A00964 Summary:

BILL NOA00964
 
SAME ASNo same as
 
SPONSORGottfried (MS)
 
COSPNSRDinowitz
 
MLTSPNSRPheffer
 
Amd SS460-d, 461-d & 461-a, Soc Serv L; amd S1, Chap 462 of 1996; amd S29.15, Ment Hyg L
 
Establishes a quality incentive payment program for adult homes.
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A00964 Actions:

BILL NOA00964
 
01/05/2011referred to health
01/04/2012referred to health
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A00964 Floor Votes:

There are no votes for this bill in this legislative session.
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A00964 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           964
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 5, 2011
                                       ___________
 
        Introduced  by  M. of A. GOTTFRIED, DINOWITZ -- Multi-Sponsored by -- M.
          of A. PHEFFER -- read once and referred to the Committee on Health
 
        AN ACT to amend the social services law,  the  mental  hygiene  law  and
          chapter  462  of  the laws of 1996, relating to establishing a quality

          incentive payment program for adult homes, 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. Subdivision 7 of section 460-d of the social  services  law
     2  is amended by adding a new paragraph (e) to read as follows:
     3    (e)  Rectification  shall  not preclude the assessment of a penalty if
     4  the department establishes that a violation, although corrected,  was  a
     5  violation  in  the  same  area  of operation as a violation cited by the
     6  department at the previous facility inspection.
     7    § 2. Paragraph (b) of subdivision 4 of section  460-d  of  the  social
     8  services  law, as amended by chapter 733 of the laws of 1994, is amended
     9  to read as follows:

    10    (b) No operating certificate shall be revoked,  suspended  or  limited
    11  without  a  hearing  held  in  accordance with procedures established by
    12  department regulations, which procedures shall require  that  notice  of
    13  the  time  and place of the hearing, and notice of the charges, shall be
    14  served in person or by certified mail addressed to the facility at least
    15  thirty days prior to the date of the hearing. A written  answer  to  the
    16  charges may be filed with the department not less than ten business days
    17  prior  to  the date of the hearing. An operating certificate may, never-
    18  theless, be suspended or limited without a hearing for a period  not  in
    19  excess  of  sixty  days, upon written notice to the facility following a
    20  finding by the department that the public  health,  or  an  individual's
    21  health,  safety  or  welfare, are in imminent danger; provided, however,

    22  that if the department makes reasonable efforts to  commence  a  hearing
    23  within  such  sixty  day  period  and  to complete such hearing within a
    24  reasonable period of time, the hearing officer may authorize the depart-
    25  ment to extend the period of suspension or limitation for an appropriate
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02616-01-1

        A. 964                              2
 
     1  period of time, but in no event beyond the  date  when  the  hearing  is
     2  completed and available administrative appeals are exhausted.
     3    §  3.  Subdivision  11 of section 460-d of the social services law, as

     4  amended by section 42 of part B of chapter 58 of the laws  of  2004,  is
     5  amended to read as follows:
     6    11.  On or before issuance by the department to an adult care facility
     7  operator of official written notice of: the proposed revocation, suspen-
     8  sion or denial of the operator's operating certificate;  the  limitation
     9  of  the  operating certificate with respect to new admissions; the issu-
    10  ance of a department order or commissioner's order; the seeking of equi-
    11  table relief pursuant to this section; the proposed assessment of  civil
    12  penalties  for violations of the provisions of subparagraph two of para-
    13  graph (b) of subdivision seven of this section or placement on  the  "do
    14  not refer list" pursuant to subdivision fifteen of this section, written
    15  notice  also  shall be given to the appropriate office of the department

    16  of mental hygiene, department of correctional services,  state  division
    17  of parole and local social services districts, and provided further that
    18  the department of health shall notify hospitals, residential health care
    19  facilities  and  adult  care  facilities  in  the locality in which such
    20  facility is located that such notice has been issued. Upon resolution of
    21  such enforcement action the  department  shall  notify  the  appropriate
    22  office  of  the department of mental hygiene, department of correctional
    23  services, state division of  parole,  local  social  services  districts
    24  [and],  hospitals,  residential  health  care  facilities and adult care
    25  facilities.
    26    § 4. Subdivision 12 of section 460-d of the social  services  law,  as
    27  amended  by  section  42 of part B of chapter 58 of the laws of 2004, is

    28  amended to read as follows:
    29    12. [Social] Hospitals, residential health care facilities, adult care
    30  facilities, social services districts and other local  government  enti-
    31  ties  established  pursuant  to  this  chapter  shall be prohibited from
    32  making referrals for admissions  to  adult  care  facilities  that  have
    33  received  official  written  notice  regarding: the proposed revocation,
    34  suspension or denial of the operator's operating certificate; the  limi-
    35  tation  of the operating certificate with respect to new admissions; the
    36  issuance of department order or commissioner's orders;  the  seeking  of
    37  equitable  relief  pursuant  to this section; the proposed assessment of
    38  civil penalties for violations of the provisions of subparagraph two  of
    39  paragraph  (b)  of  subdivision seven of this section; or the facility's

    40  placement on the "do not refer list" pursuant to subdivision fifteen  of
    41  this section.
    42    §  5.  Section 460-d of the social services law is amended by adding a
    43  new subdivision 17 to read as follows:
    44    17. When the department of health issues official written notice to an
    45  operator of a proposed action specified in subdivision  eleven  of  this
    46  section,  and  the department determines that there is a condition which
    47  constitutes an imminent danger to the health, safety or welfare  of  any
    48  resident,  the  department may prohibit that operator from admitting any
    49  new resident to the facility until the department determines that  there
    50  is  no longer an imminent danger to the health, safety or welfare of any
    51  resident.

    52    § 6. The closing paragraph of subdivision 3 of section  461-d  of  the
    53  social  services  law,  as  added by chapter 601 of the laws of 1981, is
    54  amended to read as follows:
    55    Waiver of any provision [contained within] of this  subdivision  by  a
    56  resident  of an adult care facility or by the resident's legal represen-

        A. 964                              3
 
     1  tative or resident representative, with respect  to  a  resident  of  an
     2  adult  home,  residence for adults or enriched housing program, shall be
     3  void.
     4    §  7.  Paragraphs (a) and (b) of subdivision 2 of section 461-a of the
     5  social services law, paragraph (a) as amended by chapter 735 of the laws
     6  of 1994 and paragraph (b) as amended by chapter 601 of the laws of 1981,
     7  are amended to read as follows:

     8    (a) With respect to adult care facilities the department shall conduct
     9  a minimum of one unannounced inspection of each such facility to  deter-
    10  mine the  adequacy of care being rendered, pursuant to the following:
    11    (1) Such facilities [receiving the department's highest rating] deter-
    12  mined  by  the  department to be in compliance or substantial compliance
    13  with applicable statutes and regulations, based on the  facility's  most
    14  recent  inspection,  shall  be  inspected  at  least once every eighteen
    15  months on an unannounced basis.
    16    (2) All other such facilities shall be  inspected  on  an  unannounced
    17  basis  no  less  than  annually.   The commissioner may provide for more
    18  frequent inspections of any such facilities. Such inspection  shall  not
    19  be  required with respect to any facility for which the commissioner has

    20  delegated responsibility for inspection  and  supervision  to  a  social
    21  services  official  pursuant  to  section  four  hundred sixty-c of this
    22  [chapter] article.  Any employee of the department or a social  services
    23  district  who  gives  or causes to be given advance notice of such unan-
    24  nounced inspections to any unauthorized persons shall,  in  addition  to
    25  any other penalty provided by law, be suspended by the department or the
    26  social  services  district from all duties without pay for at least five
    27  days or for such greater period of time  as  the  department  or  social
    28  services district shall determine.  Any such suspension shall be made by
    29  the  department or social services district in accordance with all other
    30  applicable provisions of law.
    31    (b) [The department or a social services district, where  appropriate,

    32  shall  each  year conduct a minimum of one full inspection of each adult
    33  care facility. Such inspection] An inspection of an adult care  facility
    34  under  this section shall include, but shall not be limited to, examina-
    35  tion of the medical, dietary and social services records of the facility
    36  as well as the minimum standards of construction, life safety standards,
    37  quality and adequacy of care, rights  of  residents,  payments  and  all
    38  other  areas  of  operation.  The  purpose of any inspection shall be to
    39  determine compliance with requirements of applicable provisions  of  law
    40  and regulations of the department.
    41    §  8.  Paragraph  (c)  of subdivision 2 of section 461-a of the social
    42  services law, as amended by chapter 735 of the laws of 1994, is  amended
    43  to read as follows:

    44    (c)  (i)  An  inspection report shall be made of each inspection which
    45  shall clearly identify and indicate in detail each  area  of  operation,
    46  including, but not limited to, the premises, equipment, personnel, resi-
    47  dent care and services, and whether [each] any such area of operation or
    48  any  of  its component parts is [or is] not in compliance with the regu-
    49  lations of the department and all other applicable requirements. It also
    50  shall identify those areas of operation or any of  its  component  parts
    51  found not in compliance as a result of failure in systemic practices and
    52  procedures.  The  operator  shall  be  notified  of  the  results of the
    53  inspection in a manner to be determined by regulations of the department
    54  and shall submit a written plan of correction to the  department  within

    55  thirty  calendar  days  from the date the inspection report is received.
    56  The department shall notify the operator of  the  acceptability  of  the

        A. 964                              4
 
     1  plan  of  correction  within  thirty  calendar  days of the department's
     2  receipt of such plan.  Such notification [shall] may contain  directions
     3  as may be appropriate as to the manner and time in which compliance with
     4  applicable requirements of law or regulations of the department shall be
     5  effected.    (ii)  The  department shall also require the operator of an
     6  adult home, enriched housing program or residence for adults to develop,
     7  biannually update and implement plans for quality  assurance  activities

     8  for each area of operation. Quality assurance activities include but are
     9  not  limited  to,  development and maintenance of performance standards,
    10  measurement of adherence to such standards and to applicable  state  and
    11  local  laws  and  regulations,  identification  of performance failures,
    12  design, and implementation of corrective action.
    13    § 9. Section 1 of chapter 462 of the laws of 1996, relating to  estab-
    14  lishing  a quality incentive payment program for adult homes, as amended
    15  by section 36 of part B of chapter 58 of the laws of 2004, is amended to
    16  read as follows:
    17    Section 1. Quality  incentive  payment  program.  Subject  to  amounts
    18  appropriated  for  the quality incentive payment program, the department
    19  of health may make a payment to each operator of an  adult  home,  resi-
    20  dence  for adults or enriched housing program that is in compliance with

    21  applicable statutes and regulations based on the facility's most  recent
    22  inspection.  Such payment shall be based on the number of SSI recipients
    23  and  recipients  of  safety  net assistance residing in such facilities.
    24  Payment may also be made to  a  receiver  of  an  existing  adult  home,
    25  enriched housing program or residence for adults. Provided, however, the
    26  department  of health may deny payment to any facility that has received
    27  official written notice from the department  of  health  of  a  proposed
    28  assessment of civil penalties for a violation of subparagraph 2 of para-
    29  graph  (b) of subdivision 7 of section 460-d of the social services law,
    30  or, after a hearing conducted pursuant to subparagraph  1  of  paragraph
    31  (b)  of  subdivision  7 of section 460-d of the social services law, has

    32  been adjudicated to not be providing care in compliance with  applicable
    33  statutes  and  regulations.  The  department  of health shall promulgate
    34  regulations to implement the provisions of this section.
    35    No payment shall be made to an operator  that  has  received  official
    36  written notice from the department of a proposed revocation, suspension,
    37  limitation  or  denial  of  the  operator's  operating  certificate[; or
    38  proposed assessment of civil penalties for a violation of subparagraph 2
    39  of paragraph (b) of  subdivision  7  of  section  460-d  of  the  social
    40  services  law];  issuance  of  a department order under subdivision 2 of
    41  section 460-d of the social services  law;  the  granting  of  equitable
    42  relief  under subdivision 5 of section 460-d of the social services law;

    43  or the issuance of a commissioner's order under subdivision 8 of section
    44  460-d of the social services law; or the issuance by a court  of  compe-
    45  tent  jurisdiction  of  an  order  or approval of a settlement agreement
    46  which affirms that the rights afforded to residents of adult care facil-
    47  ities as provided for by section 461-d of the social services  law  have
    48  been  violated.  Provided further that prior to receiving quality incen-
    49  tive payment program funds, an operator shall  consult  with  the  resi-
    50  dents' council for such facility and, following such council's approval,
    51  shall  submit  an  expenditure  plan  to the department. Such plan shall
    52  detail how quality incentive payment  program  funds  will  be  used  to
    53  improve  the physical environment of the facility or the quality of care
    54  and services rendered to residents and may include but not be limited to

    55  staff training,  air  conditioning  in  residents'  areas,  furnishings,
    56  equipment,  maintenance  or  repairs  to  the  facility  or expenditures

        A. 964                              5
 
     1  related to corrective action as required by the most  recent  inspection
     2  report. Such expenditure plan shall be accompanied by an operator attes-
     3  tation.  It shall be an affirmative duty of an operator of an adult care
     4  facility  to  notify  the department within three working days after the
     5  issuance of a court order or court approved settlement  agreement  which
     6  has  found  that  the  rights  of a resident, as provided for by section
     7  461-d of the social services law or the rules  and  regulations  of  the
     8  department have been violated.
     9    §  10. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of

    10  section 29.15 of the mental hygiene law, as amended by  chapter  168  of
    11  the laws of 2010, are amended to read as follows:
    12    (I)  A patient about to be discharged or conditionally released from a
    13  department facility licensed or operated by the office for  people  with
    14  developmental  disabilities  or  from  an inpatient facility operated or
    15  licensed by the office of alcoholism and substance abuse services or the
    16  office of mental health to an adult home, enriched  housing  program  or
    17  residence  for  adults, as defined in section two of the social services
    18  law, shall be referred only to such home or residence that is consistent
    19  with that patient's needs and that operates  pursuant  to  section  four
    20  hundred sixty of the social services law, provided further that: (A) for
    21  a department facility licensed or operated by the office for people with

    22  developmental  disabilities or for an inpatient facility operated by the
    23  office of alcoholism and substance  abuse  services  or  the  office  of
    24  mental  health,  the  facility  director  retains authority to determine
    25  whether the home, program or residence is consistent with that patient's
    26  needs and (B) such referral shall be made to the patient's  home  county
    27  whenever possible or appropriate.
    28    (II)  No patient about to be discharged or conditionally released from
    29  a department facility licensed or operated by the office for people with
    30  developmental disabilities or from an  inpatient  facility  operated  or
    31  licensed by the office of alcoholism and substance abuse services or the
    32  office  of  mental  health shall be referred to any adult home, enriched
    33  housing program or residence for adults, as defined in  section  two  of

    34  the  social  services law, which has received an official written notice
    35  from the department of health of: (A) the proposed  revocation,  suspen-
    36  sion  or  denial of its operating certificate; (B) the limitation of its
    37  operating certificate with respect to new admissions; (C)  the  issuance
    38  of a department of health order or commissioner of health's order or the
    39  seeking  of equitable relief pursuant to section four hundred sixty-d of
    40  the social services law; (D) the proposed assessment of civil  penalties
    41  for violations of the provisions of subparagraph two of paragraph (b) of
    42  subdivision seven of section four hundred sixty-d of the social services
    43  law;  or  placement  on  the "do not refer list" pursuant to subdivision
    44  fifteen of section four hundred sixty-d  of  the  social  services  law.
    45  Referrals may resume when such enforcement actions are resolved.

    46    §  11.  This act shall take effect on the ninetieth day after it shall
    47  have become a law, provided, however, that the  commissioner  of  health
    48  may adopt, amend, suspend or repeal any regulations or take other action
    49  necessary  to  enforce  or implement the law prior to and in preparation
    50  for the taking effect of the  law;  provided,  however,  such  adoption,
    51  amendment,  suspension  or  repeal  of  regulations shall not have legal
    52  effect until the law takes effect.
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