S T A T E O F N E W Y O R K
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3060
2021-2022 Regular Sessions
I N S E N A T E
January 27, 2021
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Introduced by Sens. RIVERA, MAY, SKOUFIS -- read twice and ordered
printed, and when printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07696-01-1
S. 3060 2
OMBUDSMAN AND THE REGIONAL OFFICES, SHALL BE SO NOTIFIED IN WRITING
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
S. 3060 3
A SETTLEMENT AGREEMENT FROM A DECERTIFICATION ACTION OR LICENSURE REVO-
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. 3060 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.
