Assembly Bill A10497

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10497
 
                           I N  A S S E M B L Y
 
                               May 29, 2024
                                ___________
 
 Introduced by COMMITTEE ON RULES -- (at request of M. of A. DiPietro) --
   read once and referred to the Committee on Health
 
 AN  ACT to amend the public health law, in relation to requiring nursing
   homes to permit essential caregivers access during any period in which
   regular visitation is restricted
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  public health law is amended by adding a new section
 2831 to read as follows:
   § 2831. ESSENTIAL CAREGIVERS ACT. 1. WITHIN NINETY DAYS OF THE  EFFEC-
 TIVE  DATE  OF  THIS SECTION, EVERY NURSING HOME SHALL PROVIDE ACCESS TO
 ESSENTIAL  CAREGIVERS  DURING  PERIODS  WHEN  VISITATION  IS   OTHERWISE
 RESTRICTED  BY ORDER OF A FEDERAL, STATE, OR LOCAL AUTHORITY OR BY OTHER
 OPERATION OF LAW.
   2. FOR THE PURPOSES OF THIS SUBDIVISION, THE TERM "ESSENTIAL  CAREGIV-
 ER"  SHALL  MEAN, WITH RESPECT TO A RESIDENT OF A NURSING HOME, AN INDI-
 VIDUAL WHO:
   (A) IS DESIGNATED BY OR ON BEHALF OF THE RESIDENT PURSUANT TO SUBDIVI-
 SIONS THREE OR FOUR OF THIS SECTION; AND
   (B) WILL PROVIDE  ASSISTANCE  TO  SUCH  RESIDENT,  WHICH  MAY  INCLUDE
 ASSISTANCE  WITH  ACTIVITIES  OF  DAILY  LIVING  OR  PROVIDING EMOTIONAL
 SUPPORT OR COMPANIONSHIP TO SUCH RESIDENT.
   3. EVERY NURSING HOME SHALL ALLOW EACH RESIDENT OF SUCH FACILITY TO:
   (A) DESIGNATE AND HAVE ACCESS TO ESSENTIAL CAREGIVERS FOR  SUCH  RESI-
 DENT  AT ALL TIMES, INCLUDING DURING ANY PERIOD IN WHICH REGULAR VISITA-
 TION IS RESTRICTED BY ORDER OF A FEDERAL, STATE, OR LOCAL  AUTHORITY  OR
 BY OTHER OPERATION OF LAW; AND
   (B) AMEND SUCH DESIGNATION AT ANY TIME.
   4.  WHERE  A RESIDENT IS UNABLE, BY REASON OF PHYSICAL OR MENTAL DISA-
 BILITY, TO MAKE  AN  ELECTION  DESCRIBED  IN  SUBDIVISION  TWO  OF  THIS
 SECTION,  THE RESIDENT REPRESENTATIVE FOR SUCH RESIDENT SHALL BE PERMIT-
 TED TO MAKE SUCH DESIGNATION FOR SUCH RESIDENT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD15434-01-4
 A. 10497                            2
              

 
   5. DURING A PERIOD IN WHICH REGULAR VISITATION IS RESTRICTED BY  ORDER
 OF  A FEDERAL, STATE, OR LOCAL AUTHORITY OR BY OTHER OPERATION OF LAW, A
 NURSING HOME SHALL:
   (A)  NOT DENY IN-PERSON ACCESS TO A RESIDENT BY AN ESSENTIAL CAREGIVER
 EXCEPT AS PROVIDED IN THIS SECTION;
   (B) ALLOW AT LEAST ONE ESSENTIAL  CAREGIVER  TO  HAVE  ACCESS  TO  AND
 PROVIDE  ASSISTANCE  TO  SUCH RESIDENT AT SUCH FACILITY EVERY DAY AND AT
 ANY TIME; AND
   (C) ENFORCE ALL SAFETY PROTOCOLS WITH RESPECT TO ESSENTIAL CAREGIVERS.
   6. (A) NO ESSENTIAL CAREGIVER WHO COMPLIES WITH ALL  SAFETY  PROTOCOLS
 AND  OTHER  SAFETY  RULES  WITH RESPECT TO ESSENTIAL CAREGIVERS SHALL BE
 DENIED ACCESS TO THE NURSING HOME OF THE RESIDENT INVOLVED.
   (B) AN ESSENTIAL CAREGIVER SHALL  AGREE  TO  COMPLY  WITH  ALL  SAFETY
 PROTOCOLS  AND  OTHER RULES ESTABLISHED BY SUCH FACILITY, WHICH SHALL BE
 CLEARLY SPECIFIED IN WRITING AND MAY BE MORE RESTRICTIVE THAN THE SAFETY
 PROTOCOLS (INCLUDING SAFETY STANDARDS AND ENTRY REQUIREMENT)  APPLICABLE
 TO STAFF OF SUCH FACILITY.
   (C)  IF  AN ESSENTIAL CAREGIVER FAILS TO COMPLY WITH ANY SAFETY PROTO-
 COLS OF A FACILITY, SUCH FACILITY MUST FIRST PROVIDE A  WARNING  TO  THE
 ESSENTIAL CAREGIVER AND THE RESIDENT, IN WRITING, CITING SPECIFIC ISSUES
 OF NON-COMPLIANCE AND PROVIDING CLEAR GUIDANCE FOR CORRECTIVE MEASURES.
   (D) IF AN ESSENTIAL CAREGIVER OR RESIDENT, AFTER RECEIVING A NOTIFICA-
 TION  OF  NON-COMPLIANCE DESCRIBED IN PARAGRAPH (C) OF THIS SUBDIVISION,
 FAILS TO TAKE CORRECTIVE ACTION, THE ESSENTIAL CAREGIVER MAY SUBSEQUENT-
 LY BE DENIED ACCESS TO THE RESIDENT. IN SUCH CASES, THE  FACILITY  SHALL
 PROVIDE  TO  SUCH  CAREGIVER  AND SUCH RESIDENT (OR HEALTH CARE PROXY OF
 SUCH RESIDENT), NOT LATER THAN TWENTY-FOUR HOURS AFTER  SUCH  DENIAL  OF
 ACCESS OCCURS, A WRITTEN EXPLANATION AS TO WHY SUCH CAREGIVER WAS DENIED
 ACCESS  TO  SUCH  RESIDENT. SUCH EXPLANATION MUST INCLUDE THE RESIDENT'S
 AND CAREGIVER'S OPTIONS FOR APPEAL UNDER THE PROCESSES ESTABLISHED UNDER
 SUBDIVISION SEVEN OF THIS SECTION.
   7. (A) THE COMMISSIONER SHALL ESTABLISH A PROCESS  FOR  RESIDENTS  AND
 CAREGIVERS TO APPEAL DENIALS OF ACCESS.
   (B) THE DEPARTMENT SHALL:
   (I)  RECEIVE APPEALS FROM RESIDENTS AND ESSENTIAL CAREGIVERS CHALLENG-
 ING A DECISION BY A NURSING HOME TO DENY ACCESS UNDER SUBDIVISION SIX OF
 THIS SECTION; AND
   (II) INVESTIGATE ALL SUCH APPEALS WITHIN FORTY-EIGHT HOURS OF RECEIPT.
   (C) UPON APPEAL OF A DENIAL OF ACCESS, THE NURSING HOME SHALL HAVE THE
 BURDEN OF ESTABLISHING THAT THE ESSENTIAL CAREGIVER VIOLATED ANY  PROTO-
 COLS APPLICABLE TO AN ESSENTIAL CAREGIVER.
   (D)  THE DEPARTMENT SHALL MAKE A DETERMINATION AS TO WHETHER A NURSING
 HOME VIOLATED A REQUIREMENT OR PROHIBITION OF  THIS  SUBDIVISION  WITHIN
 FORTY-EIGHT  HOURS OF COMMENCING ITS INVESTIGATION. IF THE AGENCY DETER-
 MINES THAT A FACILITY HAS VIOLATED THE PROVISIONS OF THIS  SECTION,  THE
 DEPARTMENT SHALL:
   (I)  REQUIRE  THE  FACILITY TO ALLOW IMMEDIATE ACCESS TO THE ESSENTIAL
 CAREGIVER IN QUESTION;
   (II) REQUIRE THE FACILITY TO ESTABLISH A  CORRECTIVE  ACTION  PLAN  TO
 PREVENT  THE  RECURRENCE  OF SUCH VIOLATION WITHIN A SEVEN-DAY PERIOD OF
 RECEIVING NOTICE FROM THE AGENCY; AND
   (III) IMPOSE A CIVIL MONETARY PENALTY IN AN AMOUNT TO BE DETERMINED BY
 THE AGENCY (NOT TO EXCEED FIVE THOUSAND DOLLARS) IF SUCH FACILITY  FAILS
 TO  IMPLEMENT  THE  CORRECTIVE  ACTION  PLAN WITHIN THE SEVEN-DAY PERIOD
 SPECIFIED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH.
   § 2. This act shall take effect immediately.