New York State Assembly

 
•  Summary 
 
•  Actions 
 
•  Committee Votes 
 
•  Floor Votes 
 
•  Memo 
 
•  Text 

S06390 Summary:

S06390 Actions:

S06390 Committee Votes:

S06390 Floor Votes:

S06390 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6390--A
            Cal. No. 21
 
                    IN SENATE
 
                                     January 8, 2016
                                       ___________
 
        Introduced  by  Sen.  MURPHY -- read twice and ordered printed, and when
          printed to be committed to the Committee on  Rules  --  ordered  to  a
          third  reading,  amended and ordered reprinted, retaining its place in
          the order of third reading
 
        AN ACT to amend the social services law, in relation to licensed  opera-
          tors  of  adult care facilities and their affiliates; and to amend the
          public health law, in  relation  to  licensed  operators  of  assisted
          living facilities and their affiliates
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Paragraph (b) of subdivision 2  of  section  461-b  of  the
     2  social  services law, as amended by a chapter of the laws of 2015 amend-
     3  ing the social services law  and  the  public  health  law  relating  to
     4  licensed  operators  of  certain  facilities  and  their  affiliates  as
     5  proposed in legislative bills numbers S.5540-A and A.7681-A, is  amended
     6  and a new paragraph (b-1) is added to read as follows:
     7    (b)  For existing licensed operators in good standing and their affil-
     8  iates, the department shall develop a streamlined application review and
     9  approval process, in collaboration with representatives of  associations
    10  of  operators,  to  be  available  for use in relation to approval of an
    11  additional facility of the same type.  Notwithstanding any provision  of
    12  law  or  regulation  to the contrary, the streamlined application review
    13  and approval process shall include, but not be limited to,  the  follow-
    14  ing:
    15    (i) a certification process and form for the operator or its affiliate
    16  to  [verify]  attest  that  it will have sufficient financial resources,
    17  revenue and financing to meet  facility  expenses  and  resident  needs,
    18  which  shall satisfy the statutory and regulatory financial component of
    19  the application review and approval process;
    20    (ii) a certification process and form for the operator or  its  affil-
    21  iate  to  [verify]  attest  that its legal, corporate and organizational
    22  documents comply in substance with department requirements, which  shall
    23  satisfy  the statutory and regulatory legal component of the application
    24  review and approval process;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11181-07-6
        S. 6390--A                          2
 
     1    (iii) a certification process and form for the operator or its  affil-
     2  iate  to  [verify]  attest that it is in substantial compliance with all
     3  applicable codes, rules and regulations in any other state in  which  it
     4  operates, and to disclose any enforcement or administrative action taken
     5  against it in any other state;
     6    (iv)  issuance  by the department of a conditional approval to operate
     7  the facility for a specified period of time upon substantial  completion
     8  of  the  character  and  competence,  legal, financial and architectural
     9  components of the application, so long as the operator or its  affiliate
    10  agrees in writing to satisfy all pending conditions prior to the expira-
    11  tion  of  the conditional approval period or a time frame established by
    12  the department;
    13    (v) issuance by the department of a conditional approval to  construct
    14  a facility, at the operator's or its affiliate's own risk, upon substan-
    15  tial completion of the architectural component of the application;
    16    (vi)  elimination of duplicative submission and review of any applica-
    17  tion information which has been previously reviewed and approved by  the
    18  department  or  any  of  its  regional offices within the past two years
    19  through a certification process and form whereby  the  operator  or  its
    20  affiliate  will  [verify]  attest  that  such application information is
    21  duplicative;
    22    (vii) with respect to any programmatic application information  to  be
    23  reviewed  by the regional office, such review shall be conducted on-site
    24  by the regional office during the pre-opening inspection or  first  full
    25  annual  inspection, if the department has previously approved the opera-
    26  tor or its affiliate to operate the same  type  of  program  at  another
    27  facility within the past two years;
    28    (viii) electronic submission of applications; and
    29    (ix)  a  combined application for licensure as an adult care facility,
    30  assisted living residence and/or assisted living program, to the  extent
    31  the department determines such a combined application is feasible.
    32    [For  purposes  of  this  paragraph, "affiliate" shall mean any entity
    33  that is under common ownership and/or control, directly  or  indirectly,
    34  as  an  existing  licensed operator in good standing; provided, however,
    35  the affiliate entity may have: (A) different  percentages  of  ownership
    36  and/or  control among the individuals approved for the licensed operator
    37  in good standing; and/or (B) fewer  individuals  with  ownership  and/or
    38  control than approved for the licensed operator in good standing.]
    39    (b-1)  For  purposes of paragraph (b) of this subdivision, "affiliate"
    40  shall mean an entity, for which a majority of the ownership or  control-
    41  ling interest is the same as the ownership or controlling interest in an
    42  existing  licensed  operator under this section (provided that an affil-
    43  iate may have different percentages of ownership  or  control  or  fewer
    44  natural  persons  with  ownership  or control than an existing operator)
    45  and, further:
    46    (i) for any entity owned, directly or indirectly, by natural persons:
    47    (A) at all times, more than half of  the  ownership  interest  of  the
    48  entity  shall  be  owned, directly or indirectly, by natural persons who
    49  have previously been determined to have undergone a satisfactory  deter-
    50  mination of character, competence and standing in the community;
    51    (B) at all times, any owner with a direct or indirect ownership inter-
    52  est  who  has  not  undergone a satisfactory determination of character,
    53  competence and standing in the community review must possess a less than
    54  ten percent direct or indirect interest in the entity, until a satisfac-
    55  tory determination has been made; and
        S. 6390--A                          3
 
     1    (C) for any natural person proposed to be an owner, directly or  indi-
     2  rectly,  of the entity who is a controlling person, member, director, or
     3  officer of an existing licensed operator under this section, such exist-
     4  ing licensed operator must be in good standing with the department; and
     5    (ii)  for  any  not-for-profit  corporation  or other entity not under
     6  subparagraph (i) of this paragraph:
     7    (A) more than half of the entity's  total  board  members,  directors,
     8  officers  and  controlling  persons  shall  have  previously undergone a
     9  satisfactory determination of character, competence and standing in  the
    10  community; and
    11    (B)  if any natural person proposed to be a board member, director, or
    12  officer of the entity has an ownership interest, directly or indirectly,
    13  or is a board member, director, officer, or controlling  person,  in  an
    14  existing  licensed  operator  under this section, such existing licensed
    15  operator must also be in good standing with the department.
    16    (b-2) For purposes of [this] paragraph (b) of this subdivision,  "good
    17  standing"  shall  mean  the  operator  and  its  affiliates have not (A)
    18  received any official written notice from the department of  a  proposed
    19  revocation,  suspension,  denial  or limitation on the operating certif-
    20  icate of the facility or residence; (B) within the previous three years,
    21  been assessed a civil penalty after  a  hearing  conducted  pursuant  to
    22  subparagraph  one  of paragraph (b) of subdivision seven of section four
    23  hundred sixty-d of this article for a violation that has not been recti-
    24  fied; (C) within the previous year, received any official written notice
    25  from the department of a proposed assessment of a civil  penalty  for  a
    26  violation  described in subparagraph two of paragraph (b) of subdivision
    27  seven of section four hundred sixty-d of this article;  (D)  within  the
    28  previous  three years, been issued an order pursuant to subdivision two,
    29  five, six or eight of section four hundred sixty-d of this article;  (E)
    30  within  the  previous  three  years,  been  placed on, and if placed on,
    31  removed from the department's "do not refer list" pursuant  to  subdivi-
    32  sion fifteen of section four hundred sixty-d of this article.  Provided,
    33  however,  that  in  the  case of an operator or affiliate that is not in
    34  good standing as provided in this paragraph, the department  may  permit
    35  the operator or affiliate to use the streamlined application process, in
    36  its discretion, if it determines that the disqualifying violation was an
    37  isolated  occurrence  that  was  promptly  corrected  by the operator or
    38  affiliate.
    39    § 2. Subdivision 2 of section  4653  of  the  public  health  law,  as
    40  amended  by  a  chapter of the laws of 2015 amending the social services
    41  law and the public health law relating to licensed operators of  certain
    42  facilities  and  their  affiliates,  as  proposed  in  legislative bills
    43  numbers S. 5540-A and A.7681-A, is amended and a new subdivision 2-a  is
    44  added to read as follows:
    45    2.  For  existing licensed operators in good standing and their affil-
    46  iates, the department shall develop a streamlined application review and
    47  approval process, in collaboration with representatives of  associations
    48  of  operators,  to  be  available  for use in relation to approval of an
    49  additional facility of the same type.  Notwithstanding any provision  of
    50  law  or  regulation  to the contrary, the streamlined application review
    51  and approval process shall include, but not be limited to,  the  follow-
    52  ing:
    53    (a) a certification process and form for the operator or its affiliate
    54  to  [verify]  attest  that  it will have sufficient financial resources,
    55  revenue and financing to meet  facility  expenses  and  resident  needs,
        S. 6390--A                          4

     1  which  shall satisfy the statutory and regulatory financial component of
     2  the application review and approval process;
     3    (b) a certification process and form for the operator or its affiliate
     4  to  [verify]  attest  that its legal, corporate and organizational docu-
     5  ments comply in substance  with  department  requirements,  which  shall
     6  satisfy  the statutory and regulatory legal component of the application
     7  review and approval process;
     8    (c) a certification process and form for the operator or its affiliate
     9  to [verify] attest that it is in substantial compliance with all  appli-
    10  cable  codes, rules and regulations in any other state in which it oper-
    11  ates, and to disclose any enforcement  or  administrative  action  taken
    12  against it in any other state;
    13    (d)  issuance  by  the department of a conditional approval to operate
    14  the facility for a specified period of time upon substantial  completion
    15  of  the  character  and  competence,  legal, financial and architectural
    16  components of the application, so long as the operator or its  affiliate
    17  agrees in writing to satisfy all pending conditions prior to the expira-
    18  tion  of  the conditional approval period or a time frame established by
    19  the department;
    20    (e) issuance by the department of a conditional approval to  construct
    21  a facility, at the operator's or its affiliate's own risk, upon substan-
    22  tial completion of the architectural component of the application;
    23    (f)  elimination  of duplicative submission and review of any applica-
    24  tion information which has been previously reviewed and approved by  the
    25  department  or  any  of  its  regional offices within the past two years
    26  through a certification process and form whereby  the  operator  or  its
    27  affiliate  will  [verify]  attest  that  such application information is
    28  duplicative;
    29    (g) with respect to any programmatic  application  information  to  be
    30  reviewed  by the regional office, such review shall be conducted on-site
    31  by the regional office during the pre-opening inspection or  first  full
    32  annual  inspection, if the department has previously approved the opera-
    33  tor or its affiliate to operate the same  type  of  program  at  another
    34  facility within the past two years;
    35    (h) electronic submission of applications; and
    36    (i)  a  combined  application for licensure as an adult care facility,
    37  assisted living residence and/or assisted living program, to the  extent
    38  the department determines such a combined application is feasible.
    39    [For  purposes  of this subdivision, "affiliate" shall mean any entity
    40  that is under common ownership and/or control, directly  or  indirectly,
    41  as  an  existing  licensed operator in good standing; provided, however,
    42  the affiliate entity may have: (A) different  percentages  of  ownership
    43  and/or  control among the individuals approved for the licensed operator
    44  in good standing (provided that all of the individuals have an ownership
    45  interest and/or control as the operator in good  standing);  and/or  (B)
    46  fewer  individuals  with  ownership and/or control than approved for the
    47  licensed operator in good standing.]
    48    2-a. For purposes of subdivision  two  of  this  section,  "affiliate"
    49  shall  mean an entity, for which a majority of the ownership or control-
    50  ling interest is the same as the ownership or controlling interest in an
    51  existing licensed operator under this section (provided that  an  affil-
    52  iate  may  have  different  percentages of ownership or control or fewer
    53  natural persons with ownership or  control  than  an  existing  licensed
    54  operator) and, further:
    55    (a) for any entity owned, directly or indirectly, by natural persons:
        S. 6390--A                          5
 
     1    (i)  at  all  times,  more  than half of the ownership interest of the
     2  entity shall be owned, directly or indirectly, by  natural  persons  who
     3  have  previously been determined to have undergone a satisfactory deter-
     4  mination of character, competence and standing in the community;
     5    (ii)  at  all  times,  any  owner  with a direct or indirect ownership
     6  interest who has not undergone a satisfactory determination  of  charac-
     7  ter, competence and standing in the community review must possess a less
     8  than  ten  percent  direct  or  indirect interest in the entity, until a
     9  satisfactory determination has been made; and
    10    (iii) for any natural person proposed to  be  an  owner,  directly  or
    11  indirectly,  of  the  entity  who is a controlling person, as defined in
    12  section four hundred sixty-one-b of the social services  law,  or  is  a
    13  member, director, or officer of an existing licensed operator under this
    14  section,  such  existing licensed operator must be in good standing with
    15  the department; and
    16    (b) for any not-for-profit corporation or other entity not under para-
    17  graph (a) of this subdivision:
    18    (i) more than half of the entity's  total  board  members,  directors,
    19  officers  and  controlling  persons,  as defined in section four hundred
    20  sixty-one-b of the social services law, shall have previously  undergone
    21  a  satisfactory  determination  of character, competence and standing in
    22  the community; and
    23    (ii) if any natural person proposed to be a   board member,  director,
    24  or  officer  of  the entity has an ownership interest, directly or indi-
    25  rectly, or is a board member, director, officer, or controlling  person,
    26  as  defined  in  section four hundred sixty-one-b of the social services
    27  law, in an existing licensed operator under this section, such  existing
    28  licensed operator must also be in good standing with the department.
    29    2-b.  For  purposes  of  [this] subdivision two of this section, "good
    30  standing" shall mean  the  operator  and  its  affiliate  have  not  (i)
    31  received  any  official written notice from the department of a proposed
    32  revocation, suspension, denial or limitation on  the  operating  certif-
    33  icate  of  the  facility  or  residence;  (ii) within the previous three
    34  years, been assessed a civil penalty after a hearing conducted  pursuant
    35  to  subparagraph  one  of  paragraph (b) of subdivision seven of section
    36  four hundred sixty-d of the social services law for a violation that has
    37  not been rectified; (iii) within the previous year, received  any  offi-
    38  cial  written  notice  from the department of a proposed assessment of a
    39  civil penalty for a violation described in subparagraph two of paragraph
    40  (b) of subdivision seven of section four hundred sixty-d of  the  social
    41  services law; (iv) within the previous three years, been issued an order
    42  pursuant to subdivision two, five, six, or eight of section four hundred
    43  sixty-d of the social services law; (v) within the previous three years,
    44  been  placed on, and if placed on, removed from the department's "do not
    45  refer list" pursuant to subdivision  fifteen  of  section  four  hundred
    46  sixty-d  of the social services law. Provided, however, that in the case
    47  of an operator or affiliate that is not in good standing as provided  in
    48  this  paragraph,  the department may permit the operator or affiliate to
    49  use the streamlined application process, in its discretion, if it deter-
    50  mines that the disqualifying violation was an isolated  occurrence  that
    51  was promptly corrected by the operator or affiliate.
    52    §  3.  This  act  shall  take  effect on the same date and in the same
    53  manner as a chapter of the laws of 2015 amending the social services law
    54  and the public health law relating  to  licensed  operators  of  certain
    55  facilities  and  their  affiliates,  as  proposed  in  Legislative bills
    56  numbers S.5540-A and A.7681-A, takes effect.