S T A T E O F N E W Y O R K
________________________________________________________________________
6767
2021-2022 Regular Sessions
I N S E N A T E
May 14, 2021
___________
Introduced by Sen. RIVERA -- 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 nursing homes and
residential health care facilities; and to amend a chapter of the laws
of 2021 amending the public health law relating to requirements for
residential health care facilities and nursing homes, as proposed in
legislative bills numbers S. 4893-A and A. 5684-A, in relation to the
effectiveness thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 2-b and 3-b of section 2801-a of the public
health law, as added by a chapter of the laws of 2021, amending the
public health law relating to requirements for residential health care
facilities and nursing homes, as proposed in legislative bills numbers
S. 4893-A and A. 5684-A, are amended 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] DEPARTMENT shall provide notice, IN WRITING OR ELEC-
TRONICALLY, of [the] AN application [to the public on the department's
website] FOR ESTABLISHMENT TO THE STATE OFFICE OF LONG-TERM CARE OMBUDS-
MAN, 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 nurs-
ing 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 representatives] ACKNOWLEDGEMENT OF
THE APPLICATION BY THE DEPARTMENT. THEREAFTER, THE STATE OFFICE OF THE
LONG-TERM CARE OMBUDSMAN SHALL SUBMIT ITS RECOMMENDATION TO THE DEPART-
MENT AND TO THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL FOR CONSIDER-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07696-06-1
S. 6767 2
ATION ABOUT SUCH APPLICATION. AT THE TIME MEMBERS OF SUCH COUNCIL ARE
NOTIFIED THAT AN APPLICATION IS SCHEDULED FOR CONSIDERATION BY A COMMIT-
TEE DESIGNATED BY THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL, THE
DEPARTMENT SHALL ALSO NOTIFY THE STATE OFFICE OF THE LONG-TERM CARE
OMBUDSMAN, IN WRITING OR ELECTRONICALLY.
(c) [The council shall provide a mechanism for submitting written
comments electronically on the application to the council; and provide
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] IN THE CASE OF AN APPLICATION FOR ESTABLISHMENT RELAT-
ING TO AN EXISTING NURSING HOME, THE ESTABLISHED OPERATOR AND APPLICANT
SHALL PROVIDE NOTICE OF THE APPLICATION, IN WRITING OR ELECTRONICALLY,
TO RESIDENTS OF THE NURSING HOME AND THEIR REPRESENTATIVES AND THE STAFF
OF THE NURSING HOME, INCLUDING THEIR UNION REPRESENTATIVES, WITHIN THIR-
TY DAYS OF ACKNOWLEDGMENT OF THE APPLICATION BY THE DEPARTMENT. THE
ESTABLISHED OPERATOR AND APPLICANT SHALL ALSO IMMEDIATELY NOTIFY RESI-
DENTS OF THE NURSING HOME AND THEIR REPRESENTATIVES AND THE STAFF OF THE
NURSING HOME, INCLUDING THEIR UNION REPRESENTATIVES, WHEN THE ESTAB-
LISHED OPERATOR AND APPLICANT IS NOTIFIED THAT ITS APPLICATION IS SCHED-
ULED FOR CONSIDERATION BY A COMMITTEE DESIGNATED BY THE PUBLIC HEALTH
AND HEALTH PLANNING COUNCIL.
[(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]
INDIVIDUAL AND ENTITY OF THE APPLICANT AND SPECIFY THE IDENTITY OF EVERY
NURSING HOME IN WHICH EACH OF THOSE INDIVIDUALS AND ENTITIES IS, OR IN
THE PRECEDING SEVEN YEARS HAS HELD A CONTROLLING INTEREST OR HAS BEEN A
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
S. 6767 3
controlling person, principal stockholder or principal member]; and the
nature of that interest. AS USED IN THIS SUBDIVISION, "INDIVIDUAL AND
ENTITY OF THE APPLICANT" SHALL INCLUDE BUT NOT BE LIMITED TO AN INDIVID-
UAL OR ENTITY THAT IS A CONTROLLING PERSON, PRINCIPAL STOCKHOLDER, OR
PRINCIPAL MEMBER OF THE APPLICANT. The council shall not approve the
application unless it finds that each [of those individuals and enti-
ties] INDIVIDUAL AND ENTITY, in relation to [each such] OWNERSHIP OF A
nursing home LOCATED IN THE UNITED STATES, for at least the previous
[three] SEVEN years, demonstrated 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 stockholders or principal members of the applicant is
a controlling person, principal stockholder or principal member of a] AT
SUCH nursing home [located in the United States]. The council shall
[not] consider [that], AT A MINIMUM, THE FOLLOWING OCCURRENCES TO DETER-
MINE WHETHER a consistently high level of care has been delivered at a
facility [in the United States that], AND SHALL REQUIRE THE APPLICANT TO
DISCLOSE AND PROVIDE AN EXPLANATION FOR ANY OF THE FOLLOWING OCCUR-
RENCES: (I) A FACILITY THAT has earned a two-star rating or less by the
federal [center] CENTERS for Medicare and Medicaid [Services'] SERVICES
(CMS) (or a comparable rating under a successor CMS rating system)
[or];(II) where there have been violations of the state or federal nurs-
ing home code, or other applicable rules and regulations, that threat-
ened 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; (III) WHERE A FACILITY HAS closed as a result of a settle-
ment agreement from a decertification action or licensure revocation; or
(IV) has been involuntarily terminated from the Medicare or Medicaid
program in the prior five years, provided however, that where an appli-
cant 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.]
§ 2. Section 2803-x of the public health law, as amended by a chapter
of the laws of 2021, amending the public health law relating to require-
ments for residential health care facilities and nursing homes, as
proposed in legislative bills numbers S. 4893-A and A. 5684-A, is
amended to read as follows:
§ 2803-x. Requirements related to nursing homes and related assets and
operations. 1. The operator of a 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-
S. 6767 4
sentatives, staff and their representatives, and the state office of the
long-term care ombudsman.
2. The operator of a nursing home 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 department under this section.
3. The operator of a nursing home 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 nursing home shall notify the department AND THE
STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN 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] CONSULTING, 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 notifi-
cation 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 letter of intent or other contractual agreement as described in
paragraphs a and b of subdivision four of this section.
[7.] 6. Where the operator of a nursing home provides or purports to
provide, by any contract, agreement or arrangement, for any party to
carry out or be delegated any activity or responsibility relating to the
nursing home, that shall not diminish any responsibility or liability
that the operator would otherwise have for any such activity or respon-
sibility or for the operation of the nursing home.
[8.] 7. Any new owner[,] OR 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 CAUSE, AND except for the
nursing home administrator [and], the director of nursing AND ANY OTHER
SUPERVISORS, or any controlling person, principal stockholder or princi-
pal 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]. NOTHING HEREIN SHALL
REQUIRE ANY OWNER OR OPERATOR TO DISCONTINUE ANY PENDING DISCIPLINARY
ACTIONS, INCLUDING BUT NOT LIMITED TO TERMINATION, THAT WERE INITIATED
BEFORE THE SALE OF THE NURSING HOME. NOTHING HEREIN SHALL PREVENT AN
OWNER OR OPERATOR FROM DETERMINING THE OVERALL SIZE OF THE WORKFORCE AT
THE FACILITY, EXCEPT AS PROVIDED OTHERWISE IN THIS SECTION OR OTHER
APPLICABLE LAW.
[9.] 8. In any instance where a 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 adjustments or otherwise
S. 6767 5
funded or reimbursed with resources provided by the state for the
purpose of improvement or transformation.
§ 3. Section 3 of a chapter of the laws of 2021, amending the public
health law relating to requirements for residential health care facili-
ties and nursing homes, as proposed in legislative bills numbers S.
4893-A and A. 5684-A, is amended to read as follows:
§ 3. This act shall take effect [immediately] ON THE ONE HUNDRED
EIGHTIETH DAY AFTER IT SHALL HAVE BECOME A LAW.
§ 4. The opening paragraph of subdivision 11 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, is amended and a new paragraph (e) is added to read as
follows:
Any person filing a proposed certificate of incorporation, articles of
organization or an application for establishment of a residential health
care facility for approval of the public health and health planning
council shall file with the commissioner such information [on the owner-
ship of the property interests in such facility] as [shall] MAY be
prescribed by regulation, including, BUT NOT LIMITED TO, the following:
(E) INFORMATION PERTAINING TO STAFFING, THE SOURCE OF STAFFING, AND
STAFF SKILL MIX.
§ 5. The public health law is amended by adding a new section 2829 to
read as follows:
§ 2829. NURSING HOMES; DISCLOSURE REQUIREMENTS. 1. A NURSING HOME
SHALL POST MAXIMUM RATES TO BE CHARGED FOR RESIDENCY AND SERVICES ON A
PUBLICLY ACCESSIBLE WEBSITE. SUCH POSTING SHALL BE UPDATED ON AN ANNUAL
BASIS NO LATER THAN APRIL FIRST OF EACH YEAR. SUCH POSTING SHALL DETAIL
RATES FOR EACH NON-GOVERNMENTAL PAYER SOURCE.
2. A NURSING HOME SHALL:
(A) PUBLICLY LIST ALL OWNERS ON A WEBSITE MAINTAINED BY THE FACILITY
AND SHALL SUBMIT SUCH LIST TO THE DEPARTMENT FOR POSTING ON ITS WEBSITE
AND UPDATE SUCH INFORMATION WITHIN THIRTY DAYS OF ANY CHANGE OR TRANS-
ACTION AFFECTING OWNERSHIP;
(B) PUBLICLY DISCLOSE ON SUCH FACILITY'S WEBSITE AND REGULARLY UPDATE
THE NAME AND BUSINESS ADDRESS OF ANY LANDLORD OF SUCH FACILITY'S PREM-
ISES; AND
(C) PUBLICLY PROVIDE A SUMMARY OF ALL CONTRACTS FOR PROVISION OF GOODS
OR SERVICES FOR WHICH SUCH FACILITY PAYS WITH ANY PORTION OF MEDICAID OR
MEDICARE FUNDS OR OTHER AGREEMENTS ENTERED INTO BY THE NURSING HOME ON
ITS WEBSITE WITHIN THIRTY DAYS OF EXECUTION OF SUCH AGREEMENT OR
CONTRACT.
3. THE COMMISSIONER MAY MAKE REGULATIONS NECESSARY OR APPROPRIATE TO
IMPLEMENT THIS SECTION.
§ 6. Severability. If any provision of this act, or any application 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 or any
other application of any provision of this act.
§ 7. This act shall take effect immediately, provided, however, that
sections one, two, four, five and six of this act shall take effect on
the same date and in the same manner as a chapter of the laws of 2021,
amending the public health law relating to the requirements for residen-
tial health care facilities and nursing homes, as proposed in legisla-
tive bills numbers S. 4893-A and A. 5684-A, takes effect.
