NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5167
SPONSOR: Gottfried (MS) TITLE OF BILL: An act to amend the social services law, the mental
hygiene law and chapter 462 of the laws of 1996, relating to establish-
ing a quality incentive payment program for adult homes, in relation to
violations of safety conditions in adult care facilities
PURPOSE OR GENERAL IDEA OF BILL: This bill will improve the health,
safety and quality of life of New York residents living in adult care
facilities.
SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill adds a new
Social Services Law (SSL) § 460-d(7)(e) to authorize the Department of
Health (DOH) to assess a penalty if DOH establishes that a violation
found at an adult care facility, although corrected, was a violation in
the same area of operation as a violation cited at the previous facility
inspection.
Section 2 of the bill amends SSL § 460-d(4)(b) to authorize a hearing
officer to extend a pre-hearing suspension or limitation of an adult
care facility's operating certificate, currently authorized for no more
than 60 days if there is a finding of imminent danger to the public
health or a resident's health, safety or welfare, for an additional
period of time if DOH has made reasonable efforts to commence and
complete a hearing.
Sections 3 and 4 of the bill amend SSL §§ 460-d(11) and (12) to add
adult care facilities and residential health care facilities to the list
of entities that: (1) must be notified when DOH issues notice of the
proposed revocation, suspension or limitation of an adult care facili-
ty's operating certificate or the proposed placement of a facility on
the "Do Not Refer" list, and (2) may not make referrals to the facility
that is the subject of such notice.
Section 5 of the bill adds a new SSL § 460-d(17) to provide that when
DOH issues official written notice of a proposed enforcement action
specified in SSL § 460-d(I 1) and determines there is a condition that
constitutes an imminent danger to the health, safety or welfare of any
resident, DOH may prohibit the operator from admitting any new residents
until DOH is satisfied that the imminent danger no longer exists.
Section 6 of the bill amends SSL § 461-d(3) to provide that the rights
of residents set forth in that subdivision cannot be waived by legal
representatives or resident representatives.
Section 7 of the bill amends SSL § 461-a(2)(a) to eliminate a provision
permitting "facilities receiving the department's highest rating" to
undergo inspections every 18 months, instead of annually, and instead
reserves the 18 month inspection schedule for "facilities determined by
the department to be in compliance with applicable statutes and regu-
lations, based on the facility's most recent inspection."
Section 8 of the bill adds a new SSL § 461 -a(2)(c) to eliminate the
requirement that the report of an inspection of an adult care facility
specify each area or operation which is or is not in compliance with
applicable regulations, and instead requires that such report identify
only areas that are not iii compliance. The bill also authorizes rather
than mandates that the inspection report provide directions as to the
manner and time in which compliance with applicable regulations must be
achieved, and requires the operator to submit a written plan of
correction within 30 calendar days of when the inspection report is
received. DOH will notify the operator as to the acceptability of the
plan 30 days after receipt of such plan. Additionally, the bill adds
enriched housing programs to the facilities required to develop, biannu-
ally update and implement plans for quality assurance activities for
each area of operation.
Section 9 of the bill amends section 1 of Chapter 462 of the Laws of
1996 to provide that the determination of whether to deny quality incen-
tive payments, known as QUIP Rinds, to operators that have received
notice of a proposed penalty for endangerment violations pursuant to SSL
§ 460-d (7)(b)(2) is 'within DOH's discretion.
Section 10 of the bill amends Mental Hygiene Law (MHL) §§ 29.15(i)(2)(I)
and (II) to include enriched housing programs among the facilities to
whom a patient can be referred when discharged from facilities licensed
or operated by the Office of Mental Retardation and Developmental Disa-
bilities (OMRDD), the Office of Alcoholism and Substance Abuse Services
(OASAS) or the Office of Mental Health (OMIT), if the receiving facility
meets applicable requirements.
JUSTIFICATION: Adult homes, enriched housing programs and residences
for adults - collectively referred to as adult care facilities - are
important models of care that serve as the homes of thousands of New
York State residents. This bill builds on DOH's commitment to improve
and enhance the health, safety and quality of life of New Yorkers living
in such facilities by strengthening the enforcement of applicable stand-
ards and improving inspection reports.
To protect life, health and safety, the bill prohibits any new admis-
sions to an adult care facility facing enforcement action if DOH finds
that a condition exists which is dangerous to the health, safety or
welfare of any resident. In addition, although various state and county
agencies and facilities, as well as local hospitals, are notified when
an adult care facility is placed on the "Do Not Refer" list and are
barred from making referrals to such facilities, other adult care facil-
ities and residential health care facilities are not subject to such
notification and prohibition. This bill corrects that omission.
The bill also seeks to improve enforcement of the standards governing
adult care facilities. Currently, an operator can avoid fines for most
violations by rectifying the violations within 30 days of receiving a
notice of such violations. This enables an operator to repeatedly
violate or permit the violation of the same regulatory provision without
penalty, as long as the operator temporarily corrects the violation
after an inspection. Prohibiting adult care facilities from asserting
rectification as a complete defense for recurring violations is consist-
ent with other long-term care models regulated by DOH, including nursing
homes. Accordingly, the bill provides that rectification will not
preclude the assessment of a penalty in the event of a violation that
was cited in the same area of operation at a previous inspection.
Several court decisions have interpreted SSL § 461-a(2)(3) as requiring
that DOH inspection reports indicate areas of operation not only where
an adult care facility is not in compliance with statutory and regulato-
ry standards, but also each and every area that is in compliance. The
section .has also been interpreted to require that DOH specifically
direct how a violation is to be rectified, even where the manner of
appropriate rectification is obvious. These readings of the law result
in the expenditure of DOH resources that would be better spent on over-
sight of other patient care issues. Accordingly, the bill revises the
section to eliminate these problems. Moreover, the bill requires
enriched housing programs to develop, update and implement quality
assurance plans, which is currently a requirement only for adult homes
and. residences for adults.
The bill also permits the pre-hearing suspension or limitation of an
operating certificate to be extended by a hearing officer beyond the 60
days currently set forth in law, as long as DOH has made reasonable
efforts to commence and complete a hearing. This gives the hearing offi-
cer the discretion to determine whether an operator who has allegedly
created or permitted an imminent danger to residents should be permitted
to resume operation of the facility before the completion of the hearing
and any available administrative appeals.
The bill also requires Chapter 462 of the Laws of 1996 to provide that
DOH has the discretion to decide whether an adult home, residence for
adults or enriched house program should receive QUIP funds if there is a
pending proceeding to assess penalties for endangerment violations.
Because QUIP funds are intended to be used for the benefit of residents
rather than as a prize for the benefit of the operator, DOH believes
that the denial of such funds should not be automatically imposed in
cases of endangerment. Instead, as is the case with pending proceedings
for non-rectifiable violations, DOH should be given an opportunity to
review the circumstances surrounding the endangerment violation in
determining whether QUIP funds should be awarded.
PRIOR LEGISLATIVE HISTORY: 2009-10: A.9552 - referred to Health
committee.
2011-2012: A.964 - referred to Health committee
FISCAL IMPLICATIONS: This bill is not expected to have a fiscal
impact on the State.
EFFECTIVE DATE:
Ninetieth day after it shall have become a law.
