension  or denial of the operator's operating certificate; the limi-
 tation of the operating certificate with respect to new admissions;  the
 issuance  of  department  order or commissioner'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

 A. 4416--B                          6
 
 placement  on the "do not refer list" pursuant to subdivision fifteen of
 this section.
   §  7.  Section 460-d of the social services law is amended by adding a
 new subdivision 18 to read as follows:
   18. WHEN THE DEPARTMENT OF HEALTH ISSUES OFFICIAL WRITTEN NOTICE TO AN
 OPERATOR 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 THAT 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.
   § 8. 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.
   §  9.  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] OF this subdivision by a
 resident of an adult care facility OR BY THE RESIDENT'S LEGAL  REPRESEN-
 TATIVE  OR  RESIDENT  REPRESENTATIVE,  WITH  RESPECT TO A RESIDENT OF AN
 ADULT HOME, RESIDENCE FOR ADULTS OR ENRICHED HOUSING PROGRAM,  shall  be
 void.
   §  10. 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:
   (I)  A SUMMARY OF ANY REPORT OF INSPECTION BASED ON A COMPLAINT ISSUED
 BY THE DEPARTMENT OF HEALTH TO THE FACILITY  WITHIN  THE  PREVIOUS  YEAR
 WHICH RESULTED IN THE PAYMENT OF A FINE OR PENALTY BY THE FACILITY; AND
   (II)  NOTICE OF RESIDENTS' RIGHT TO REVIEW REPORTS UNDER PARAGRAPH (B)
 OF THIS SUBDIVISION.
   (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.
   (C) PROVIDE TO THE  RESIDENT  COUNCIL  A  SUMMARY  OF  ANY  REPORT  OF
 INSPECTION BASED ON A COMPLAINT ISSUED BY THE DEPARTMENT OF HEALTH WITH-
 IN FOURTEEN DAYS  OF RECEIPT BY THE FACILITY.
   § 11. Paragraphs (a), (b) and (c) of subdivision 2 of section 461-a of
 the  social  services  law, paragraphs (a) and (c) 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

 A. 4416--B                          7
 
 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.
   (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-
 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 appli-
 cable 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, meas-
 urement of adherence to such standards and to applicable state and local
 laws and regulations, identification of  performance  failures,  design,
 and implementation of corrective action.
   §  12. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of
 section 29.15 of the mental hygiene law, as amended by  chapter  168  of
 the laws of 2010, 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 for  people  with
 developmental  disabilities  or  from  an inpatient facility operated or
 licensed by the office of alcoholism and substance abuse services or the

 A. 4416--B                          8
 
 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 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 operated by the office for people with
 developmental disabilities or for an inpatient facility operated by  the
 office  of  alcoholism  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 possible or appropriate.
   (II) No patient about to be discharged or conditionally released  from
 a department facility licensed or operated by the office for people with
 developmental  disabilities  or  from  an inpatient facility operated or
 licensed by the office of 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 official  written  notice
 from  the  department of health of: (A) the proposed revocation, suspen-
 sion 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)]  (C)  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.
   § 13. Severability clause. If any provision of this act, or any appli-
 cation of any provision of this act,  is  held  to  be  invalid,  or  to
 violate  or  be  inconsistent  with  any federal law or regulation, that
 shall not affect the validity or effectiveness of any other provision of
 this act, which can be given effect without that provision  or  applica-
 tion;  and  to that end, the provisions and applications of this act are
 severable.
   § 14. This act shall take effect on the ninetieth day after  it  shall
 have  become  a  law.  Effective immediately, the commissioner of health
 shall make regulations and take other  actions  necessary  to  implement
 this act on that date.