Senate Bill S9025A

                            
 
                     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.