Relates to the transparency and quality of care of operators of adult care facilities; requires certain applicants for adult care facilities to provide an opportunity for public comment on the application.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1124
SPONSOR: Forrest TITLE OF BILL:
An act to amend the social services law, in relation to the transparency
and quality of care of operators of adult care facilities
PURPOSE OR GENERAL IDEA OF THE BILL:
This bill is intended to improve care outcomes and increase respect for
residents' comfort, rights, and autonomy in Adult Care Facilities by
strengthening the accountability and transparency requirements in the
application process for the opening of new Adult Care Facilities. It
introduces a new requirement for the consideration of public comment as
a part of the character and competence review process for new Adult Care
Facilities or change in ownership, which is currently only required for
high-end Assisted Living Residences.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 requires the Department of Health to solicit and consider
public comment as part of the character and competence review prior to
the approval of an existing ACF operator's application for a new Adult
Care Facility or to take over an existing Adult Care Facility.
Section 2 sets the definition of good standing, to lengthen the period
under which an operator shall have had to comply with the requirements
set out in the definition.
Section 3 requires the Department of Health to solicit and consider
public comment as part of the character and competence review prior to
the approval of a new operator for an Adult Care Facility.
JUSTIFICATION:
The current process for approval of applications for the opening of new
Adult Care Facilities (or changes in ownership or certification of
existing ACFs) is different for high-end facilities, which has public
comments, and facilities for low-income New Yorkers, which doesn't. All
New Yorkers, deserve the same meaningful review and approval process for
facilities charged with caring for vulnerable seniors and other people
with disabilities. The absence of comparable accountability measures has
weakened the Department of Health's ability to ensure that operators
applying to run new facilities have a history of providing quality care
and respect for residents' rights, comfort, and autonomy. Unfortunately
today, certain operators that haven't met that standard have been given
a wide berth to continue to expand without a mechanism to ensure that
residents' concerns are taken into account and any outstanding issues
regarding resident treatment are resolved. This bill will fix that. It
provides for the public, including residents and the Long Term Care
Ombudsman Program, to offer feedback in the approval process for new
facilities, and will help ensure that those operators which have a posi-
tive track record of promoting resident dignity and health are the ones
most empowered to expand in the field.
Public comment on applications for new facilities, ownership changes, or
certification changes (to the type or number of beds) would provide the
Department of Health with valuable information about operators' charac-
ter and competence, as experienced by current residents and others who
have first-hand experience with applicants' facilities. Such comments
should be reflected in the Department of Health's character and compe-
tence review.
PRIOR LEGISLATIVE HISTORY:
2021-2022: A9321 (Forrest) - Health Committee
FISCAL IMPLICATIONS:
NONE.
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law. Effective immediately, the addition, amendment,
and/or repeal of any rule or regulation necessary for the implementation
of this act on its effective date are authorized to be made and
completed on or before such effective date.
STATE OF NEW YORK
________________________________________________________________________
1124
2023-2024 Regular Sessions
IN ASSEMBLY
January 13, 2023
___________
Introduced by M. of A. FORREST, AUBRY, DAVILA, EPSTEIN, GIBBS, GLICK,
GONZALEZ-ROJAS, JACKSON, LUCAS, MAMDANI, SEAWRIGHT, SIMON -- read once
and referred to the Committee on Health
AN ACT to amend the social services law, in relation to the transparency
and quality of care of operators of adult care facilities
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (b) of subdivision 2 of section 461-b of the
2 social services law, as amended by chapter 15 of the laws of 2016, is
3 amended to read as follows:
4 (b) For existing licensed operators in good standing and their affil-
5 iates, the department shall develop a streamlined application review and
6 approval process, in collaboration with representatives of associations
7 of operators and representatives of resident advocacy organizations, to
8 be available for use in relation to approval of an additional facility
9 of the same type. Notwithstanding any provision of law or regulation to
10 the contrary, the streamlined application review and approval process
11 shall include, but not be limited to, the following:
12 (i) a certification process and form for the operator or its affiliate
13 to attest that it will have sufficient financial resources, revenue and
14 financing to meet facility expenses and resident needs, which shall
15 satisfy the statutory and regulatory financial component of the applica-
16 tion review and approval process;
17 (ii) a certification process and form for the operator or its affil-
18 iate to attest that its legal, corporate and organizational documents
19 comply in substance with department requirements, which shall satisfy
20 the statutory and regulatory legal component of the application review
21 and approval process;
22 (iii) a certification process and form for the operator or its affil-
23 iate to attest that it is in substantial compliance with all applicable
24 codes, rules and regulations in any other state in which it operates,
25 and to disclose any enforcement or administrative action taken against
26 it in any other state;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00667-01-3
A. 1124 2
1 (iv) for operators of adults homes, enriched housing programs, or
2 residencies for adults, or its affiliates, an opportunity for public
3 comment on the application shall be posted on the department's webpage
4 and by notice to the long-term care ombudsman program. Comments may be
5 submitted by electronic or regular mail, and shall be considered as part
6 of the character and competence review of the application and may be
7 considered the basis for rejecting the application or imposing condi-
8 tions that must be satisfied prior to the expiration of the conditional
9 approval period;
10 (v) a period of public comment and review of no longer than sixty
11 days. Conditional approval shall only be granted once the period of
12 public comment has been closed and the department has duly reviewed and
13 considered any issues which may be relevant to the approval process;
14 (vi) issuance by the department of a conditional approval to operate
15 the facility for a specified period of time upon substantial completion
16 of the character and competence, legal, financial and architectural
17 components of the application, so long as the operator or its affiliate
18 agrees in writing to satisfy all pending conditions prior to the expira-
19 tion of the conditional approval period or a time frame established by
20 the department;
21 [(v)] (vii) issuance by the department of a conditional approval to
22 construct a facility, at the operator's or its affiliate's own risk,
23 upon substantial completion of the architectural component of the appli-
24 cation;
25 [(vi)] (viii) elimination of duplicative submission and review of any
26 application information which has been previously reviewed and approved
27 by the department or any of its regional offices within the past two
28 years through a certification process and form whereby the operator or
29 its affiliate will attest that such application information is duplica-
30 tive;
31 [(vii)] (ix) with respect to any programmatic application information
32 to be reviewed by the regional office, such review shall be conducted
33 on-site by the regional office during the pre-opening inspection or
34 first full annual inspection, if the department has previously approved
35 the operator or its affiliate to operate the same type of program at
36 another facility within the past two years;
37 [(viii)] (x) electronic submission of applications; and
38 [(ix)] (xi) a combined application for licensure as an adult care
39 facility, assisted living residence and/or assisted living program, to
40 the extent the department determines such a combined application is
41 feasible.
42 § 2. Paragraph (b-2) of subdivision 2 of section 461-b of the social
43 services law, as amended by chapter 15 of the laws of 2016, is amended
44 to read as follows:
45 (b-2) For purposes of paragraph (b) of this subdivision, "good stand-
46 ing" shall mean the operator and its affiliates have not: (A) received
47 any official written notice from the department of a proposed revoca-
48 tion, suspension, denial or limitation on the operating certificate of
49 the facility or residence; (B) within the previous [three] five years,
50 been assessed a civil penalty after a hearing conducted pursuant to
51 subparagraph one of paragraph (b) of subdivision seven of section four
52 hundred sixty-d of this article for a violation that has not been recti-
53 fied; (C) within the previous [year] five years, received any official
54 written notice from the department of a proposed assessment of a civil
55 penalty for a violation described in subparagraph two of paragraph (b)
56 of subdivision seven of section four hundred sixty-d of this article;
A. 1124 3
1 (D) within the previous [three] five years, been issued an order pursu-
2 ant to subdivision two, five, six or eight of section four hundred
3 sixty-d of this article; (E) within the previous [three] five years,
4 been placed on, and if placed on, removed from the department's "do not
5 refer list" pursuant to subdivision fifteen of section four hundred
6 sixty-d of this article; or (F) within the previous three years, been
7 cited by the department for a violation of residents' rights regulations
8 pursuant to subdivision three of section four hundred sixty-one-d of
9 this article. Provided, however, that in the case of an operator or
10 affiliate that is not in good standing as provided in this paragraph,
11 the department may permit the operator or affiliate to use the stream-
12 lined application process, in its discretion, if it determines that the
13 disqualifying violation was an isolated occurrence that was promptly
14 corrected by the operator or affiliate.
15 § 3. Paragraph (a) of subdivision 3 of section 461-b of the social
16 services law, as amended by chapter 591 of the laws of 1999, is amended
17 to read as follows:
18 (a) The department shall not approve an application for establishment
19 of an adult care facility unless it is satisfied insofar as applicable,
20 as to (i) the character, competence and standing in the community, of
21 the applicant; provided, however, with respect to any such applicant who
22 is already or within the past ten years has been an incorporator, direc-
23 tor, sponsor, stockholder, operator, administrator, member or owner of
24 any adult care facility which has been issued an operating certificate
25 by the board or the department, or of a halfway house, hostel or other
26 residential facility or of a program or facility licensed or operated by
27 a health, mental hygiene, social services or education agency or depart-
28 ment of this or any state, or a program serving persons with mental
29 disabilities, or other persons with disabilities as defined in subdivi-
30 sion twenty-one of section two hundred ninety-two of the executive law,
31 the aged, children or other persons receiving health, mental hygiene,
32 residential, social or educational services, no approval of such appli-
33 cation shall be granted unless the department shall affirmatively find
34 by substantial evidence as to each such applicant that a substantially
35 consistent high level of care is being or was being rendered in each
36 such facility or institution with which such person is or was affil-
37 iated; for the purposes of this paragraph, there may be a finding that a
38 substantially consistent high level of care has been rendered where
39 there have been violations of applicable rules and regulations, that (1)
40 did not threaten to directly affect the health, safety or welfare of any
41 patient or resident, [and] (2) did not violate rights of a resident of
42 the facility, and (3) were promptly corrected and not recurrent; (ii)
43 the financial resources of the proposed facility and its sources of
44 future revenue; and (iii) such other matters as it shall deem pertinent,
45 including, for adult homes, enriched housing programs, or residences for
46 adults, public comment received by the department. In the case of appli-
47 cations for adult homes, enriched housing programs, or residences for
48 adults, the department shall post on its webpage, and with notice to the
49 long term care ombudsman program, an opportunity for public comment, and
50 shall accept comments by electronic or regular mail.
51 § 4. This act shall take effect on the one hundred eightieth day after
52 it shall have become a law. Effective immediately, the addition, amend-
53 ment and/or repeal of any rule or regulation necessary for the implemen-
54 tation of this act on its effective date are authorized to be made and
55 completed on or before such effective date.
