S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4757--A
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 5, 2019
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED  --  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 public health law, in relation to enhancing trans-
   parency and oversight of residential health care facilities

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   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
 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 PROP-
 ERTY 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, AND
 ANY  OTHER  PERSON  WHO,  is  under  contract  [to  provide patient care
 services in] WITH such facility, and  any  nursing  home  administrator,
 physician,  medical  examiner,  coroner, physician's associate, special-
 ist's assistant, osteopath, chiropractor,  physical  therapist,  occupa-
 tional  therapist,  registered  professional  nurse,  licensed practical
 nurse,  dentist,  podiatrist,  optometrist,  pharmacist,   psychologist,
 licensed  master  social worker, licensed clinical social worker, speech
 pathologist and audiologist.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07386-03-9

 A. 4757--A                          2
 
   2. In addition to those persons required to  report  suspected  [phys-
 ical] abuse, mistreatment [or], neglect OR MISAPPROPRIATION OF THE PROP-
 ERTY  of  persons  receiving care or services in residential health care
 facilities, any other person may make such a report if  he  or  she  has
 reasonable cause to believe that a person receiving care or services has
 been [physically] abused, mistreated [or], neglected OR SUBJECTED TO THE
 MISAPPROPRIATION OF PROPERTY in the facility.
   3.  Reports  of suspected [physical] abuse, mistreatment [or], neglect
 OR THE MISAPPROPRIATION OF PROPERTY made pursuant to this section  shall
 be made immediately by telephone and in writing within forty-eight hours
 to  the department.   THE DEPARTMENT SHALL PROVIDE FORMS, WHICH SHALL BE
 AVAILABLE TO BE DOWNLOADED FROM THE DEPARTMENT'S WEBSITE, WHICH MAY  BE,
 BUT ARE NOT REQUIRED TO BE, USED FOR MAKING THE WRITTEN REPORTS. 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  residen-
 tial  health  care facility; the names of the operator and administrator
 of the facility, if known; the name of the subject of the alleged [phys-
 ical] abuse, mistreatment [or], neglect OR MISAPPROPRIATION OF PROPERTY,
 if known; the nature and extent of the  [physical]  abuse,  mistreatment
 [or],  neglect  OR  MISAPPROPRIATION  OF  PROPERTY;  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 OF PROPERTY, if known; and any other  infor-
 mation  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 relat-
 ing to [physical] abuse, mistreatment [or], neglect OR  MISAPPROPRIATION
 OF  PROPERTY of persons receiving care or services in residential health
 care facilities. Written reports made other than on  forms  supplied  by
 the  commissioner 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
 PROPERTY  of  persons  receiving  care or services in residential health
 care facilities shall be presumed.
   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 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 MISAPPRO-
 PRIATION OF 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.  AT ANY TIME, IF THE DEPARTMENT DETERMINES THAT THERE
 IS A REASONABLE BELIEF THAT A REPORTED ALLEGATION MAY CONSTITUTE A CRIME

 A. 4757--A                          3
 
 UNDER  THE  LAWS  OF  THE  STATE  OF  NEW YORK OR THE UNITED STATES, THE
 DEPARTMENT SHALL NOTIFY THE  APPROPRIATE  LAW  ENFORCEMENT  OFFICIAL  OR
 AUTHORITY.  Prior  to the completion of the investigation by the depart-
 ment,  [every]  reasonable effort shall be made to notify, personally or
 by certified mail, any person under investigation for  having  committed
 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], mistreat-
 ment  OR  MISAPPROPRIATION  OF PROPERTY. A copy of such written determi-
 nation, 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
 PROPERTY. 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  allega-
 tions  relating  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 MISAPPROPRI-
 ATION 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]  SEALED  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] SEALED, the commissioner shall notify any  official  notified
 pursuant  to  paragraph (a) of this subdivision that the information has
 been [expunged] SEALED.
   (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 PROPERTY, or as having failed
 to report such an incident, may request in writing that the commissioner
 amend or [expunge] SEAL 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]  SEALED  on  the grounds that the record is inaccurate or the
 determination is not supported by the evidence. The burden of  proof  in
 such  hearing  shall  be  on  the  department.  Whenever  information is
 [expunged] SEALED, the commissioner shall notify any  official  notified

 A. 4757--A                          4
 
 pursuant  to  paragraph (a) of this subdivision that the information has
 been [expunged] SEALED.
   (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] SEALING 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
 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
 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  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
 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  PROPERTY of a person receiving care or services in a residen-
 tial health care facility.   The  supreme  court  may  grant  injunctive
 relief  to any person subject to such retaliation or discrimination. Any

 A. 4757--A                          5
 
 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 AND MISAPPRO-
 PRIATION OF PROPERTY of persons receiving care or services  in  residen-
 tial  health  care  facilities.  No  INDIVIDUAL  IDENTIFYING information
 concerning any individual [or facility] SUBJECTED  TO  ABUSE,  MISTREAT-
 MENT,  NEGLECT  OR  MISAPPROPRIATION OF PROPERTY shall be disclosed in a
 report made pursuant to this subdivision, or in any other report, except
 information which would be available 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] SEALING 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 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-w
 to read as follows:
   §  2803-W.  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  SELECTED,  AND  ON
 REASONABLE  TERMS DETERMINED, 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 WRITTEN AND MANDATORY CORRECTIVE PLAN
 AND REPORTING TO THE DEPARTMENT ON THE IMPLEMENTATION OF SUCH CORRECTIVE
 ACTION, WHEN THE DEPARTMENT HAS DETERMINED IN ITS DISCRETION THAT OPERA-
 TIONAL 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.
 SUCH  WRITTEN  MANDATORY CORRECTIVE PLANS SHALL INCLUDE CAPS ON ADMINIS-
 TRATIVE AND GENERAL COSTS THAT ARE UNRELATED TO  PROVIDING  DIRECT  CARE
 (INCLUDING  PROVIDING  AT LEAST MINIMUM STAFFING LEVELS AS DETERMINED BY
 THE DEPARTMENT) OR CARE COORDINATION.
   § 3. The public health law is amended by adding a new  section  2803-x
 to read as follows:
   §  2803-X.  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,  OTHER  ENTITY OR INDIVIDUAL PROVIDING SERVICES TO THE
 OPERATOR OR THE FACILITY.
   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 PROVIDED TO  THE  DEPART-
 MENT UNDER THIS SECTION.

 A. 4757--A                          6
 
   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, MORTGAGING, ENCUM-
 BRANCE, OR OTHER DISPOSITION 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 AN AMOUNT EQUIVALENT
 TO  THE UNDEPRECIATED VALUE OF CAPITAL ASSETS FOR WHICH THE PROVIDER HAS
 BEEN FUNDED OR REIMBURSED THROUGH MEDICAID RATE ADJUSTMENTS OR OTHERWISE
 FUNDED OR REIMBURSED WITH  RESOURCES  PROVIDED  BY  THE  STATE  FOR  THE
 PURPOSE OF IMPROVEMENT OR TRANSFORMATION.
   §  4.  The public health law is amended by adding a new section 2803-y
 to read as follows:
   § 2803-Y. 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. 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.
   § 6. This act shall take effect on the one hundred twentieth day after
 it shall have become a law.  Effective immediately, the commissioner  of
 health shall make regulations and take other actions necessary to imple-
 ment this act on that date.