NY State Senate Bill S9025A

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

view actions (3)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Dec 07, 2020	print number 9025a
Dec 07, 2020	amend (t) and recommit to rules
Oct 05, 2020	referred to rules

Bill Amendments

Original

A (Active)

Original

A (Active)

Co-Sponsors

S9025 - Details

Current Committee:: Senate Rules
Law Section:: Public Health Law
Laws Affected:: Amd §§2801-a & 2803-x, Pub Health L
Versions Introduced in 2021-2022 Legislative Session:: S3060

S9025 - Summary

Requires operators of nursing homes and residential health care facilities to provide notification of certain contracts and agreements to all residents, representatives, staff and the office of the long-term care ombudsman.

S9025 - Sponsor Memo

 
BILL NUMBER: S9025

SPONSOR: RIVERA
 
TITLE OF BILL:

An act to amend the public health law, in relation to requirements for
residential health care facilities

 
PURPOSE:

The purpose of the bill is to ensure that nursing home owners and opera-
tors who come before the Public Health and Health Planning Council for
change in ownership or operations are reviewed and approved based upon
several quality metrics before they are entrusted with the care of addi-
tional individuals. The bill also enhances transparency around related
assets and operations of nursing homes as well as of applications for
changes to ownership and/or operation of a facility.

 
SUMMARY OF PROVISIONS:

Section 1: amends section 2801-a of the public health law. Subdivision 2

is amended to require the Public Health and Health Planning Council
(PHHPC) to provide notice to the public and other stakeholders of any
proposed certificates of need or applications on the Department of
Health's website within 30 days of receipt and provide a mechanism to
submit written comments electronically on the proposal during a 90 day
comment period. A copy of the proposal and accompanying document shall
be sent to the State Office of the Long-term Care Ombudsman (LTCO) and
the regional office having geographical jurisdiction within 30 days of
receipt. PHHPC shall not take any action contrary to the advice of the
public and state and regional LTCO until it allows them to request a
public hearing.

Subdivision 3 is amended to require PHHPC to give the public and other
stakeholders not less than ninety days to provide comments through the
departments website on the application, character and competency of the
individuals applying, and/or the consistently high level of care that
has or has not been rendered. It further details the conditions under
which PHHPC may determine "that a substantially consistent high level of
care has been rendered". These conditions include meeting certain levels
of direct care and nurse staffing or being free of any state or federal
violations with a finding of immediate jeopardy or actual harm. It also
addresses repeat deficiencies for the same or similar violations, facil-
ities which have received a Double G citation issues by CMS, facilities
on CMS special focus facility list or is a candidate for such list,
facilities which received inadequate performance scores on NYS nursing
home quality initiative or similar quality measurements or tools, or has
been in receivership, closed under a settlement agreement from a decer-
tification or licensure revocation, or has been involuntarily terminated
from Medicare or Medicaid, or convicted of patient abuse, neglect or
exploitations, or has been subjected to an enforcement action by MFCU or
federal OIG or has outstanding violations with the national labor
relations board or OSHA.

Section 2: amends section 2803-x of the public health law to ensure
information on residential health care facilities assets and operations,
including familial ownership relationships, be made public and shared
with stakeholders. It requires operators to provide notice the Depart-
ment of health ninety days prior to entering into any new common or
familial ownership of any entity or individual providing services to the
operators and to notify stakeholders. It also requires notice of any
intentions to enter into arrangements_or other contractual agreements
relative to a sale, mortgages, management, operations, staffing agencies
etc. Operators shall notify stakeholders of such intentions as well. It
also clarifies that operators shall retain sufficient authority and
control that shall not be delegated to a managing entity and requires
new owners, operators or management companies to maintain direct care
staff for a 60-day transition period without reduction in their wages,
benefits or terms of employment.

Section 3: provides an effective date

 
JUSTIFICATION:

Quality care for our frail, elderly and disabled should be among the
state's highest priorities. This is particularly important to ensure for
those who end up in the care of one of the state's over 600 nursing
homes, as these individuals are in many ways at the mercy of the facili-
ties they are in. New York has many wonderful nursing homes that work
hard to provide quality care, however there are "bad apples" as well.
Our recent experience around the COVID-19 pandemic and the dispropor-
tionate number of residents who contracted and in many cases succumbed
to the virus shines a bright light on the need for reforms that have
been called for even prior to the pandemic.

During the NYS Legislatures' Joint Public Hearings on COVID-19 in resi-
dential health care facilities, heart breaking testimony was heard from
residents, families, staff and advocates. Testimony was also heard from
the nursing home industry about the fragile financial situation of many
homes especially in light of the dropping occupancy rates. Where occu-
pancy rates had traditionally been above 90%, rates have dropped into
the 70% range and even as low as 61% occupancy in some cases. Given the
pandemic, fewer elective surgeries have been happening and even fewer
individuals have chosen in-patient rehabilitation following a surgery or
discharge from a hospital to a nursing home. Many speculate this trend
may continue with the state seeing facilities downsizing, closing and/or
consolidating in the coming months and years.

It is imperative that as the state receives applications for changes in
ownership and operation of facilities, applicants are held to the high-
est standards. Poor histories of quality care among entities and indi-
viduals looking to operate or take some ownership stake in a facility
cannot be allowed. Information must be available as changes are sought
and public and stakeholder input must be included in the state's deci-
sions to permit certain owners and operators to expand their footprint.
We must take this opportunity to instill the highest standards possible
and make sure our nursing homes provide high quality care.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

None to state.

 
EFFECTIVE DATE:
This act shall take effect immediately.

S9025 - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9025
 
                             I N  S E N A T E
 
                              October 5, 2020
                                ___________
 
 Introduced  by  Sens.  RIVERA,  MAY,  SKOUFIS  -- read twice and ordered
   printed, and when printed to be committed to the Committee on Rules
 
 AN ACT to amend the public health law, in relation to  requirements  for
   residential health care facilities
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1.   Subdivisions 2 and 3 of  section  2801-a  of  the  public
 health law, as amended by section 57 of part A of chapter 58 of the laws
 of 2010, are amended to read as follows:
   2. With respect to the incorporation or establishment of any hospital,
 as  defined in this article, the public health and health planning coun-
 cil shall give written approval after all of the following  requirements
 have  been  met. An application for approval of the proposed certificate
 of incorporation, articles of organization  or  establishment  shall  be
 filed  with  the public health and health planning council together with
 such other forms and information as shall be prescribed by, or  accepta-
 ble  to,  the public health and health planning council. Thereafter, the
 public health and health planning council shall (A)  PROVIDE  NOTICE  TO
 THE PUBLIC, NURSING HOMES RESIDENTS AND THEIR REPRESENTATIVES, STAFF AND
 THEIR  REPRESENTATIVES,  AND  THE  STATE  OFFICE  OF  THE LONG-TERM CARE
 OMBUDSMAN AND THE REGIONAL OFFICE HAVING  GEOGRAPHICAL  JURISDICTION  OF
 THE AREA WHERE THE PROPOSED INSTITUTION IS TO BE LOCATED OF THE PROPOSED
 CERTIFICATE  OR  APPLICATION  ON  THE DEPARTMENT'S WEBSITE WITHIN THIRTY
 DAYS OF RECEIPT; PROVIDE A MECHANISM TO SUBMIT  WRITTEN  COMMENTS  ELEC-
 TRONICALLY  ON  THE  PROPOSED  CERTIFICATE  OR APPLICATION TO THE PUBLIC
 HEALTH AND HEALTH PLANNING COUNCIL; AND PROVIDE AT LEAST NINETY DAYS FOR
 SUCH COMMENT PERIOD, AND (B) forward a copy of the proposed  certificate
 or  application  for  establishment,  and accompanying documents, to the
 health systems agency, if any, having geographical jurisdiction  of  the
 area  where  the  proposed institution is to be located AND TO THE STATE
 OFFICE OF THE LONG-TERM CARE OMBUDSMAN AND THE  REGIONAL  OFFICE  HAVING
 GEOGRAPHICAL  JURISDICTION OF THE AREA WHERE THE PROPOSED INSTITUTION IS
 TO BE LOCATED WITHIN THIRTY DAYS  OF  RECEIPT.  The  public  health  and
 health planning council shall act upon such application after the health
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD17311-03-0

 S. 9025                             2
 
 systems  agency  [has],  OFFICE  OF  THE STATE LONG-TERM CARE OMBUDSMAN,
 REGIONAL OFFICE AND THE PUBLIC HAVE HAD A REASONABLE TIME, BUT NOT  LESS
 THAN  NINETY  DAYS, to submit their recommendations. At the time members
 of  the  public  health and health planning council are notified that an
 application is scheduled for consideration, the applicant,  THE  PUBLIC,
 THE  STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN, THE REGIONAL OFFICES,
 and the health systems agency shall be so notified in writing WHICH  MAY
 BE THROUGH ELECTRONIC MEANS. The public health and health planning coun-
 cil  shall afford the applicant an opportunity to present information in
 person concerning the application to a committee designated by the coun-
 cil. The public health and health planning council shall  not  take  any
 action  contrary to the advice of the health systems agency, THE PUBLIC,
 THE STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN OR THE REGIONAL  OFFICE
 until  it  affords [to the health systems agency] THEM an opportunity to
 request a public hearing and, if so requested, a public hearing shall be
 held. If the public health  and  health  planning  council  proposes  to
 disapprove  the application it shall afford the applicant an opportunity
 to request a public hearing. The public health and health planning coun-
 cil may hold a public hearing on the application on its own motion.  Any
 public hearing held pursuant to this subdivision may be conducted by the
 public  health  and health planning council, or by any individual desig-
 nated by the public health and health  planning  council.  Beginning  on
 January first, nineteen hundred ninety-four, and each year thereafter, a
 complete  application  received between January first and June thirtieth
 of each year shall be reviewed by the appropriate health systems  agency
 and  the  department and presented to the public health and health plan-
 ning council for its  consideration  prior  to  June  thirtieth  of  the
 following  year  and  a complete application received between July first
 and December thirty-first of each year shall be reviewed by  the  appro-
 priate  health systems agency and the department presented to the public
 health and health planning council for consideration prior  to  December
 thirty-first of the following year.
   3.  The  public health and health planning council shall not approve a
 certificate of incorporation, articles of  organization  or  application
 for  establishment  unless it is satisfied, insofar as applicable, as to
 (a) the public need for the existence of the institution at the time and
 place and under the circumstances proposed, provided, however,  that  in
 the  case of an institution proposed to be established or operated by an
 organization defined in subdivision one of section one hundred  seventy-
 two-a  of  the  executive law, the needs of the members of the religious
 denomination concerned, for care or treatment in accordance  with  their
 religious or ethical convictions, shall be deemed to be public need; (b)
 the  character,  competence,  and  standing  in  the  community,  of the
 proposed incorporators, directors, sponsors,  stockholders,  members  or
 operators; with respect to any proposed incorporator, director, sponsor,
 stockholder,  member  or  operator who is already or within the past ten
 years has been an incorporator,  director,  sponsor,  member,  principal
 stockholder,  principal  member,  or  operator  of any hospital, private
 proprietary home for adults, residence for adults,  or  non-profit  home
 for  the aged or blind which has been issued an operating certificate by
 the state department of social services, or a halfway house,  hostel  or
 other  residential  facility  or  institution  for  the care, custody or
 treatment of the mentally disabled which is subject to approval  by  the
 department  of  mental  hygiene, no approval shall be granted unless the
 public health and health planning council, having afforded  an  adequate
 opportunity OF NOT LESS THAN NINETY DAYS to MEMBERS OF THE PUBLIC, RESI-

 S. 9025                             3
 
 DENTS  AND  THEIR  REPRESENTATIVES, STAFF AND THEIR REPRESENTATIVES, THE
 STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN, THE REGIONAL OFFICES,  AND
 members  of  health systems agencies, if any, having geographical juris-
 diction  of the area where the institution is to be located to be heard,
 TO COMMENT THROUGH THE DEPARTMENT'S WEBSITE AND THROUGH OTHER  MEANS  ON
 THE  APPLICATION, THE CHARACTER AND COMPETENCY OF THE INDIVIDUALS APPLY-
 ING, AND/OR THE CONSISTENTLY HIGH LEVEL OF CARE THAT HAS OR HAS NOT BEEN
 RENDERED, shall affirmatively find by substantial evidence  as  to  each
 such  incorporator, director, sponsor, principal stockholder or operator
 that a substantially consistent high level of care is being or was being
 rendered in each such hospital, home, residence, halfway house,  hostel,
 or  other  residential facility or institution with which such person is
 or was affiliated; for the purposes of this paragraph, the public health
 and health planning council shall adopt rules and  regulations,  subject
 to  the  approval  of  the commissioner, to establish the criteria to be
 used to determine whether a substantially consistent high level of  care
 has  been rendered, provided, however, that there shall not be a finding
 that a substantially consistent high level of care has been rendered  BY
 AN  APPLICANT  where  ONE  OR  MORE  INDIVIDUALS OR ENTITIES WITH A FIVE
 PERCENT OR GREATER OWNERSHIP  INTEREST  IN  THE  APPLICANT  HAS  A  FIVE
 PERCENT  OR  GREATER  OWNERSHIP  INTEREST  IN  A FACILITY LOCATED IN THE
 UNITED STATES THAT HAS ON AVERAGE FOR ANY OF THE FOUR MOST RECENT  QUAR-
 TERS,  THREE HOURS OR LESS TOTAL DIRECT CARE STAFF TIME PER RESIDENT PER
 DAY OR LESS THAN ONE-HALF HOUR PER RESIDENT  PER  DAY  REGISTERED  NURSE
 STAFFING,  AS PUBLISHED BY THE CENTER FOR MEDICARE AND MEDICAID SERVICES
 IN THE FEDERAL CENTER FOR MEDICARE AND MEDICAID SERVICES' (CMS)  PAYROLL
 BASED  JOURNAL  DATA  or  where  there have been violations of the state
 [hospital] OR FEDERAL NURSING HOME code, or other applicable  rules  and
 regulations,  that  (i) threatened to directly affect the health, safety
 or welfare of any patient or resident, INCLUDING BUT NOT  LIMITED  TO  A
 FINDING  OF  IMMEDIATE JEOPARDY, OR ACTUAL HARM, and (ii) were recurrent
 or were not promptly corrected, INCLUDING  BUT  NOT  LIMITED  TO  REPEAT
 DEFICIENCIES FOR THE SAME OR SIMILAR VIOLATIONS OVER A THREE YEAR PERIOD
 OR  DURING THE ENTIRE DURATION OF OWNERSHIP IF LESS THAN THREE YEARS, OR
 (III) ANY FACILITY WHICH HAS RECEIVED A DOUBLE G CITATION ISSUED BY  THE
 CENTERS FOR MEDICARE AND MEDICAID SERVICES IN THE PRIOR THREE YEARS; (c)
 the  financial  resources of the proposed institution and its sources of
 future revenues; and (d) such other matters as it shall deem  pertinent,
 INCLUDING  BUT  NOT  LIMITED  TO  THE PROPOSED INCORPORATORS, DIRECTORS,
 SPONSORS, STOCKHOLDERS, MEMBERS OR OPERATORS HAVING AFFILIATIONS WITH OR
 INTERESTS IN A FACILITY ANYWHERE IN THE  UNITED  STATES  WHICH:  (I)  IS
 LISTED ON THE CMS SPECIAL FOCUS FACILITY LIST, OR ITS SUCCESSOR, OR (II)
 IS  LISTED  ON  THE  CMS  SPECIAL  FOCUS FACILITY CANDIDATE LIST, OR ITS
 SUCCESSOR, OR (III) RECEIVED  INADEQUATE  PERFORMANCE  SCORES  OVER  THE
 PREVIOUS  THREE  YEARS ON THE NEW YORK STATE NURSING HOME QUALITY INITI-
 ATIVE OR ON SIMILAR QUALITY MEASUREMENT INITIATIVES OR  TOOLS,  OR  (IV)
 HAS  BEEN  IN RECEIVERSHIP; CLOSED AS A RESULT OF A SETTLEMENT AGREEMENT
 FROM A DECERTIFICATION ACTION  OR  LICENSURE  REVOCATION;  OR  HAS  BEEN
 INVOLUNTARILY  TERMINATED  FROM  THE MEDICARE OR MEDICAID PROGRAM IN THE
 PRIOR FIVE YEARS, OR (V) HAS BEEN CONVICTED OF PATIENT ABUSE, NEGLECT OR
 EXPLOITATION, (VI) HAS BEEN THE SUBJECT OF AN ENFORCEMENT ACTION BY  THE
 STATE  MEDICAID  FRAUD  CONTROL  UNIT  OR  THE  FEDERAL HEALTH AND HUMAN
 SERVICES  OFFICE  OF  INSPECTOR  GENERAL,  OR  (VII)   HAS   OUTSTANDING
 VIOLATIONS  WITH  THE NATIONAL LABOR RELATIONS BOARD OR THE OCCUPATIONAL
 SAFETY AND HEALTH ADMINISTRATION.

 S. 9025                             4
 
   § 2. Section 2803-x of the public health law, as added by chapter  677
 of the laws of 2019, is amended to read as follows:
   § 2803-x. Requirements  related  to residential health care facilities
 and related assets AND OPERATIONS. 1.  The  operator  of  a  residential
 health  care  facility  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. SUCH INFORMATION
 SHALL ALSO BE INCLUDED IN THE RESIDENCY AGREEMENT FOR PROSPECTIVE  RESI-
 DENTS  AND AS ADDENDUMS FOR RESIDENTS CURRENTLY RESIDING IN THE RESIDEN-
 TIAL HEALTH CARE FACILITY. THE OPERATOR SHALL NOTIFY THE  DEPARTMENT  AT
 LEAST  NINETY  DAYS  PRIOR  TO  ENTERING INTO ANY NEW COMMON OR FAMILIAL
 OWNERSHIP OF ANY CORPORATION, OR OTHER ENTITY  OR  INDIVIDUAL  PROVIDING
 SERVICES  TO  THE  OPERATOR  OF  THE  FACILITY.  THE OPERATOR SHALL ALSO
 PROVIDE NOTIFICATION TO ALL RESIDENTS AND THEIR  REPRESENTATIVES,  STAFF
 AND  THEIR  REPRESENTATIVES,  AND THE STATE OFFICE OF THE LONG-TERM CARE
 OMBUDSMAN.
   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.
   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:
   A. the sale, mortgaging, encumbrance, or other disposition of the real
 property of the facility; AND
   B.  THE  MANAGEMENT, OPERATIONS, STAFFING AGENCY OR OTHER ENTITY TO BE
 INVOLVED IN THE OPERATIONS OF THE FACILITY.
   5. THE DEPARTMENT, SHALL, WITHIN TEN DAYS AFTER RECEIPT OF A NOTIFICA-
 TION REQUIRED UNDER SUBDIVISION FOUR OF THIS SECTION, NOTIFY  THE  STATE
 OFFICE  OF  THE LONG-TERM CARE OMBUDSMAN OF AN OPERATOR OF A RESIDENTIAL
 HEALTH CARE FACILITY'S INTENT TO EXECUTE A LETTER  OF  INTENT  OR  OTHER
 CONTRACTUAL AGREEMENT RELATED TO:
   A. THE SALE, MORTGAGING, ENCUMBRANCE, OR OTHER DISPOSITION OF THE REAL
 PROPERTY OF THE FACILITY; AND
   B.  THE  MANAGEMENT, OPERATIONS, STAFFING AGENCY OR OTHER ENTITY TO BE
 INVOLVED IN THE OPERATIONS OF THE FACILITY.
   6. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILITY SHALL NOTIFY ALL
 RESIDENTS AND THEIR REPRESENTATIVES, STAFF  AND  THEIR  REPRESENTATIVES,
 AND  THE  STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN  WITHIN FIVE DAYS
 OF EXECUTING A LETTER  OF  INTENT  OR  OTHER  CONTRACTUAL  AGREEMENT  AS
 DESCRIBED IN PARAGRAPHS A AND B OF SUBDIVISION FOUR OF THIS SECTION. THE
 DEPARTMENT  SHALL  MAKE  REGULATIONS AND TAKE OTHER ACTIONS TO IMPLEMENT
 PROCEDURES FOR SUCH NOTIFICATION.
   7. THE OPERATOR OF A RESIDENTIAL HEALTH  CARE  FACILITY  SHALL  RETAIN
 SUFFICIENT  AUTHORITY  AND CONTROL TO DISCHARGE ITS RESPONSIBILITIES AND
 THE DEPARTMENT SHALL BY REGULATIONS OUTLINE THOSE  ELEMENTS  OF  CONTROL
 WHICH SHALL NOT BE DELEGATED TO A MANAGING ENTITY.
   8.    ANY  NEW  OWNER, OPERATOR OR MANAGEMENT COMPANY OF A RESIDENTIAL
 HEALTH CARE FACILITY SHALL RETAIN ALL EMPLOYEES FOR A SIXTY-DAY  TRANSI-
 TION  PERIOD, EXCEPT FOR THE NURSING HOME ADMINISTRATOR AND THE DIRECTOR
 OF NURSING, AND SHALL NOT REDUCE THE WAGES OR BENEFITS,  OR  MODIFY  ANY
 OTHER  TERMS  AND CONDITIONS OF EMPLOYMENT, ECONOMIC OR OTHERWISE DURING
 THE TRANSITION PERIOD.

 S. 9025                             5
 
   9. 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.
   § 3. This act shall take effect immediately.

Co-Sponsors

S9025A (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Public Health Law
Laws Affected:: Amd §§2801-a & 2803-x, Pub Health L
Versions Introduced in 2021-2022 Legislative Session:: S3060

S9025A (ACTIVE) - Summary

S9025A (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S9025A

SPONSOR: RIVERA
 
TITLE OF BILL:

An act to amend the public health law, in relation to requirements for
residential health care facilities and nursing homes

 
PURPOSE:

The purpose of the bill is to ensure that nursing home owners and opera-
tors who come before the Public Health and Health Planning Council for
change in ownership or operations are reviewed and approved based upon
several quality metrics before they are entrusted with the care of addi-
tional individuals. The bill also enhances transparency around related
assets and operations of nursing homes as well as of applications for
changes to ownership and/or operation of a facility.

 
SUMMARY OF PROVISIONS:

Section 1: amends section 2801-a of the public health law by adding two

new Subdivision 2-b to require the Public Health and Health Planning
Council (PHHPC) to provide notice to the public and other stakeholders
of any proposed certificates of need or applications on the Department
of Health's website within 30 days of receipt and provide a mechanism to
submit written comments electronically on the proposal during a 90 day
comment period. A copy of the proposal and accompanying document shall
be sent to the State Office of the Long-term Care Ombudsman (LTCO) and
the regional office having geographical jurisdiction within 30 days of
receipt. PHHPC shall not take any action contrary to the advice of the
public and state and regional LTCO until it allows them to request a
public hearing.

Subdivision 3-b requires PHHPC to give the public and other stakeholders
not less than ninety days to provide comments through the departments
website on the application, character and competency of the individuals
applying, and/or the consistently high level of care that has or has not
been rendered. It further details the conditions under which PHHPC may
determine "that a substantially consistent high level of care has been
rendered". These conditions include meeting certain levels of direct
care and nurse staffing or being free of any state or federal violations
with a finding of immediate jeopardy or actual harm. It also addresses
repeat deficiencies for the same or similar violations, facilities which
have received a Double G citation issues by CMS, facilities on CMS
special focus facility list or is a candidate for such list, facilities
which received inadequate performance scores on NYS nursing home quality
initiative or similar quality measurements or tools, or has been in
receivership, closed under a settlement agreement from a decertification
or licensure revocation, or has been involuntarily terminated from Medi-
care or Medicaid, or convicted of patient abuse, neglect or exploita-
tions, or has been subjected to an enforce ment action by MFCU or feder-
al OIG or has outstanding violations with the national labor relations
board or OSHA.

Section 2: amends section 2803-x of the public health law to ensure
information on residential health care facilities assets and operations,
including familial ownership relationships, be made public and shared
with stakeholders. It requires operators to provide notice the Depart-
ment of health ninety days prior to entering into any new common or
familial ownership of any entity or individual providing services to the
operators and to notify stakeholders. It also requires notice of any
intentions to enter into arrangements_or other contractual agreements
relative to a sale, mortgages, management, operations, staffing agencies
etc. Operators shall notify stakeholders of such intentions as well. It
also clarifies that operators shall retain sufficient authority and
control that shall not be delegated to a managing entity and requires
new owners, operators or management companies to maintain direct care
staff for a 60-day transition period without reduction in their wages,
benefits or terms of employment.

Section 3: provides an effective date

 
JUSTIFICATION:

Quality care for our frail, elderly and disabled should be among the
state's highest priorities. This is particularly important to ensure for
those who end up in the care of one of the state's over 600 nursing
homes, as these individuals are in many ways at the mercy of the facili-
ties they are in. New York has many wonderful nursing homes that work
hard to provide quality care, however there are "bad apples" as well.
Our recent experience around the COVID-19 pandemic and the dispropor-
tionate number of residents who contracted and in many cases succumbed
to the virus shines a bright light on the need for reforms that have
been called for even prior to the pandemic.  During the NYS Legisla-
tures' Joint Public Hearings on COVID-19 in residential health care
facilities, heart breaking testimony was heard from residents, families,
staff and advocates. Testimony was also heard from the nursing home
industry about the fragile financial situation of many homes especially
in light of the dropping occupancy rates. Where occupancy rates had
traditionally been above 90%, rates have dropped into the 70% range and
even as low as 61% occupancy in some cases. Given the pandemic, fewer
elective surgeries have been happening and even fewer individuals have
chosen in-patient rehabilitation following a surgery or discharge from a
hospital to a nursing home. Many speculate this trend may continue with
the state seeing facilities downsizing, closing and/or consolidating in
the coming months and years.

It is imperative that as the state receives applications for changes in
ownership and operation of facilities, applicants are held to the high-
est standards. Poor histories of quality care among entities and indi-
viduals looking to operate or take some ownership stake in a facility
cannot be allowed. Information must be available as changes are sought
and public and stakeholder input must be included in the state's deci-
sions to permit certain owners and operators to expand their footprint.
We must take this opportunity to instill the highest standards possible
and make sure our nursing homes provide high quality care.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

None to state.

 
EFFECTIVE DATE:
This act shall take effect immediately.

S9025A (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  9025--A
 
                             I N  S E N A T E
 
                              October 5, 2020
                                ___________
 
 Introduced  by  Sens.  RIVERA,  MAY,  SKOUFIS, METZGER -- read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Rules  --  committee  discharged,  bill  amended, ordered reprinted as
   amended and recommitted to said committee
 
 AN ACT to amend the public health law, in relation to  requirements  for
   residential health care facilities and nursing homes

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Section 2801-a of the public  health  law  is  amended  by
 adding two new subdivisions 2-b and 3-b to read as follows:
   2-B. WITH RESPECT TO THE INCORPORATION OR ESTABLISHMENT OF ANY NURSING
 HOME,  IN  ADDITION  TO THE REQUIREMENTS SET FORTH IN SUBDIVISION TWO OF
 THIS SECTION, AFTER THE FILING OF AN APPLICATION THE PUBLIC  HEALTH  AND
 HEALTH  PLANNING COUNCIL SHALL (A) PROVIDE NOTICE TO THE PUBLIC, NURSING
 HOMES RESIDENTS AND THEIR REPRESENTATIVES,  STAFF  AND  THEIR  REPRESEN-
 TATIVES,  AND  THE  STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN AND THE
 REGIONAL OFFICE HAVING GEOGRAPHICAL JURISDICTION OF THE AREA  WHERE  THE
 PROPOSED  INSTITUTION  IS  TO  BE LOCATED OF THE PROPOSED CERTIFICATE OR
 APPLICATION ON THE DEPARTMENT'S WEBSITE WITHIN THIRTY DAYS  OF  RECEIPT;
 PROVIDE  A  MECHANISM  TO  SUBMIT WRITTEN COMMENTS ELECTRONICALLY ON THE
 PROPOSED CERTIFICATE OR APPLICATION TO  THE  PUBLIC  HEALTH  AND  HEALTH
 PLANNING  COUNCIL;  AND  PROVIDE  AT  LEAST NINETY DAYS FOR SUCH COMMENT
 PERIOD, AND (B) FORWARD A COPY OF THE PROPOSED CERTIFICATE  OR  APPLICA-
 TION  FOR ESTABLISHMENT, AND ACCOMPANYING DOCUMENTS, TO THE STATE OFFICE
 OF THE LONG-TERM CARE OMBUDSMAN AND THE REGIONAL OFFICE HAVING GEOGRAPH-
 ICAL JURISDICTION OF THE AREA WHERE THE PROPOSED INSTITUTION  IS  TO  BE
 LOCATED  WITHIN  THIRTY  DAYS  OF  RECEIPT. THE PUBLIC HEALTH AND HEALTH
 PLANNING COUNCIL SHALL ACT UPON SUCH APPLICATION AFTER THE STATE  OFFICE
 OF THE LONG-TERM CARE OMBUDSMAN, REGIONAL OFFICE AND THE PUBLIC HAVE HAD
 A REASONABLE TIME, BUT NOT LESS THAN NINETY DAYS, TO SUBMIT THEIR RECOM-
 MENDATIONS. AT THE TIME MEMBERS OF THE PUBLIC HEALTH AND HEALTH PLANNING
 COUNCIL ARE NOTIFIED THAT AN APPLICATION IS SCHEDULED FOR CONSIDERATION,
 THE  APPLICANT,  THE  PUBLIC,  THE  STATE  OFFICE  OF THE LONG-TERM CARE
 OMBUDSMAN AND THE REGIONAL OFFICES, SHALL  BE  SO  NOTIFIED  IN  WRITING
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD17311-04-0

 S. 9025--A                          2
 
 WHICH  MAY  BE  THROUGH  ELECTRONIC  MEANS. THE PUBLIC HEALTH AND HEALTH
 PLANNING COUNCIL SHALL AFFORD THE APPLICANT AN  OPPORTUNITY  TO  PRESENT
 INFORMATION  IN  PERSON CONCERNING THE APPLICATION TO A COMMITTEE DESIG-
 NATED  BY  THE  COUNCIL.  THE  PUBLIC HEALTH AND HEALTH PLANNING COUNCIL
 SHALL NOT TAKE ANY ACTION CONTRARY TO THE  ADVICE  OF  THE  PUBLIC,  THE
 STATE  OFFICE  OF  THE  LONG-TERM  CARE OMBUDSMAN OR THE REGIONAL OFFICE
 UNTIL IT AFFORDS SUCH ENTITIES AN OPPORTUNITY TO REQUEST A PUBLIC  HEAR-
 ING  AND, IF SO REQUESTED, A PUBLIC HEARING SHALL BE HELD. IF THE PUBLIC
 HEALTH AND HEALTH PLANNING COUNCIL PROPOSES TO DISAPPROVE  THE  APPLICA-
 TION  IT  SHALL  AFFORD THE APPLICANT AN OPPORTUNITY TO REQUEST A PUBLIC
 HEARING. THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL MAY HOLD A PUBLIC
 HEARING ON THE APPLICATION ON ITS OWN MOTION. ANY  PUBLIC  HEARING  HELD
 PURSUANT  TO  THIS SUBDIVISION MAY BE CONDUCTED BY THE PUBLIC HEALTH AND
 HEALTH PLANNING COUNCIL, OR BY ANY INDIVIDUAL DESIGNATED BY  THE  PUBLIC
 HEALTH AND HEALTH PLANNING COUNCIL. THE PROVISIONS OF SUBDIVISION TWO OF
 THIS  SECTION  WHICH  ARE  NOT  INCONSISTENT WITH THIS SUBDIVISION SHALL
 APPLY TO NURSING HOMES.
   3-B. WITH RESPECT TO AN APPLICATION  FOR  A  CERTIFICATE  OF  INCORPO-
 RATION,  ARTICLES  OF ORGANIZATION OR APPLICATION FOR ESTABLISHMENT OF A
 NURSING HOME, IN ADDITION TO THE CRITERIA SET FORTH IN SUBDIVISION THREE
 OF THIS SECTION, THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL SHALL NOT
 ISSUE AN APPROVAL UNLESS THEY HAVE AFFORDED AN ADEQUATE  OPPORTUNITY  OF
 NOT  LESS THAN NINETY DAYS TO MEMBERS OF THE PUBLIC, RESIDENTS AND THEIR
 REPRESENTATIVES, STAFF AND THEIR REPRESENTATIVES, THE  STATE  OFFICE  OF
 THE LONG-TERM CARE OMBUDSMAN AND THE REGIONAL OFFICES TO COMMENT THROUGH
 THE DEPARTMENT'S WEBSITE AND THROUGH OTHER MEANS ON THE APPLICATION, THE
 CHARACTER  AND  COMPETENCY  OF  THE  INDIVIDUALS  APPLYING,  AND/OR  THE
 CONSISTENTLY HIGH LEVEL OF CARE THAT HAS OR HAS NOT BEEN RENDERED BY  AN
 APPLICANT  WHERE ONE OR MORE INDIVIDUALS OR ENTITIES WITH A FIVE PERCENT
 OR GREATER OWNERSHIP INTEREST IN THE APPLICANT HAS  A  FIVE  PERCENT  OR
 GREATER  OWNERSHIP  INTEREST  IN A FACILITY LOCATED IN THE UNITED STATES
 THAT HAS ON AVERAGE FOR ANY OF THE  FOUR  MOST  RECENT  QUARTERS,  THREE
 HOURS  OR LESS TOTAL DIRECT CARE STAFF TIME PER RESIDENT PER DAY OR LESS
 THAN ONE-HALF HOUR PER RESIDENT PER DAY REGISTERED  NURSE  STAFFING,  AS
 PUBLISHED BY THE CENTER FOR MEDICARE AND MEDICAID SERVICES IN THE FEDER-
 AL  CENTER FOR MEDICARE AND MEDICAID SERVICES' (CMS) PAYROLL BASED JOUR-
 NAL DATA OR WHERE THERE HAVE BEEN VIOLATIONS OF  THE  STATE  OR  FEDERAL
 NURSING  HOME  CODE,  OR  OTHER  APPLICABLE  RULES AND REGULATIONS, THAT
 THREATENED TO DIRECTLY AFFECT THE  HEALTH,  SAFETY  OR  WELFARE  OF  ANY
 PATIENT OR RESIDENT, INCLUDING BUT NOT LIMITED TO A FINDING OF IMMEDIATE
 JEOPARDY,  OR  ACTUAL  HARM,  AND  WERE  RECURRENT  OR WERE NOT PROMPTLY
 CORRECTED, INCLUDING BUT NOT LIMITED TO REPEAT DEFICIENCIES FOR THE SAME
 OR SIMILAR VIOLATIONS OVER A THREE YEAR  PERIOD  OR  DURING  THE  ENTIRE
 DURATION  OF  OWNERSHIP  IF LESS THAN THREE YEARS, OR ANY FACILITY WHICH
 HAS RECEIVED A DOUBLE G CITATION ISSUED BY THE CENTERS FOR MEDICARE  AND
 MEDICAID SERVICES IN THE PRIOR THREE YEARS. THE PUBLIC HEALTH AND HEALTH
 PLANNING COUNCIL SHALL ALSO CONSIDER WHETHER THE PROPOSED INCORPORATORS,
 DIRECTORS,  SPONSORS,  STOCKHOLDERS,  MEMBERS  OR OPERATORS OF A NURSING
 HOME HAVE AFFILIATIONS WITH OR INTERESTS IN A FACILITY ANYWHERE  IN  THE
 UNITED  STATES  WHICH:  (I)  IS LISTED ON THE CMS SPECIAL FOCUS FACILITY
 LIST, OR ITS SUCCESSOR, OR (II) IS  LISTED  ON  THE  CMS  SPECIAL  FOCUS
 FACILITY  CANDIDATE LIST, OR ITS SUCCESSOR, OR (III) RECEIVED INADEQUATE
 PERFORMANCE SCORES OVER THE PREVIOUS THREE YEARS ON THE NEW  YORK  STATE
 NURSING HOME QUALITY INITIATIVE OR ON SIMILAR QUALITY MEASUREMENT INITI-
 ATIVES OR TOOLS, OR (IV) HAS BEEN IN RECEIVERSHIP; CLOSED AS A RESULT OF
 A  SETTLEMENT AGREEMENT FROM A DECERTIFICATION ACTION OR LICENSURE REVO-

 S. 9025--A                          3
 
 CATION; OR HAS BEEN INVOLUNTARILY TERMINATED FROM THE MEDICARE OR  MEDI-
 CAID  PROGRAM  IN  THE  PRIOR  FIVE  YEARS, OR (V) HAS BEEN CONVICTED OF
 PATIENT ABUSE, NEGLECT OR EXPLOITATION, OR (VI) HAS BEEN THE SUBJECT  OF
 AN  ENFORCEMENT  ACTION  BY THE STATE MEDICAID FRAUD CONTROL UNIT OR THE
 FEDERAL HEALTH AND HUMAN SERVICES OFFICE OF INSPECTOR GENERAL, OR  (VII)
 HAS  OUTSTANDING  VIOLATIONS  WITH THE NATIONAL LABOR RELATIONS BOARD OR
 THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION.   THE  PROVISIONS  OF
 SUBDIVISION  THREE  OF THIS SECTION WHICH ARE NOT INCONSISTENT WITH THIS
 SUBDIVISION SHALL APPLY TO NURSING HOMES.
   § 2. Section 2803-x of the public health law, as added by chapter  677
 of the laws of 2019, is amended to read as follows:
   § 2803-x. Requirements  related  to residential health care facilities
 and related assets AND OPERATIONS. 1.  The  operator  of  a  residential
 health  care  facility  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. SUCH INFORMATION
 SHALL ALSO BE INCLUDED IN THE RESIDENCY AGREEMENT FOR PROSPECTIVE  RESI-
 DENTS  AND AS ADDENDUMS FOR RESIDENTS CURRENTLY RESIDING IN THE RESIDEN-
 TIAL HEALTH CARE FACILITY. THE OPERATOR SHALL NOTIFY THE  DEPARTMENT  AT
 LEAST  NINETY  DAYS  PRIOR  TO  ENTERING INTO ANY NEW COMMON OR FAMILIAL
 OWNERSHIP OF ANY CORPORATION, OR OTHER ENTITY  OR  INDIVIDUAL  PROVIDING
 SERVICES  TO  THE  OPERATOR  OF  THE  FACILITY.  THE OPERATOR SHALL ALSO
 PROVIDE NOTIFICATION TO ALL RESIDENTS AND THEIR  REPRESENTATIVES,  STAFF
 AND  THEIR  REPRESENTATIVES,  AND THE STATE OFFICE OF THE LONG-TERM CARE
 OMBUDSMAN.
   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.
   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:
   A. the sale, mortgaging, encumbrance, or other disposition of the real
 property of the facility; AND
   B.  THE  MANAGEMENT, OPERATIONS, STAFFING AGENCY OR OTHER ENTITY TO BE
 INVOLVED IN THE OPERATIONS OF THE FACILITY.
   5. THE DEPARTMENT, SHALL, WITHIN TEN DAYS AFTER RECEIPT OF A NOTIFICA-
 TION REQUIRED UNDER SUBDIVISION FOUR OF THIS SECTION, NOTIFY  THE  STATE
 OFFICE  OF  THE LONG-TERM CARE OMBUDSMAN OF AN OPERATOR OF A RESIDENTIAL
 HEALTH CARE FACILITY'S INTENT TO EXECUTE A LETTER  OF  INTENT  OR  OTHER
 CONTRACTUAL AGREEMENT RELATED TO:
   A. THE SALE, MORTGAGING, ENCUMBRANCE, OR OTHER DISPOSITION OF THE REAL
 PROPERTY OF THE FACILITY; AND
   B.  THE  MANAGEMENT, OPERATIONS, STAFFING AGENCY OR OTHER ENTITY TO BE
 INVOLVED IN THE OPERATIONS OF THE FACILITY.
   6. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILITY SHALL NOTIFY ALL
 RESIDENTS AND THEIR REPRESENTATIVES, STAFF  AND  THEIR  REPRESENTATIVES,
 AND  THE  STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN  WITHIN FIVE DAYS
 OF EXECUTING A LETTER  OF  INTENT  OR  OTHER  CONTRACTUAL  AGREEMENT  AS
 DESCRIBED IN PARAGRAPHS A AND B OF SUBDIVISION FOUR OF THIS SECTION. THE
 DEPARTMENT  SHALL  MAKE  REGULATIONS AND TAKE OTHER ACTIONS TO IMPLEMENT
 PROCEDURES FOR SUCH NOTIFICATION.

 S. 9025--A                          4
 
   7. THE OPERATOR OF A RESIDENTIAL HEALTH  CARE  FACILITY  SHALL  RETAIN
 SUFFICIENT  AUTHORITY  AND CONTROL TO DISCHARGE ITS RESPONSIBILITIES AND
 THE DEPARTMENT SHALL BY REGULATIONS OUTLINE THOSE  ELEMENTS  OF  CONTROL
 WHICH SHALL NOT BE DELEGATED TO A MANAGING ENTITY.
   8.    ANY  NEW  OWNER, OPERATOR OR MANAGEMENT COMPANY OF A RESIDENTIAL
 HEALTH CARE FACILITY SHALL RETAIN ALL EMPLOYEES FOR A SIXTY-DAY  TRANSI-
 TION  PERIOD, EXCEPT FOR THE NURSING HOME ADMINISTRATOR AND THE DIRECTOR
 OF NURSING, AND SHALL NOT REDUCE THE WAGES OR BENEFITS,  OR  MODIFY  ANY
 OTHER  TERMS  AND CONDITIONS OF EMPLOYMENT, ECONOMIC OR OTHERWISE DURING
 THE TRANSITION PERIOD.
   9. 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.
   § 3. This act shall take effect immediately.

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