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A00196 Summary:

BILL NOA00196C
 
SAME ASSAME AS S01576-C
 
SPONSORGottfried
 
COSPNSRBronson, Steck, Galef, Rosenthal L, Abinanti, Benedetto, Dinowitz, Hyndman, Lupardo, Sayegh, Barron, Darling, Seawright, Englebright, Colton, Stirpe, Griffin, Jacobson, Epstein, Walker, Perry, Simon, Jackson, Forrest, Cruz, Carroll, Frontus, Hunter, Meeks, Fernandez, Wallace, McMahon, Lunsford, Clark, Rivera J, Kelles, Quart, Mitaynes, Zinerman, Reyes, Gibbs, Glick, Mamdani
 
MLTSPNSRCook, Thiele
 
Amd §§460-d, 461-c, 461-d, 461-e & 461-a, Soc Serv L; amd §29.15, Ment Hyg L
 
Relates to violations of safety conditions in adult care facilities; provides penalties for safety violations and operating without a valid license; prohibits reductions in fines in certain circumstances where a patient is endangered or harmed.
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A00196 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         196--C
                                                                  Cal. No. 8
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  M. of A. GOTTFRIED, BRONSON, STECK, GALEF, L. ROSENTHAL,
          ABINANTI, BENEDETTO,  DINOWITZ,  HYNDMAN,  LUPARDO,  SAYEGH,  DARLING,
          SEAWRIGHT,  ENGLEBRIGHT,  COLTON,  STIRPE, GRIFFIN, JACOBSON, EPSTEIN,
          WALKER, SIMON,  JACKSON,  FORREST,  CRUZ,  CARROLL,  FRONTUS,  HUNTER,
          MEEKS,   FERNANDEZ,  WALLACE,  McMAHON,  LUNSFORD,  CLARK,  J. RIVERA,
          KELLES, QUART, MITAYNES, ZINERMAN, REYES, GIBBS, GLICK --  Multi-Spon-
          sored  by  --  M.  of A. COOK, THIELE -- read once and referred to the
          Committee on Health -- ordered to a third reading, amended and ordered
          reprinted, retaining its place on the order of third reading --  again
          amended  on  third  reading, ordered reprinted, retaining its place on
          the order of third reading -- again amended on third reading,  ordered
          reprinted, retaining its place on the order of third reading
 
        AN  ACT  to amend the social services law and the mental hygiene law, in
          relation to violations of safety conditions in 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 4 of section 460-d of the
     2  social services law, as amended by chapter 733 of the laws of  1994,  is
     3  amended to read as follows:
     4    (b)  No  operating  certificate shall be revoked, suspended or limited
     5  without a hearing held in  accordance  with  procedures  established  by
     6  department  regulations,  which  procedures shall require that notice of
     7  the time and place of the hearing, and notice of the charges,  shall  be
     8  served in person or by certified mail addressed to the facility at least
     9  thirty  days  prior  to the date of the hearing. A written answer to the
    10  charges may be filed with the department not less than ten business days
    11  prior to the date of the hearing. An operating certificate  may,  never-
    12  theless,  be  suspended or limited without a hearing for a period not in
    13  excess of sixty days, upon written notice to the  facility  following  a
    14  finding  by  the  department  that the public health, or an individual's
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00265-06-2

        A. 196--C                           2
 
     1  health, safety or welfare, are in imminent  danger;  provided,  however,
     2  that  if  the  department  demonstrates reasonable efforts to commence a
     3  hearing within such sixty day period and to complete such hearing within
     4  a  reasonable  period  of  time,  the  hearing officer may authorize the
     5  department to extend the period  of  suspension  or  limitation  for  an
     6  appropriate  period of time, but in no event beyond an additional thirty
     7  days.
     8    § 2. Subdivision 7 of section 460-d of the  social  services  law,  as
     9  added  by  chapter  669 of the laws of 1977, paragraph (a) as amended by
    10  chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524
    11  of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap-
    12  ter 733 of the laws of 1994, is amended to read as follows:
    13    7. (a) The  department  shall  adopt  regulations  establishing  civil
    14  penalties  of  up  to  [one] two thousand dollars per day per violation,
    15  and, for repeat violations, under subparagraph two of paragraph  (c)  of
    16  this  subdivision  for  which  a prior penalty was assessed, up to three
    17  thousand dollars per day per violation to be assessed against all  adult
    18  care facilities except facilities operated by a social services district
    19  for  violations  of  (i) regulations of the department pertaining to the
    20  care of residents in such facilities, (ii) paragraph (a) of  subdivision
    21  three  of section four hundred sixty-one-a of this [chapter] article, or
    22  (iii) an order issued pursuant to subdivision eight of this section. The
    23  regulations shall specify the violations  subject  to  penalty  and  the
    24  amount  of  the  penalty  to  be  assessed  in connection with each such
    25  violation and shall specify that only civil penalties of up to [one] two
    26  thousand dollars per day per violation shall  be  assessed  pursuant  to
    27  this  paragraph  against an adult care facility found responsible for an
    28  act of retaliation or reprisal against any resident, employee, or  other
    29  person  for having filed a complaint with or having provided information
    30  to any long term care [patient] ombudsman functioning in accordance with
    31  section [five hundred forty-four or five hundred forty-five] two hundred
    32  eighteen of the [executive] elder law.
    33    (b) [(1)] In addition to any other civil or criminal penalty  provided
    34  by law, the department shall have the power to assess civil penalties in
    35  accordance  with  its  regulations  adopted pursuant to paragraph (a) of
    36  this subdivision, after a  hearing  conducted  in  accordance  with  the
    37  procedures established by regulations of the department. Such procedures
    38  shall require that notice of the time and place of the hearing, together
    39  with  a statement of charges of violations, shall be served in person or
    40  by certified mail addressed to the facility at least thirty  days  prior
    41  to the date of the hearing. The statement of charges of violations shall
    42  set  forth  the  existence  of the violations, the amount of penalty for
    43  which it may become liable and the steps which must be taken to  rectify
    44  the  violation  and,  where  applicable, a statement that the department
    45  contends that a penalty may be imposed under this  paragraph  regardless
    46  of  rectification.  An  answer to the charges of violations, in writing,
    47  shall be filed with the department, not less than ten days prior to  the
    48  date  of  hearing. The answer shall notify the department of the facili-
    49  ty's position with respect to each of the charges and shall include  all
    50  matters which if not disclosed in the answer would be likely to take the
    51  department  by  surprise. The commissioner, or a member of his staff who
    52  is designated and authorized by him to hold such  hearing,  may  in  his
    53  discretion  allow  the  facility to prove any matter not included in the
    54  answer.
    55    (c) (1) Where the facility satisfactorily demonstrates that it  either
    56  had  rectified  the  violations  within thirty days of receiving written

        A. 196--C                           3
 
     1  notification of the results of the inspection pursuant to  section  four
     2  hundred  sixty-one-a  of this [chapter] article, or had submitted within
     3  thirty days an acceptable plan for rectification and was rectifying  the
     4  violations  in accordance with the steps and within the additional peri-
     5  ods of time as accepted by the department in such plan, no penalty shall
     6  be imposed, except as provided in subparagraph two of this paragraph.
     7    (2) Rectification shall not preclude the assessment of  a  penalty  if
     8  the  department  establishes  at  a hearing that a particular violation,
     9  although corrected[, endangered or resulted in harm to any  resident  as
    10  the result of]:
    11    (i) endangered any resident. Endangerment is defined as:
    12    (A)  the total or substantial failure of the facility's fire detection
    13  or prevention systems, or emergency evacuation procedures prescribed  by
    14  department safety standard regulations;
    15    [(ii)] (B) the retention of any resident who has been evaluated by the
    16  resident's physician as being medically or mentally unsuited for care in
    17  the  facility  or  as  requiring  placement in a hospital or residential
    18  health care facility and for whom the operator is not making  persistent
    19  efforts to secure appropriate placement;
    20    [(iii)]  (C)  the  failure  in systemic practices and procedures which
    21  shall be defined as widespread or chronic, and  material,  noncompliance
    22  with  statutory or regulatory requirements, including but not limited to
    23  the rights of residents under section four hundred sixty-one-d  of  this
    24  article;
    25    [(iv)]  (D) the failure of the operator to take actions as required by
    26  department regulations in the event of a resident's illness or accident;
    27    [(v)] (E) the failure of the operator to provide at all  times  super-
    28  vision of residents by numbers of staff at least equivalent to the night
    29  staffing requirement set forth in department regulations; or
    30    [(vi)]  (F) [unreasonable] threats of retaliation or taking reprisals,
    31  including but not limited  to  [unreasonable]  threats  of  eviction  or
    32  hospitalization,  against  any  resident,  employee  or other person who
    33  makes a complaint concerning the operation of an  adult  care  facility,
    34  participates in the investigation of a complaint or is the subject of an
    35  action identified in a complaint[.
    36    The  department  shall specify in its regulations those regulations to
    37  which this subparagraph two shall apply.
    38    (3) In assessing penalties pursuant to this paragraph, the  department
    39  shall  consider  promptness  of  rectification,  delay occasioned by the
    40  department, and the specific circumstances of the violations as mitigat-
    41  ing factors.
    42    (c)]; or
    43    (ii) resulted in harm to any resident, including but not limited to:
    44    (A) physical harm;
    45    (B) loss or denial of access to  money  or  other  personal  property,
    46  including  but not limited to a violation of section one hundred thirty-
    47  one-o of this chapter; or
    48    (C) being subjected to (I) conduct by an operator, administrator, case
    49  manager, or other employee in a supervisory position that  violates  the
    50  rights  of  a  resident  under  section four hundred sixty-one-d of this
    51  article, or (II) an egregious failure  by  an  operator,  administrator,
    52  case  manager, or other employee in a supervisory position to ensure the
    53  rights of a resident under section  four  hundred  sixty-one-d  of  this
    54  article.
    55    (d)  In assessing penalties pursuant to this paragraph, the department
    56  shall consider promptness of  rectification,  delay  occasioned  by  the

        A. 196--C                           4
 
     1  department, and the specific circumstances of the violations as mitigat-
     2  ing factors.
     3    (e)  Upon  the  request  of  the  department, the attorney general may
     4  commence an action in any court of competent  jurisdiction  against  any
     5  facility  subject  to  the  provisions  of this section, and against any
     6  person or corporation operating such facility, for the recovery  of  any
     7  penalty  assessed by the department in accordance with the provisions of
     8  this subdivision.
     9    [(d)] (f) Any such penalty assessed by the department may be  released
    10  or  compromised  by the department, subject to and consistent with para-
    11  graph (c) of this subdivision, before the matter has  been  referred  to
    12  the  attorney  general,  and  where such matter has been referred to the
    13  attorney general, any such penalty may be released  or  compromised  and
    14  any action commenced to recover the same may be settled and discontinued
    15  by  the attorney general, after considering paragraph (c) of this subdi-
    16  vision and with the consent of the department.
    17    § 3. Paragraphs (a) and (b) of subdivision 9 of section 460-d  of  the
    18  social services law, paragraph (a) as amended by chapter 558 of the laws
    19  of  1999  and paragraph (b) as added by chapter 848 of the laws of 1992,
    20  are amended to read as follows:
    21    (a) The department shall have authority to impose a civil penalty [not
    22  exceeding one thousand dollars per day] consistent with  section  twelve
    23  of  the  public  health law against, and to issue an order requiring the
    24  closing of, after notice and opportunity to be heard, any facility which
    25  does not possess a valid operating certificate issued by the  department
    26  and  is an adult care facility subject to the provisions of this article
    27  and the regulations of the department. A hearing shall be  conducted  in
    28  accordance  with  procedures established by department regulations which
    29  procedures shall require that  notice  of  the  determination  that  the
    30  facility  is  an  adult  care facility and the reasons for such determi-
    31  nation and notice of the time and place of  the  hearing  be  served  in
    32  person  on  the operator, owner or prime lessor, if any, or by certified
    33  mail, return receipt requested, addressed to such person and received at
    34  least twenty days prior to the date of the hearing.  If  such  operator,
    35  owner  or  prime  lessor,  if  any, is not known to the department, then
    36  service may be made by posting a copy thereof  in  a  conspicuous  place
    37  within  the  facility  or  by  sending a copy thereof by certified mail,
    38  return receipt requested, addressed to the facility. A written answer to
    39  the notice of violation may be filed with the department not  less  than
    40  five days prior to the date of the hearing.  Demonstration by the facil-
    41  ity  that  it possessed an operating certificate issued pursuant to this
    42  article, article twenty-eight  of  the  public  health  law  or  article
    43  sixteen,  [twenty-three,] thirty-one or thirty-two of the mental hygiene
    44  law at the time the hearing was commenced shall  constitute  a  complete
    45  defense to any charges made pursuant to this subdivision.
    46    (b)  [The penalty authorized by this section shall begin to run thirty
    47  days after the department provides the  operator,  in  writing,  with  a
    48  summary of the inspection of the facility by which the department deter-
    49  mined  that  he or she is operating an uncertified adult care facility.]
    50  The submission of an  application  by  the  operator  for  an  operating
    51  certificate for the facility shall not act as a bar to the imposition of
    52  a penalty against the operator of an unlicensed adult care facility.
    53    §  4.  Paragraph  (c)  of subdivision 9 of section 460-d of the social
    54  services law is amended by adding a new subparagraph  (iv)  to  read  as
    55  follows:

        A. 196--C                           5
 
     1    (iv)  If  the department of health determines, based on a complaint or
     2  other facts known to the department, that there  is  reason  to  believe
     3  that  an individual or entity is operating an adult home, enriched hous-
     4  ing program, or residence for adults which  does  not  possess  a  valid
     5  operating  certificate  issued  by  the department, and that one or more
     6  conditions or activities at such facility constitute or  are  likely  to
     7  give  rise  to  an  immediate danger to the health of the residents, and
     8  awaiting a court order pursuant to subparagraph (iii) of this  paragraph
     9  would  be  seriously  detrimental  to  the health of such residents, the
    10  department of health may, notwithstanding an objection by the  operator,
    11  administrator  or  other  person in charge, inspect the entire premises,
    12  which shall include access to all dwellings on the said  property  which
    13  house tenants/occupants as well as access to such tenants/occupants, for
    14  the  purpose  of ascertaining whether such danger exists or is likely to
    15  arise on an immediate basis. The department of health  may  request  the
    16  assistance  of  local  law enforcement for purposes of carrying out such
    17  inspection and may take any appropriate action  if  it  determines  that
    18  such  danger  exists  or is likely to arise, including issuing a written
    19  notice directing the operator, administrator or other person  in  charge
    20  of such facility to cease or correct the condition or activity at issue.
    21  As  promptly  as  possible  thereafter,  within  a  period not to exceed
    22  fifteen days, the commissioner shall provide the operator an opportunity
    23  to be heard and to present any proof that  such  condition  or  activity
    24  does  not  constitute  a  danger  to the health of the residents of such
    25  facility. The attorney  general,  upon  request  of  the  department  of
    26  health,  shall be authorized to apply to the supreme court in the county
    27  in which the facility is located for an order for any appropriate  addi-
    28  tional relief.
    29    §  5.  Subdivision  11 of section 460-d of the social services law, as
    30  amended by section 154 of subpart B of part C of chapter 62 of the  laws
    31  of 2011, is amended to read as follows:
    32    11.  On or before issuance by the department to an adult care facility
    33  operator of official written notice of: the proposed revocation, suspen-
    34  sion or denial of the operator's operating certificate;  the  limitation
    35  of  the  operating certificate with respect to new admissions; the issu-
    36  ance of a department order or commissioner's order; the seeking of equi-
    37  table relief pursuant to this  section;  the  [proposed]  assessment  of
    38  civil  penalties  for  violations of the provisions of [subparagraph two
    39  of] paragraph [(b)] (c) of subdivision seven of this section  or  place-
    40  ment  on the "do not refer list" pursuant to subdivision fifteen of this
    41  section, written notice also shall be given to the appropriate office of
    42  the department of mental hygiene, department of corrections and communi-
    43  ty supervision and local social services districts, and provided further
    44  that the department of health shall notify hospitals, residential health
    45  care facilities and adult care facilities in the locality in which  such
    46  facility is located that such notice has been issued. Upon resolution of
    47  such  enforcement action the department shall within ten days notify the
    48  appropriate office of the department of mental  hygiene,  department  of
    49  corrections  and  community supervision, local social services districts
    50  [and], hospitals, residential health  care  facilities  and  adult  care
    51  facilities.
    52    §  6.  Subdivision  12 of section 460-d of the social services law, as
    53  amended by section 42 of part B of chapter 58 of the laws  of  2004,  is
    54  amended to read as follows:
    55    12. [Social] Hospitals, residential health care facilities, adult care
    56  facilities,  social  services districts and other local government enti-

        A. 196--C                           6
 
     1  ties established pursuant to  this  chapter  shall  be  prohibited  from
     2  making  referrals  for  admissions  to  adult  care facilities that have
     3  received official written notice  regarding:  the  proposed  revocation,
     4  suspension  or denial of the operator's operating certificate; the limi-
     5  tation of the operating certificate with respect to new admissions;  the
     6  issuance  of  department  order or commissioner's orders; the seeking of
     7  equitable relief pursuant to this section[; the proposed  assessment  of
     8  civil  penalties for violations of the provisions of subparagraph two of
     9  paragraph (b) of subdivision seven of this section]; or  the  facility's
    10  placement  on the "do not refer list" pursuant to subdivision fifteen of
    11  this section.
    12    § 7. Section 460-d of the social services law is amended by  adding  a
    13  new subdivision 18 to read as follows:
    14    18. When the department of health issues official written notice to an
    15  operator  of  a  proposed action specified in subdivision eleven of this
    16  section, and the department determines that there is a  condition  which
    17  constitutes  an  imminent danger to the health, safety or welfare of any
    18  resident, the department may prohibit that operator from  admitting  any
    19  new  resident to the facility until the department determines that there
    20  is no longer an imminent danger to the health, safety or welfare of  any
    21  resident.
    22    §  8.  Section 461-c of the social services law is amended by adding a
    23  new subdivision 10 to read as follows:
    24    10. The operator of an adult home or an enriched housing program shall
    25  provide to prospective residents who inquire about admission, and  shall
    26  post   on   its   website,   a   copy   of   the   facility's   approved
    27  admission/residency agreement.
    28    § 9. The closing paragraph of subdivision 3 of section  461-d  of  the
    29  social  services  law,  as  added by chapter 601 of the laws of 1981, is
    30  amended to read as follows:
    31    Waiver of any provision [contained within] of this  subdivision  by  a
    32  resident  of an adult care facility or by the resident's legal represen-
    33  tative or resident representative, with respect  to  a  resident  of  an
    34  adult  home,  residence for adults or enriched housing program, shall be
    35  void.
    36    § 10. Section 461-e of the social services law is amended by adding  a
    37  new subdivision 3-a to read as follows:
    38    3-a. Every adult home and enriched housing program shall:
    39    (a)  Post in a prominent position in the facility so as to be accessi-
    40  ble to all residents and to the general public:
    41    (i) a summary of any report of inspection based on a complaint  issued
    42  by  the  department  of  health to the facility within the previous year
    43  which resulted in the payment of a fine or penalty by the facility; and
    44    (ii) notice of residents' right to review reports under paragraph  (b)
    45  of this subdivision.
    46    (b) Provide to any resident and each applicant for admission an oppor-
    47  tunity to review any report of inspection based on a complaint issued by
    48  the department of health to the facility within the previous year.
    49    (c)  Provide  to  the  resident  council  a  summary  of any report of
    50  inspection based on a complaint issued by the department of health with-
    51  in fourteen days  of receipt by the facility.
    52    § 11. Paragraphs (a), (b) and (c) of subdivision 2 of section 461-a of
    53  the social services law, paragraph (a) as amended by chapter 735 of  the
    54  laws  of  1994,  paragraph  (b) as amended by chapter 601 of the laws of
    55  1981 and paragraph (c) as amended by chapter 769 of the  laws  of  2021,
    56  are amended to read as follows:

        A. 196--C                           7
 
     1    (a) With respect to adult care facilities the department shall conduct
     2  a  minimum of one unannounced inspection of each such facility to deter-
     3  mine the  adequacy of care being rendered, pursuant to the following:
     4    (1) Such facilities [receiving the department's highest rating] deter-
     5  mined  by  the  department to be in compliance or substantial compliance
     6  with applicable statutes and regulations, based on the  facility's  most
     7  recent  inspection,  shall  be  inspected  at  least once every eighteen
     8  months on an unannounced basis.
     9    (2) All other such facilities shall be  inspected  on  an  unannounced
    10  basis  no  less  than  annually.   The commissioner may provide for more
    11  frequent inspections of any such facilities. Such inspection  shall  not
    12  be  required with respect to any facility for which the commissioner has
    13  delegated responsibility for inspection  and  supervision  to  a  social
    14  services  official  pursuant  to  section  four  hundred sixty-c of this
    15  [chapter] article.  Any employee of the department or a social  services
    16  district  who  gives  or causes to be given advance notice of such unan-
    17  nounced inspections to any unauthorized persons shall,  in  addition  to
    18  any other penalty provided by law, be suspended by the department or the
    19  social  services  district from all duties without pay for at least five
    20  days or for such greater period of time  as  the  department  or  social
    21  services district shall determine.  Any such suspension shall be made by
    22  the  department or social services district in accordance with all other
    23  applicable provisions of law.
    24    (b) [The department or a social services district, where  appropriate,
    25  shall  each  year conduct a minimum of one full inspection of each adult
    26  care facility. Such inspection] An inspection of an adult care  facility
    27  under  this section shall include, but shall not be limited to, examina-
    28  tion of the medical, dietary and social services records of the facility
    29  as well as the minimum standards of construction, life safety standards,
    30  quality and adequacy of care, rights  of  residents,  payments  and  all
    31  other  areas  of  operation.  The  purpose of any inspection shall be to
    32  determine compliance with requirements of applicable provisions  of  law
    33  and regulations of the department.
    34    (c)  (i)  An  inspection report shall be made of each inspection which
    35  shall clearly identify and indicate in detail each  area  of  operation,
    36  including, but not limited to, the premises, equipment, personnel, resi-
    37  dent care and services, and whether [each] any such area of operation or
    38  any  of  its component parts is [or is] not in compliance with the regu-
    39  lations of the department and all other applicable requirements. It also
    40  shall identify those areas of operation or any of  its  component  parts
    41  found not in compliance as a result of failure in systemic practices and
    42  procedures.  The  operator  shall  be  notified  of  the  results of the
    43  inspection in a manner to be determined by regulations of the department
    44  and shall submit a written plan of correction to the  department  within
    45  thirty  calendar  days  from the date the inspection report is received.
    46  The department shall notify the operator of  the  acceptability  of  the
    47  plan  of  correction  within  thirty  calendar  days of the department's
    48  receipt of such plan.  Such notification shall contain directions as may
    49  be appropriate as to the manner and time in which compliance with appli-
    50  cable requirements of law or regulations  of  the  department  shall  be
    51  effected.
    52    (ii)  The department shall also require the operator of an adult home,
    53  enriched housing program or residence for adults to develop,  biannually
    54  update  and  implement  plans  for quality assurance activities for each
    55  area of operation.   Quality assurance activities include  but  are  not
    56  limited to, development and maintenance of performance standards includ-

        A. 196--C                           8
 
     1  ing infection control, measurement of adherence to such standards and to
     2  applicable  state  and  local  laws  and  regulations, identification of
     3  performance failures, design, and implementation of  corrective  action.
     4  Each  plan  must  also  include  the  creation  of a quality improvement
     5  committee that is charged with meeting periodically, at least once every
     6  six months, to review summary findings from monitoring implementation of
     7  the facility's plan, evaluating the effectiveness of  corrective  action
     8  policies,  and  identifying  trends  and  improvement  activities. While
     9  reviewing  facility  performance,  the  committee  shall   not   examine
    10  personally identifiable resident incidents. Such committee shall include
    11  the  administrator  or  operator  of  the facility, the resident council
    12  president or other resident  representative,  and  representatives  from
    13  frontline employees from each area of operation.
    14    § 12.  Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of
    15  section  29.15  of  the mental hygiene law, as amended by chapter 168 of
    16  the laws of 2010, are amended to read as follows:
    17    (I) A patient about to be discharged or conditionally released from  a
    18  department  facility  licensed or operated by the office for people with
    19  developmental disabilities or from an  inpatient  facility  operated  or
    20  licensed  by  the  office  of [alcoholism and substance abuse] addiction
    21  services and supports or the office of mental health to an  adult  home,
    22  enriched  housing program or residence for adults, as defined in section
    23  two of the social services law, shall be referred only to such  home  or
    24  residence that is consistent with that patient's needs and that operates
    25  pursuant  to  section  four  hundred  sixty  of the social services law,
    26  provided further that: (A) for a department facility licensed  or  oper-
    27  ated  by the office for people with developmental disabilities or for an
    28  inpatient facility operated by the office of [alcoholism  and  substance
    29  abuse]  addiction  services and supports or the office of mental health,
    30  the facility director retains authority to determine whether  the  home,
    31  program  or  residence  is  consistent with that patient's needs and (B)
    32  such referral shall be made to the patient's home county whenever possi-
    33  ble or appropriate.
    34    (II) No patient about to be discharged or conditionally released  from
    35  a department facility licensed or operated by the office for people with
    36  developmental  disabilities  or  from  an inpatient facility operated or
    37  licensed by the office of [alcoholism  and  substance  abuse]  addiction
    38  services  and  supports or the office of mental health shall be referred
    39  to any adult home, enriched housing program or residence for adults,  as
    40  defined in section two of the social services law, which has received an
    41  official  written  notice  from  the  department  of  health of: (A) the
    42  proposed revocation, suspension or denial of its operating  certificate;
    43  (B)  the  limitation  of  its  operating certificate with respect to new
    44  admissions; (C) the issuance of a department of health order or  commis-
    45  sioner  of health's order or the seeking of equitable relief pursuant to
    46  section four hundred  sixty-d  of  the  social  services  law;  (D)  the
    47  proposed  assessment of civil penalties for violations of the provisions
    48  of [subparagraph two of] paragraph [(b)] (c)  of  subdivision  seven  of
    49  section four hundred sixty-d of the social services law; or placement on
    50  the  "do not refer list" pursuant to subdivision fifteen of section four
    51  hundred sixty-d of the social services law. Referrals  may  resume  when
    52  such enforcement actions are resolved.
    53    § 13. Severability clause. If any provision of this act, or any appli-
    54  cation  of  any  provision  of  this  act,  is held to be invalid, or to
    55  violate or be inconsistent with any  federal  law  or  regulation,  that
    56  shall not affect the validity or effectiveness of any other provision of

        A. 196--C                           9
 
     1  this  act,  which can be given effect without that provision or applica-
     2  tion; and to that end, the provisions and applications of this  act  are
     3  severable.
     4    §  14.  This act shall take effect on the ninetieth day after it shall
     5  have become a law.
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