The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4893
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 18, 2021
                                ___________
 
 Introduced  by  Sen.  RIVERA -- 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. Subdivision 2 of section 2801 of the public health law,  as
 amended  by  chapter  955  of  the  laws  of 1969, is amended to read as
 follows:
   2. "Nursing home" means A RESIDENTIAL HEALTH CARE FACILITY, a facility
 providing therein nursing care to sick,  invalid,  infirm,  disabled  or
 convalescent  persons in addition to lodging and board or health-related
 service, or any combination of the foregoing, and in  addition  thereto,
 providing nursing care and health-related service, or either of them, to
 persons who are not occupants of the facility.
   §  2. 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. (A) THIS SUBDIVISION APPLIES WITH RESPECT TO AN APPLICATION UNDER
 THIS SECTION RELATING TO THE INCORPORATION OR ESTABLISHMENT OF ANY NURS-
 ING HOME, IN ADDITION TO SUBDIVISION TWO OF THIS SECTION.
   (B) THE COUNCIL SHALL PROVIDE NOTICE OF THE APPLICATION TO THE  PUBLIC
 ON  THE  DEPARTMENT'S  WEBSITE  WITHIN  THIRTY DAYS OF RECEIPT OF IT AND
 PROVIDE IT TO THE STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN  AND  THE
 REGIONAL  OFFICE  HAVING GEOGRAPHICAL JURISDICTION OF THE AREA WHERE THE
 NURSING HOME IS TO BE OR IS LOCATED.  IN  THE  CASE  OF  AN  APPLICATION
 RELATING  TO AN EXISTING NURSING HOME, THE NOTICE SHALL ALSO BE PROVIDED
 IN WRITING OR ELECTRONICALLY TO RESIDENTS OF THE NURSING HOME AND  THEIR
 REPRESENTATIVES,  AND  THE STAFF OF THE NURSING HOME AND THEIR REPRESEN-
 TATIVES.
   (C) THE COUNCIL SHALL  PROVIDE  A  MECHANISM  FOR  SUBMITTING  WRITTEN
 COMMENTS  ELECTRONICALLY  ON THE APPLICATION TO THE COUNCIL; AND PROVIDE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD07696-03-1

 S. 4893                             2
 
 AT LEAST NINETY DAYS FOR THE COMMENT PERIOD. THE TERMS  OF  THE  WRITTEN
 COMMENT  PROCESS  SHALL BE INCLUDED IN THE NOTICE UNDER PARAGRAPH (A) OF
 THIS SUBDIVISION.
   (D)  THE COUNCIL SHALL FORWARD A COPY OF THE APPLICATION, AND ACCOMPA-
 NYING DOCUMENTS, TO THE STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN AND
 THE REGIONAL OFFICE HAVING GEOGRAPHICAL JURISDICTION OF THE  AREA  WHERE
 THE NURSING HOME IS OR IS TO BE LOCATED WITHIN THIRTY DAYS OF RECEIPT OF
 THE  APPLICATION.  THE COUNCIL SHALL NOT ACT UPON SUCH APPLICATION UNTIL
 AFTER THE STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN, REGIONAL  OFFICE
 AND  THE  PARTIES ENTITLED TO NOTICE HAVE HAD A REASONABLE TIME, BUT NOT
 LESS THAN NINETY DAYS, TO SUBMIT  THEIR  RECOMMENDATIONS.  AT  THE  TIME
 MEMBERS OF THE COUNCIL ARE NOTIFIED THAT AN APPLICATION IS SCHEDULED FOR
 CONSIDERATION,  THE  APPLICANT,  AND  THE PARTIES ENTITLED TO THE NOTICE
 UNDER PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE SO NOTIFIED IN  WRITING
 OR ELECTRONICALLY. THE COUNCIL SHALL AFFORD THE APPLICANT AN OPPORTUNITY
 TO PRESENT INFORMATION IN PERSON CONCERNING THE APPLICATION TO A COMMIT-
 TEE  DESIGNATED  BY  THE  COUNCIL. THE COUNCIL SHALL NOT TAKE ANY ACTION
 CONTRARY TO THE ADVICE OF THE STATE OFFICE OF THE LONG-TERM CARE OMBUDS-
 MAN OR THE REGIONAL OFFICE UNTIL IT AFFORDS THE STATE OR REGIONAL OFFICE
 AN OPPORTUNITY TO REQUEST A PUBLIC HEARING AND,  IF  SO  REQUESTED,  THE
 PUBLIC HEARING IS HELD. IF THE COUNCIL PROPOSES TO DISAPPROVE THE APPLI-
 CATION  IT  SHALL  AFFORD  THE  APPLICANT  AN OPPORTUNITY TO REQUEST AND
 TESTIFY AT A PUBLIC HEARING. THE COUNCIL MAY HOLD A  PUBLIC  HEARING  ON
 THE  APPLICATION  ON  ITS  OWN MOTION OR UPON THE WRITTEN REQUEST OF ANY
 PERSON.
   (E) WHERE THIS SUBDIVISION IS INCONSISTENT  WITH  SUBDIVISION  TWO  OF
 THIS SECTION, THIS SUBDIVISION SHALL PREVAIL.
   3-B. (A) THIS SUBDIVISION APPLIES TO AN APPLICATION UNDER THIS SECTION
 RELATING TO A NURSING HOME, AND APPLIES IN ADDITION TO SUBDIVISION THREE
 OF THIS SECTION.
   (B)  THE  APPLICATION  SHALL  PROVIDE INFORMATION AS TO THE CHARACTER,
 COMPETENCE AND STANDING IN THE COMMUNITY OF EVERY  PRESENT  OR  PROPOSED
 CONTROLLING  PERSON,  PRINCIPAL  STOCKHOLDER  OR PRINCIPAL MEMBER OF THE
 APPLICANT, THE IDENTITY OF EVERY NURSING HOME IN  WHICH  EACH  OF  THOSE
 INDIVIDUALS  OR  ENTITIES IS, OR IN THE PRECEDING FIVE YEARS HAS BEEN, A
 CONTROLLING PERSON, PRINCIPAL STOCKHOLDER OR PRINCIPAL MEMBER;  AND  THE
 NATURE  OF  THAT INTEREST. THE COUNCIL SHALL NOT APPROVE THE APPLICATION
 UNLESS IT FINDS THAT EACH OF THOSE INDIVIDUALS AND ENTITIES, IN RELATION
 TO EACH SUCH NURSING HOME, FOR AT LEAST THE PREVIOUS THREE YEARS, DEMON-
 STRATED SATISFACTORY CHARACTER, COMPETENCE AND STANDING IN THE COMMUNITY
 AND THE NURSING HOME PROVIDED A CONSISTENTLY HIGH  LEVEL  OF  CARE.  THE
 COUNCIL  SHALL  ADOPT  RULES AND REGULATIONS, SUBJECT TO THE APPROVAL OF
 THE COMMISSIONER, TO ESTABLISH THE CRITERIA  TO  BE  USED  TO  DETERMINE
 WHETHER  A  CONSISTENTLY HIGH LEVEL OF CARE HAS OR HAS NOT BEEN RENDERED
 BY AN APPLICANT WHERE ONE OR MORE CONTROLLING PERSONS, PRINCIPAL  STOCK-
 HOLDERS  OR  PRINCIPAL MEMBERS OF THE APPLICANT IS A CONTROLLING PERSON,
 PRINCIPAL STOCKHOLDER OR PRINCIPAL MEMBER OF A NURSING HOME  LOCATED  IN
 THE  UNITED  STATES.  THE COUNCIL SHALL NOT CONSIDER THAT A CONSISTENTLY
 HIGH LEVEL OF CARE HAS BEEN DELIVERED AT A FACILITY 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

 S. 4893                             3

 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  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, PROVIDED HOWEVER, THAT WHERE AN  APPLICANT  HAS  TAKEN
 OVER  A  FACILITY  AND PROMPTLY CORRECTED SUCH DEFICIENCIES, THE COUNCIL
 MAY CONSIDER THE APPLICATION.
   (C) WHERE THIS SUBDIVISION IS INCONSISTENT WITH SUBDIVISION  THREE  OF
 THIS SECTION, THIS SUBDIVISION SHALL PREVAIL.
   §  3. 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]
 NURSING HOMES and related assets AND OPERATIONS.  1. The operator  of  a
 [residential health care facility] NURSING HOME shall notify the commis-
 sioner  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  RESIDENTS AND AS ADDENDUMS FOR RESIDENTS CURRENTLY RESIDING
 IN THE RESIDENTIAL HEALTH CARE FACILITY NURSING HOME. 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 OPER-
 ATOR SHALL ALSO PROVIDE NOTIFICATION TO ALL RESIDENTS AND  THEIR  REPRE-
 SENTATIVES, STAFF AND THEIR REPRESENTATIVES, AND THE STATE OFFICE OF THE
 LONG-TERM CARE OMBUDSMAN.
   2.  The  operator of a [residential health care facility] NURSING HOME
 shall, on an annual basis, attest to the department, in  a  form  deter-
 mined  by the department, to the accuracy of the information provided to
 the department under this section.
   3. The operator of a [residential health care facility]  NURSING  HOME
 may  not enter into any arrangement to guarantee the debt or other obli-
 gation of a party which has not received establishment approval.
   4. The operator of a [residential health care facility]  NURSING  HOME
 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 NURSING  HOME'S
 INTENT TO EXECUTE A BINDING LETTER OF INTENT OR OTHER CONTRACTUAL AGREE-
 MENT 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 NURSING HOME 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 BINDING

 S. 4893                             4
 
 LETTER OF INTENT OR OTHER CONTRACTUAL AGREEMENT AS  DESCRIBED  IN  PARA-
 GRAPHS A AND B OF SUBDIVISION FOUR OF THIS SECTION.
   7.  THE OPERATOR OF A NURSING HOME SHALL BE RESPONSIBLE AND LIABLE FOR
 THE OPERATION OF THE NURSING HOME, REGARDLESS OF ANY CONTRACT, AGREEMENT
 OR ARRANGEMENT PROVIDING FOR ANY PARTY TO CARRY OUT,  OR  PURPORTING  TO
 DELEGATE, ANY ACTIVITY OR RESPONSIBILITY RELATING TO THE NURSING HOME.
   8.  ANY  NEW  OWNER,  OPERATOR OR MANAGEMENT COMPANY OF A NURSING HOME
 SHALL RETAIN ALL EMPLOYEES OF THE NURSING HOME FOR AT LEAST A  SIXTY-DAY
 TRANSITION  PERIOD,  EXCEPT  FOR  THE NURSING HOME ADMINISTRATOR AND THE
 DIRECTOR OF NURSING, OR ANY CONTROLLING PERSON, PRINCIPAL STOCKHOLDER OR
 PRINCIPAL MEMBER, AND SHALL NOT REDUCE THE WAGES OR BENEFITS, OR  MODIFY
 ANY  OTHER  TERMS  AND  CONDITIONS  OF EMPLOYMENT, ECONOMIC OR OTHERWISE
 DURING THE TRANSITION PERIOD, AND EXCEPT FOR CAUSE.
   9. In any instance where a [residential health care facility]  NURSING
 HOME  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 adjust-
 ments or otherwise funded or reimbursed with resources provided  by  the
 state for the purpose of improvement or transformation.
   § 4. This act shall take effect immediately.