|SAME AS||No Same As|
|Amd §§2803-d, 3605-a & 12, add §§2803-v, 2803-w, 2803-x & 3605-b, Pub Health L; amd §§460-d, 461-a, 461-c & 461-e, Soc Serv L|
|Relates to enhancing mechanisms to ensure quality standards for licensed or certified providers; relates to enhancing transparency and oversight of residential health care facilities (Part A); relates to requiring the registration of licensed home care services agencies (Part B); relates to enhancing transparency and oversight of adult care facilities (Part C); relates to increasing monetary penalties for public health law violations (Part D).|
|03/19/2018||referred to health|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10139 SPONSOR: Gottfried
TITLE OF BILL: An act to amend the public health law, in relation to enhancing transparency and oversight of residential health care facili- ties (Part A); to amend the public health law, in relation to requiring the registration of licensed home care services agencies (Part B); to amend the social services law, in relation to enhancing transparency and oversight of adult care facilities (Part C); and to amend the public health law, in relation to increasing monetary penalties for public health law violations (Part D)   PURPOSE OF THE BILL: To enhance the quality, safety and transparency of and access to the health system, particularly with respect to long term care services, by improving the availability of relevant information to consumers and the Department of Health (Department) and encouraging conduct that promotes patient safety and improvements in individual and population health.   SUMMARY OF PROVISIONS: Part A of the bill would enact provisions in order to enhance transpar- ency and oversight of nursing homes by 1) amending Public Health Law (PHL) § 2803-d to redefine "physical abuse" as "abuse" and add the misappropriation of resident property to the definition of abuse, 2) adding a new PHL § 2803-v to authorize the Department require a nursing home to contract with an Independent Quality Monitor approved by the Department where warranted due to operational deficiencies demonstrating the existence of certain conditions, 3) adding a new PHL § 2803-w to enhance nursing home transparency by requiring nursing home operators to notify the Department of any common or familial ownership and attesting on an annual basis as to the accuracy of the information on file regard- ing ownership, amongst other new provisions, and 4) adding a new PHL § 2803-x to require nursing homes to provide the facility's approved resi- dency information to prospective residents and to post the information on the facility's website. Part B of the bill would require registration of Licensed Home Care Services Agencies (LHCSA) by amending PHL § 3605-a to provide that no licensed home care services agency shall be permitted to operate unless it has registered with the Department pursuant to new section PHL § 3605-b, which authorizes the imposition of late fees where registration is not made in timely fashion, and requires the Department to seek revo- cation where a LHCSA fails to register for two years, whether or not such years are consecutive. The Department would be required to post on its public website a list of all LHCSAs and the current registration status of each. Part C would enact provisions enhancing transparency and oversight of Adult Care Facilities (ACF) by amending Social Services Law (SSL) § 460-d(7) to 1) authorize the Department to impose monetary penalties upon an ACF after a cited violation rather than only if the operator fails to correct the violation and increase the maximum fines available in cases where the violation involved endangerment from $1,000 per day to $2,000 per day; 2) amend SSL § 460-d(9) to authorize the Department to enter and survey an adult home, enriched housing program, or resi- dence for adults suspected of being a scofflaw facility without a court order if it has reason to believe that one or more conditions or activ- ities at such facility constitute or are likely to give rise to an imme- diate danger to the health of the residents; 3) add a new SSL § 460-d(17) to authorize the Department to require an adult home or an enriched program to contract with an Independent Quality Monitor approved by the Department where-warranted due to operational deficien- cies demonstrating the existence of certain conditions; 4) amend SSL § 461a(2) to provide that inspection reports need not include directions on how compliance can be achieved and add a new SSL § 461-a(5) to extend the survey cycle applicable to the Department's highest rated facilities and permit them to elect to obtain and maintain accreditation in lieu of the Department's regular, unannounced inspections; 5) add a new SSL § 461-c(10) to require the operators of adult homes and enriched housing programs to provide a copy of their approved residency agreement to prospective residents; and 6) add a new SSL § 461-e(3-a) to require adult homes and enriched housing programs to post and provide to resi- dents and prospective residents a summary of any report of inspection based on a complaint issued to the facility by the Department within the previous year. Part D would increase the maximum amounts of fines that can be imposed on individuals that violate the NIL and any notices, orders or regu- lations issued thereunder, and would authorize the Commissioner to rein- vest certain civil penalties collected from providers licensed under PHL Articles 28, 36 or 40 for the purpose of supporting improvements in quality.   JUSTIFICATION: This bill would enhance the quality, safety and transparency of and access to the health system, particularly with respect to long term care services, by improving the availability of relevant information to facilitate decision making and encouraging conduct that promotes patient safety and improvements in individual and population health. The bill would institute or strengthen several mechanisms to encourage improve- ments in performance and compliance with statutory and regulatory stand- ards. Part A of the bill would enhance transparency and improve the Department's oversight of nursing homes. Part B of the bill would strengthen Department oversight over LHCSAs by prohibiting them from operating, providing services, or receiving reimbursement from any source for the provision of such services unless they have registered with the Department. Part C of the bill would enhance transparency and improve the Department's oversight of the ACFs it licenses under SSL Article 7, which includes assisted living residences licensed or certi- fied pursuant to PHL Article 46-B. Part D of the bill would strengthen the maximum monetary penalties for violations of the Public Health Law and related orders and regulations, which currently are not high enough to serve as a sufficient deterrent to improper conduct.   PRIOR LEGISLATIVE HISTORY: This is a new bill.   FISCAL IMPLICATIONS: None of the foregoing proposals are anticipated to result in a direct fiscal impact. However, all are expected to generate long term savings to the overall health system by supporting informed decision making and encouraging conduct that promotes patient safety and improvements in individual and population health.   EFFECTIVE DATE: Effective immediately, provided that the effective date for each part is set forth therein.
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STATE OF NEW YORK ________________________________________________________________________ 10139 IN ASSEMBLY March 19, 2018 ___________ Introduced by M. of A. GOTTFRIED -- (at request of the Department of Health) -- read once and referred to the Committee on Health AN ACT to amend the public health law, in relation to enhancing trans- parency and oversight of residential health care facilities (Part A); to amend the public health law, in relation to requiring the registra- tion of licensed home care services agencies (Part B); to amend the social services law, in relation to enhancing transparency and over- sight of adult care facilities (Part C); and to amend the public health law, in relation to increasing monetary penalties for public health law violations (Part D) The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act enacts into law components of legislation which 2 are necessary to strengthen the department of health's ability to 3 promote quality in the provision of health care, particularly long-term 4 care. Each component is wholly contained within a Part identified as 5 Parts A through D. The effective date for each particular provision 6 contained within such Part is set forth in the last section of such 7 Part. Any provision in any section contained within a Part, including 8 the effective date of the Part, which makes a reference to a section "of 9 this act," when used in connection with that particular component, shall 10 be deemed to mean and refer to the corresponding section of the Part in 11 which it is found. Section three of this act sets forth the general 12 effective date of this act. 13 PART A 14 Section 1. Section 2803-d of the public health law, as amended by 15 chapter 340 of the laws of 1980, subdivision 1 as amended by chapter 230 16 of the laws of 2004, paragraph (c) of subdivision 6 as amended by chap- 17 ter 414 of the laws of 1986, paragraph (d) of subdivision 6 as amended 18 by chapter 622 of the laws of 1980 and paragraph (g) of subdivision 6 as 19 amended by chapter 717 of the laws of 1989, is amended to read as 20 follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14506-01-8A. 10139 2 1 § 2803-d. Reporting abuses of persons receiving care or services in 2 residential health care facilities. 1. The following persons are 3 required to report in accordance with this section when they have 4 reasonable cause to believe that a person receiving care or services in 5 a residential health care facility has been [ physically] abused, 6 mistreated or neglected or subjected to the misappropriation of property 7 by other than a person receiving care or services in the facility: any 8 operator or employee of such facility, [ any person who,] or employee of 9 any corporation, partnership, organization or other entity which, is 10 under contract to provide patient care services in such facility, and 11 any nursing home administrator, physician, medical examiner, coroner, 12 physician's associate, specialist's assistant, osteopath, chiropractor, 13 physical therapist, occupational therapist, registered professional 14 nurse, licensed practical nurse, dentist, podiatrist, optometrist, phar- 15 macist, psychologist, licensed master social worker, licensed clinical 16 social worker, speech pathologist and audiologist. 17 2. In addition to those persons required to report suspected [ phys-18 ical] abuse, mistreatment or neglect or misappropriation of the property 19 of persons receiving care or services in residential health care facili- 20 ties, any other person may make such a report if he or she has reason- 21 able cause to believe that a person receiving care or services has been 22 [ physically] abused, mistreated or neglected in the facility or 23 subjected to the misappropriation of property. 24 3. Reports of suspected [ physical] abuse, mistreatment or neglect or 25 the misappropriation of resident property made pursuant to this section 26 shall be made immediately by telephone and in writing within forty-eight 27 hours to the department. Written reports shall be made on forms supplied 28 by the commissioner and shall include the following information: the 29 identity of the person making the report and where he can be found; the 30 name and address of the residential health care facility; the names of 31 the operator and administrator of the facility, if known; the name of 32 the subject of the alleged [ physical] abuse, mistreatment or neglect or 33 misappropriation, if known; the nature and extent of the [ physical] 34 abuse, mistreatment or neglect or misappropriation; the date, time and 35 specific location of the occurrence; the names of next of kin or spon- 36 sors of the subject of the alleged [ physical] abuse, mistreatment or 37 neglect or misappropriation, if known; and any other information which 38 the person making the report believes would be helpful to further the 39 purposes of this section. Such written reports shall be admissible in 40 evidence, consistent with the provisions of paragraph (f) of subdivision 41 six of this section, in any actions or proceedings relating to [ phys-42 ical] abuse, mistreatment or neglect or misappropriation of the property 43 of persons receiving care or services in residential health care facili- 44 ties. Written reports made other than on forms supplied by the commis- 45 sioner which contain the information required herein shall be treated as 46 if made on such forms. 47 4. Any person who in good faith makes a report pursuant to this 48 section shall have immunity from any liability, civil or criminal, for 49 having made such a report. For the purpose of any proceeding, civil or 50 criminal, the good faith of any person required to report instances of 51 [ physical] abuse, mistreatment or neglect or misappropriation of the 52 property of persons receiving care or services in residential health 53 care facilities shall be presumed. 54 5. Notwithstanding the provisions of section two hundred thirty of 55 this chapter, any licensed person who commits an act of [ physical] 56 abuse, mistreatment or neglect or misappropriation of the property of aA. 10139 3 1 person receiving care or services in a residential health care facility 2 and any licensed person required by this section to report an instance 3 of suspected [ physical] abuse, mistreatment or neglect or misappropri- 4 ation of the property of a person receiving care or services in a resi- 5 dential health care facility who fails to do so shall be guilty of 6 unprofessional conduct in the practice of his or her profession. 7 6. (a) Upon receipt of a report made pursuant to this section, the 8 commissioner shall cause an investigation to be made of the allegations 9 contained in the report. Notification of the receipt of a report shall 10 be made immediately by the department to the appropriate district attor- 11 ney if a prior request in writing has been made to the department by the 12 district attorney. Prior to the completion of the investigation by the 13 department, every reasonable effort shall be made to notify, personally 14 or by certified mail, any person under investigation for having commit- 15 ted an act of [ physical] abuse, mistreatment or neglect or misappropri- 16 ation of property. The commissioner shall make a written determination, 17 based on the findings of the investigation, of whether or not sufficient 18 credible evidence exists to sustain the allegations contained in the 19 report or would support a conclusion that a person not named in such 20 report has committed an act of [ physical] abuse, neglect or mistreatment 21 or misappropriation of property. A copy of such written determination, 22 together with a notice of the right to a hearing as provided in this 23 subdivision, shall be sent by registered or certified mail to each 24 person who the commissioner has determined has committed an act of 25 [ physical] abuse, neglect or mistreatment or misappropriation of proper- 26 ty. A letter shall be sent to any other person alleged in such report to 27 have committed such an act stating that a determination has been made 28 that there is not sufficient evidence to sustain the allegations relat- 29 ing to such person. A copy of each such determination and letter shall 30 be sent to the facility in which the alleged incident occurred. 31 (b) The commissioner may make a written determination, based on the 32 findings of the investigation, that sufficient credible evidence exists 33 to support a conclusion that a person required by this section to report 34 suspected [ physical] abuse, mistreatment or neglect or misappropriation 35 of property had reasonable cause to believe that such an incident 36 occurred and failed to report such incident. A copy of such written 37 determination, together with a notice of the right to a hearing as 38 provided in this subdivision, shall be sent by registered or certified 39 mail to each person who the commissioner has determined has failed to 40 report as required by this section. 41 (c) All information relating to any allegation which the commissioner 42 has determined would not be sustained shall be expunged one hundred 43 twenty days following notification of such determination to the person 44 who made the report pursuant to this section, unless a proceeding 45 pertaining to such allegation is pending pursuant to article seventy- 46 eight of the civil practice law and rules. Whenever information is 47 expunged, the commissioner shall notify any official notified pursuant 48 to paragraph (a) of this subdivision that the information has been 49 expunged. 50 (d) At any time within thirty days of the receipt of a copy of a 51 determination made pursuant to this section, a person named in such 52 determination as having committed an act of [ physical] abuse, neglect or 53 mistreatment or misappropriation of resident property, or as having 54 failed to report such an incident, may request in writing that the 55 commissioner amend or expunge the record of such report, to the extent 56 such report applies to such person, or such written determination. IfA. 10139 4 1 the commissioner does not comply with such request within thirty days, 2 such person shall have the right to a fair hearing to determine whether 3 the record of the report or the written determination should be amended 4 or expunged on the grounds that the record is inaccurate or the determi- 5 nation is not supported by the evidence. The burden of proof in such 6 hearing shall be on the department. Whenever information is expunged, 7 the commissioner shall notify any official notified pursuant to para- 8 graph (a) of this subdivision that the information has been expunged. 9 (e) Except as hereinafter provided, any report, record of the investi- 10 gation of such report and all other information related to such report 11 shall be confidential and shall be exempt from disclosure under article 12 six of the public officers law. 13 (f) Information relating to a report made pursuant to this section 14 shall be disclosed under any of the following conditions: 15 (i) pursuant to article six of the public officers law after expunge- 16 ment or amendment, if any, is made in accordance with a hearing 17 conducted pursuant to this section, or at least forty-five days after a 18 written determination is made by the commissioner concerning such 19 report, whichever is later; provided, however, that the identity of the 20 person who made the report, the victim, or any other person named, 21 except a person who the commissioner has determined committed an act of 22 [ physical] abuse, neglect or mistreatment or misappropriation of resi- 23 dent property, shall not be disclosed unless such person authorizes such 24 disclosure; 25 (ii) as may be required by the penal law or any lawful order or 26 warrant issued pursuant to the criminal procedure law; or 27 (iii) to a person who has requested a hearing pursuant to this 28 section, information relating to the determination upon which the hear- 29 ing is to be conducted; provided, however, that the identity of the 30 person who made the report or any other person who provided information 31 in an investigation of the report shall not be disclosed unless such 32 person authorizes such disclosure. 33 (g) Where appropriate, the commissioner shall report instances of 34 [ physical] abuse, mistreatment or neglect or misappropriation of resi- 35 dent property or the failure to report as required by this section, to 36 the appropriate committee on professional conduct for the professions 37 enumerated in subdivision one of this section when a determination has 38 been made after the commissioner has provided an opportunity to be 39 heard. The commissioner shall report instances of [ physical] abuse, 40 mistreatment, neglect or misappropriation of resident property by a 41 nurse aide or other unlicensed individual and any brief statement by the 42 nurse aide or other unlicensed individual disputing the finding to the 43 nursing home nurse aide registry established pursuant to section twen- 44 ty-eight hundred three-j of this article when a determination has been 45 made after the commissioner has provided an opportunity to be heard. 46 7. In addition to any other penalties prescribed by law, any person 47 who commits an act of [ physical] abuse, neglect or mistreatment or 48 misappropriation of resident property, or who fails to report such an 49 act as provided in this section, shall be deemed to have violated this 50 section and shall be liable for a penalty pursuant to section twelve of 51 this chapter after an opportunity to be heard pursuant to this section. 52 8. No residential health care facility or officer or employee thereof 53 shall discharge or in any manner discriminate or retaliate against any 54 person in any residential health care facility, or any relative, or 55 sponsor thereof, or against any employee of the facility, or against any 56 other person because such person, relative, legal representative, spon-A. 10139 5 1 sor or employee has made, or is about to make, a report pursuant to this 2 section, or has testified, or is about to testify, in any proceeding 3 relating to [ physical] abuse, mistreatment or neglect or misappropri- 4 ation of the property of a person receiving care or services in a resi- 5 dential health care facility. The supreme court may grant injunctive 6 relief to any person subject to such retaliation or discrimination. Any 7 violation of this subdivision shall be punishable pursuant to section 8 twelve of this chapter. 9 9. No later than March fifteenth of every year the commissioner shall 10 prepare and transmit to the governor and the legislature a report on the 11 incidents of [ physical] abuse, mistreatment and neglect or misappropri- 12 ation of the property of persons receiving care or services in residen- 13 tial health care facilities. No information concerning any individual or 14 facility shall be disclosed in a report made pursuant to this subdivi- 15 sion, or in any other report, except information which would be avail- 16 able pursuant to article six of the public officers law as provided in 17 this section. Nothing in this section shall be construed to prohibit the 18 maintenance or disclosure of, or require the expungement of, statistical 19 data which would not reveal the identity of any person or facility. 20 10. An investigation shall be made of each incident reported pursuant 21 to this section, but only the provisions of paragraphs (e) and (f) of 22 subdivision six, and subdivisions two, four, eight and nine shall apply 23 to [ physical] abuse or misappropriation of resident property by persons 24 receiving care or services in residential health care facilities. 25 11. The commissioner shall adopt rules and regulations necessary to 26 implement this section. 27 § 2. The public health law is amended by adding a new section 2803-v 28 to read as follows: 29 § 2803-v. Independent quality monitors for residential health care 30 facilities. The department may require a residential health care facili- 31 ty to contract with an independent quality monitor approved by the 32 department, pursuant to a selection process conducted notwithstanding 33 sections one hundred twelve or one hundred sixty-three of the state 34 finance law, for purposes of monitoring the operator's compliance with a 35 corrective plan and reporting to the department on the implementation of 36 such corrective action, when the department has determined in its 37 discretion that operational deficiencies exist at such facility that 38 show: 39 1. a condition or conditions in substantial violation of the standards 40 for health, safety, or resident care established in law or regulation 41 that constitute a danger to resident health or safety; 42 2. a pattern or practice of habitual violation of the standards of 43 health, safety, or resident care established in law or regulation; or 44 3. any other condition dangerous to resident life, health, or safety. 45 § 3. The public health law is amended by adding a new section 2803-w 46 to read as follows: 47 § 2803-w. Requirements related to residential health care facilities 48 and related assets. 1. The operator of a residential health care facili- 49 ty shall notify the commissioner of any common or familial ownership of 50 any corporation or individual providing services to the operator. 51 2. The operator of a residential health care facility shall, on an 52 annual basis, attest to the department, in a form determined by the 53 department, to the accuracy of the information on file with the depart- 54 ment regarding the ownership of the licensed corporation, real estate, 55 and corporations providing services to the operator.A. 10139 6 1 3. The operator of a residential health care facility may not enter 2 into any arrangement to guarantee the debt or other obligation of a 3 party which has not received establishment approval. 4 4. The operator of a residential health care facility shall notify the 5 department at least ninety days prior to executing a letter of intent or 6 other contractual agreement related to the sale of the real property of 7 the facility. 8 5. In any instance where a residential health care facility is sold or 9 otherwise transferred and used for a purpose which is not a health care 10 purpose, the operator shall remit to the department from the sale 11 proceeds an amount equivalent to the undepreciated value of capital 12 assets for which the provider has been reimbursed through Medicaid or 13 otherwise funded with resources provided by the state. 14 § 4. The public health law is amended by adding a new section 2803-x 15 to read as follows: 16 § 2803-x. Provision of residency agreement. The operator of a resi- 17 dential health care facility shall provide to prospective residents who 18 inquire about admission, and post on its website, a copy of the facili- 19 ty's entire approved residency agreement, including the non-governmental 20 rates charged to residents. 21 § 5. This act shall take effect immediately. 22 PART B 23 Section 1. Subdivision 2 of section 3605-a of the public health law, 24 as added by chapter 959 of the laws of 1984, is amended to read as 25 follows: 26 2. No such license shall be revoked, suspended, limited, annulled or 27 denied without a hearing. However, a license may be temporarily 28 suspended or limited without a hearing for a period not in excess of 29 thirty days upon written notice to the agency following a finding by the 30 department that the public health or safety is in imminent danger. 31 Notwithstanding the provisions of this section, no licensed home care 32 services agency shall be permitted to operate unless it has registered 33 with the department pursuant to section thirty-six hundred five-b of 34 this article. 35 § 2. The public health law is amended by adding a new section 3605-b 36 to read as follows: 37 § 3605-b. Registration of licensed home care services agencies. 1. 38 Notwithstanding any provision of law to the contrary, no licensed home 39 care services agency (LHCSA) licensed pursuant to section thirty-six 40 hundred five of this article shall be operated, provide nursing 41 services, home health aide services, or personal care services, or 42 receive reimbursement from any source for the provision of such services 43 during any period of time on or after January first, two thousand nine- 44 teen, unless it has registered with the commissioner in a manner 45 prescribed by the department. The requirements of this section shall not 46 apply to home care services agencies certified pursuant to section thir- 47 ty-six hundred eight of this article. 48 2. A LHCSA that fails to submit a complete and accurate set of all 49 required registration materials by the deadline established by the 50 commissioner in regulation shall be required to pay a fee of five 51 hundred dollars for each month or part thereof that the LHCSA is in 52 default. A LHCSA that failed to register in the prior year by the dead- 53 line of the current year shall not be permitted to register for the 54 upcoming registration period unless it submits any unpaid late fees.A. 10139 7 1 3. The department shall post on its public website a list of all 2 LHCSAs, which shall indicate the current registration status of each 3 LHCSA. 4 4. The commissioner shall promulgate such rules and regulations as are 5 necessary to effectuate the provisions of this section including, but 6 not limited to, prescribing the manner of submission of registration 7 materials, setting an annual deadline for submission of registration 8 materials, and establishing other reasonable requirements. 9 5. The department shall institute proceedings to revoke the license of 10 any LHCSA that fails to register for two annual registration periods, 11 whether or not such periods are consecutive. The department shall have 12 the discretion to pursue revocation of the license of a LCHSA on grounds 13 that it evinces a pattern of late registration over the course of multi- 14 ple years. 15 § 3. This act shall take effect immediately. 16 PART C 17 Section 1. Paragraphs (a) and (b) of subdivision 7 of section 460-d of 18 the social services law, paragraph (a) as amended by chapter 719 of the 19 laws of 1989, paragraph (b) as amended by chapter 524 of the laws of 20 1984 and subparagraph 2 of paragraph (b) as amended by chapter 733 of 21 the laws of 1994, are amended to read as follows: 22 (a) The department shall adopt regulations establishing civil penal- 23 ties of up to one thousand dollars per day to be assessed against all 24 adult care facilities except facilities operated by a social services 25 district for violations of (i) regulations of the department pertaining 26 to the care of residents in such facilities, (ii) paragraph (a) of 27 subdivision three of section four hundred sixty-one-a of this chapter, 28 or (iii) an order issued pursuant to subdivision eight of this section; 29 provided, however, that civil penalties of up to two thousand dollars 30 per day may be assessed pursuant to subparagraph two of paragraph (b) of 31 this subdivision. The regulations shall specify the violations subject 32 to penalty and the amount of the penalty to be assessed in connection 33 with each such violation and shall specify that only civil penalties of 34 up to one thousand dollars per day per violation shall be assessed 35 pursuant to this paragraph against an adult care facility found respon- 36 sible for an act of retaliation or reprisal against any resident, 37 employee, or other person for having filed a complaint with or having 38 provided information to any long term care patient ombudsman functioning 39 in accordance with section [ five hundred forty-four or five hundred40 forty-five] two hundred eighteen of the [ executive] elder law. 41 (b) (1) In addition to any other civil or criminal penalty provided by 42 law, the department shall have the power to assess civil penalties in 43 accordance with its regulations adopted pursuant to paragraph (a) of 44 this subdivision, after a hearing conducted in accordance with the 45 procedures established by regulations of the department. Such procedures 46 shall require that notice of the time and place of the hearing, together 47 with a statement of charges of violations, shall be served in person or 48 by certified mail addressed to the facility at least thirty days prior 49 to the date of the hearing. The statement of charges of violations shall 50 set forth the existence of the violations[ ,] and the amount of penalty 51 for which it may become liable [ and the steps which must be taken to52 rectify the violation and, where applicable, a statement that the53 department contends that a penalty may be imposed under this paragraph54 regardless of rectification]. An answer to the charges of violations, inA. 10139 8 1 writing, shall be filed with the department, not less than ten days 2 prior to the date of hearing. The answer shall notify the department of 3 the facility's position with respect to each of the charges and shall 4 include all matters which if not disclosed in the answer would be likely 5 to take the department by surprise. The commissioner, or a member of his 6 staff who is designated and authorized by him to hold such hearing, may 7 in his discretion allow the facility to prove any matter not included in 8 the answer. [ Where the facility satisfactorily demonstrates that it9 either had rectified the violations within thirty days of receiving10 written notification of the results of the inspection pursuant to11 section four hundred sixty-one-a of this chapter, or had submitted with-12 in thirty days an acceptable plan for rectification and was rectifying13 the violations in accordance with the steps and within the additional14 periods of time as accepted by the department in such plan, no penalty15 shall be imposed, except as provided in subparagraph two of this para-16 graph.] 17 (2) [ Rectification shall not preclude the assessment of a penalty] 18 Civil penalties of up to two thousand dollars per day may be assessed 19 against any adult care facility except those operated by a social 20 services district if the department establishes at a hearing that a 21 particular violation[ , although corrected,] endangered or resulted in 22 harm to any resident as the result of: 23 (i) the total or substantial failure of the facility's fire detection 24 or prevention systems, or emergency evacuation procedures prescribed by 25 department safety standard regulations; 26 (ii) the retention of any resident who has been evaluated by the resi- 27 dent's physician as being medically or mentally unsuited for care in the 28 facility or as requiring placement in a hospital or residential health 29 care facility and for whom the operator is not making persistent efforts 30 to secure appropriate placement; 31 (iii) the failure in systemic practices and procedures; 32 (iv) the failure of the operator to take actions as required by 33 department regulations in the event of a resident's illness or accident; 34 (v) the failure of the operator to provide at all times supervision of 35 residents by numbers of staff at least equivalent to the night staffing 36 requirement set forth in department regulations; or 37 (vi) unreasonable threats of retaliation or taking reprisals, includ- 38 ing but not limited to unreasonable threats of eviction or hospitaliza- 39 tion against any resident, employee or other person who makes a 40 complaint concerning the operation of an adult care facility, partic- 41 ipates in the investigation of a complaint or is the subject of an 42 action identified in a complaint. 43 The department shall specify in its regulations those regulations to 44 which this subparagraph two shall apply. 45 (3) In assessing penalties pursuant to this paragraph, the department 46 shall consider [ promptness of rectification,] delay occasioned by the 47 department[ ,] and the specific circumstances of the violations as miti- 48 gating factors. 49 § 2. Paragraph (c) of subdivision 9 of section 460-d of the social 50 services law is amended by adding a new subparagraph (iv) to read as 51 follows: 52 (iv) If the department of health determines, based on a complaint or 53 other facts known to the department, that there is reason to believe 54 that an individual or entity is operating an adult home, enriched hous- 55 ing program, or residence for adults which does not possess a valid 56 operating certificate issued by the department, and that one or moreA. 10139 9 1 conditions or activities at such facility constitute or are likely to 2 give rise to an immediate danger to the health of the residents, and 3 awaiting a court order pursuant to subparagraph (iii) of this paragraph 4 would be seriously detrimental to the health of such residents, the 5 department of health may, notwithstanding an objection by the operator, 6 administrator or other person in charge, inspect the entire premises, 7 which shall include access to all dwellings on the said property which 8 house tenants/occupants as well as access to such tenants/occupants, for 9 the purpose of ascertaining whether such danger exists or is likely to 10 arise on an immediate basis. The department of health may request the 11 assistance of local law enforcement for purposes of carrying out such 12 inspection and may take any appropriate action if it determines that 13 such danger exists or is likely to arise, including issuing a written 14 notice directing the operator, administrator or other person in charge 15 of such facility to cease or correct the condition or activity at issue. 16 As promptly as possible thereafter, within a period not to exceed 17 fifteen days, the commissioner shall provide the operator an opportunity 18 to be heard and to present any proof that such condition or activity 19 does not constitute a danger to the health of the residents of such 20 facility. The attorney general, upon request of the department of 21 health, shall be authorized to apply to the supreme court in the county 22 in which the facility is located for an order for any appropriate addi- 23 tional relief. 24 § 3. Section 460-d of the social services law is amended by adding a 25 new subdivision 17 to read as follows: 26 17. The department of health may require the operator of an adult home 27 or an enriched housing program to contract with an independent quality 28 monitor approved by the department, pursuant to a selection process 29 conducted notwithstanding sections one hundred twelve or one hundred 30 sixty-three of the state finance law, for purposes of monitoring the 31 operator's compliance with a corrective plan and reporting to the 32 department on the implementation of such corrective action, where the 33 department has determined in its discretion that operational deficien- 34 cies exist at such facility that show: (a) a condition or conditions in 35 substantial violation of the standards for health, safety, or resident 36 care established in law or regulation that constitute a danger to resi- 37 dent health or safety; (b) a pattern or practice of habitual violation 38 of the standards of health, safety, or resident care established in law 39 or regulation; or (c) any other condition dangerous to resident life, 40 health, or safety. 41 § 4. Subdivision 2 of section 461-a of the social services law, as 42 amended by chapter 601 of the laws of 1981, paragraphs (a) and (c) as 43 amended and paragraph (d) as added by chapter 735 of the laws of 1994, 44 and paragraph (e) as added by chapter 601 of the laws of 1981 and as 45 relettered by chapter 735 of the laws of 1994, is amended and a new 46 subdivision 5 is added to read as follows: 47 2. (a) With respect to adult care facilities the department shall 48 conduct a minimum of one unannounced inspection of each such facility to 49 determine the adequacy of care being rendered, pursuant to the follow- 50 ing: 51 (1) Such facilities receiving the department's highest rating shall be 52 inspected at least once every eighteen months on an unannounced basis. 53 (2) All other such facilities shall be inspected on an unannounced 54 basis no less than annually. The commissioner may provide for more 55 frequent inspections of any such facilities. Such inspection shall not 56 be required with respect to any facility for which the commissioner hasA. 10139 10 1 delegated responsibility for inspection and supervision to a social 2 services official pursuant to section four hundred sixty-c of this chap- 3 ter. Any employee of the department or a social services district who 4 gives or causes to be given advance notice of such unannounced 5 inspections to any unauthorized persons shall, in addition to any other 6 penalty provided by law, be suspended by the department or the social 7 services district from all duties without pay for at least five days or 8 for such greater period of time as the department or social services 9 district shall determine. Any such suspension shall be made by the 10 department or social services district in accordance with all other 11 applicable provisions of law. 12 (b) The department or a social services district, where appropriate, 13 shall each year conduct a minimum of one full inspection of each adult 14 care facility. Such inspection shall include, but shall not be limited 15 to, examination of the medical, dietary and social services records of 16 the facility as well as the minimum standards of construction, life 17 safety standards, quality and adequacy of care, rights of residents, 18 payments and all other areas of operation. The purpose of any inspection 19 shall be to determine compliance with requirements of applicable 20 provisions of law and regulations of the department. 21 (c) An inspection report shall be made of each inspection which shall 22 clearly identify and indicate in detail each area of operation, includ- 23 ing, but not limited to, the premises, equipment, personnel, resident 24 care and services, and whether each such area of operation or any of its 25 component parts is or is not in compliance with the regulations of the 26 department and all other applicable requirements. It also shall identify 27 those areas of operation or any of its component parts found not in 28 compliance as a result of failure in systemic practices and procedures. 29 The operator shall be notified of the results of the inspection in a 30 manner to be determined by regulations of the department. [ Such notifi-31 cation shall contain directions as may be appropriate as to the manner32 and time in which compliance with applicable requirements of law or33 regulations of the department shall be effected.] The department shall 34 also require the operator of an adult home or residence for adults to 35 develop, biannually update and implement plans for quality assurance 36 activities for each area of operation. Quality assurance activities 37 include but are not limited to, development and maintenance of perform- 38 ance standards, measurement of adherence to such standards and to appli- 39 cable state and local laws and regulations, identification of perform- 40 ance failures, design, and implementation of corrective action. 41 (d) Systemic practices or procedures are those activities related to 42 each area of operation which indicate a pattern or an inability to bring 43 the operation of the facility into compliance with applicable provisions 44 of laws and regulations. 45 (e) Nothing contained in this subdivision shall limit or restrict the 46 ability of the department or social services district, where appropri- 47 ate, to conduct more than one inspection of an adult care facility, for 48 whatever purpose, as is deemed necessary for ensuring compliance with 49 applicable provisions of law and regulations of the department. 50 5. With respect to adult homes and enriched housing programs licensed 51 by the department of health, facilities other than those referenced in 52 subdivision one of this section and which have received the department 53 of health's highest rating may elect to obtain and maintain accredi- 54 tation in lieu of the unannounced inspection referenced in subdivision 55 two of this section. Such accreditation shall be by one or more nation- 56 ally-recognized accrediting agencies as determined by the commissioner.A. 10139 11 1 The department of health shall require that such agencies report data 2 and information pertaining to adult homes and enriched housing programs 3 which are accredited by such agencies, which seek and do not receive 4 such accreditation, and which attain but lose such accreditation, in a 5 manner and form determined by the department. Adult homes and enriched 6 housing programs which attain but lose accreditation shall report such 7 loss to the department promptly in a manner and form determined by the 8 department of health. Notwithstanding the provisions of subdivision two 9 of this section, facilities receiving the department of health's highest 10 rating that do not elect to attain and maintain accreditation shall be 11 inspected at least once every twenty-four months. 12 § 5. Section 461-c of the social services law is amended by adding a 13 new subdivision 10 to read as follows: 14 10. The operator of an adult home or an enriched housing program shall 15 provide to prospective residents who inquire about admission, and shall 16 post on its website, a copy of the facility's approved 17 admission/residency agreement, including the rates charged to residents. 18 § 6. Section 461-e of the social services law is amended by adding a 19 new subdivision 3-a to read as follows: 20 3-a. Every adult home and enriched housing program shall: 21 (a) Post in a prominent position in the facility so as to be accessi- 22 ble to all residents and to the general public, a summary of any report 23 of inspection based on a complaint issued by the department of health to 24 the facility within the previous year. 25 (b) Provide to any resident and each applicant for admission an oppor- 26 tunity to review any report of inspection based on a complaint issued by 27 the department of health to the facility within the previous year. 28 § 7. This act shall take effect immediately; provided that any penal- 29 ties assessed solely as a result of the amendments to section 460-d of 30 the social services law made by section one of this act shall apply only 31 to violations that occur on and after such date. 32 PART D 33 Section 1. Subdivision 1 of section 12 of the public health law, as 34 amended by section 16 of part A of chapter 58 of the laws of 2008, is 35 amended to read as follows: 36 1. (a) Except as provided in paragraphs (b) and (c) of this subdivi- 37 sion, any person who violates, disobeys or disregards any term or 38 provision of this chapter or of any lawful notice, order or regulation 39 pursuant thereto for which a civil penalty is not otherwise expressly 40 prescribed by law, shall be liable to the people of the state for a 41 civil penalty of not to exceed [ two] five thousand dollars for every 42 such violation. 43 (b) The penalty provided for in paragraph (a) of this subdivision may 44 be increased to an amount not to exceed [ five] ten thousand dollars for 45 a subsequent violation if the person committed the same violation, with 46 respect to the same or any other person or persons, within twelve months 47 of the initial violation for which a penalty was assessed pursuant to 48 paragraph (a) of this subdivision and said violations were a serious 49 threat to the health and safety of an individual or individuals. 50 (c) The penalty provided for in paragraph (a) of this subdivision may 51 be increased to an amount not to exceed [ ten] twenty thousand dollars if 52 the violation directly results in serious physical harm to any patient 53 or patients.A. 10139 12 1 (d) Effective on and after April first, two thousand eight the comp- 2 troller is hereby authorized and directed to deposit amounts collected 3 in excess of two thousand dollars but less than ten thousand dollars per 4 violation to the patient safety center account to be used for purposes 5 of the patient safety center created by title two of article twenty- 6 nine-D of this chapter. 7 (e) Effective on and after April first, two thousand eighteen, amounts 8 collected from providers licensed under article twenty-eight, thirty- 9 six, or forty of this chapter in excess of ten thousand dollars per 10 violation may be used by the commissioner, notwithstanding sections one 11 hundred twelve or one hundred sixty-three of the state finance law, for 12 initiatives that, in the discretion of the commissioner, are likely to 13 improve the quality of care or quality of life of patients or residents 14 served by such providers; provided that amounts collected from providers 15 pursuant to this paragraph may be used for improvement activities to 16 benefit service delivery within the same licensure category. Such 17 purposes may include, but are not limited to, activities designed to 18 improve the quality, performance and compliance of poorly performing 19 providers; training and educating provider staff; sharing best prac- 20 tices; and improving patient, resident and consumer involvement in 21 ensuring and improving quality of care or quality of life at facilities. 22 § 2. This act shall take effect immediately; provided that: 23 (a) any penalties available solely as a result of the amendments to 24 subdivision 1 of section 12 of the public health law, made by section 25 one of this act shall apply only to violations that occur on and after 26 such date; and 27 (b) the amendments to subdivision 1 of section 12 of the public health 28 law made by section one of this act shall not affect the expiration of 29 such subdivision and shall be deemed to expire therewith. 30 § 2. Severability clause. If any clause, sentence, paragraph, subdivi- 31 sion, section or part of this act shall be adjudged by any court of 32 competent jurisdiction to be invalid, such judgment shall not affect, 33 impair, or invalidate the remainder thereof, but shall be confined in 34 its operation to the clause, sentence, paragraph, subdivision, section 35 or part thereof directly involved in the controversy in which such judg- 36 ment shall have been rendered. It is hereby declared to be the intent of 37 the legislature that this act would have been enacted even if such 38 invalid provisions had not been included herein. 39 § 3. This act shall take effect immediately, provided, however, that 40 the applicable effective date of Parts A through D of this act shall be 41 as specifically set forth in the last section of such Parts.