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S06767 Summary:

S06767 Actions:

S06767 Committee Votes:

S06767 Floor Votes:

S06767 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6767
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                      May 14, 2021
                                       ___________
 
        Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
 
        AN ACT to amend the public health law, in relation to nursing homes  and
          residential health care facilities; and to amend a chapter of the laws
          of  2021  amending  the public health law relating to requirements for
          residential health care facilities and nursing homes, as  proposed  in
          legislative bills numbers S. 4893-A and A.  5684-A, in relation to the
          effectiveness thereof
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivisions 2-b and 3-b of section 2801-a  of  the  public
     2  health  law,  as  added  by  a chapter of the laws of 2021, amending the
     3  public health law relating to requirements for residential  health  care
     4  facilities  and  nursing homes, as proposed in legislative bills numbers
     5  S.  4893-A and A. 5684-A, are amended to read as follows:
     6    2-b. (a) This subdivision applies with respect to an application under
     7  this section relating to the incorporation or establishment of any nurs-
     8  ing home, in addition to subdivision two of this section.
     9    (b) The [council] department shall provide notice, in writing or elec-
    10  tronically, of [the] an application [to the public on  the  department's
    11  website] for establishment to the state office of long-term care ombuds-
    12  man,  within  thirty  days of [receipt of it and provide it to the state
    13  office of the long-term care ombudsman and the  regional  office  having
    14  geographical jurisdiction of the area where the nursing home is to be or
    15  is  located. In the case of an application relating to an existing nurs-
    16  ing home, the notice shall also be provided in writing or electronically
    17  to residents of the nursing home  and  their  representatives,  and  the
    18  staff  of the nursing home and their representatives] acknowledgement of
    19  the application by the department. Thereafter, the state office  of  the
    20  long-term  care ombudsman shall submit its recommendation to the depart-
    21  ment and to the public health and health planning council for  consider-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07696-06-1
        S. 6767                             2
 
     1  ation  about  such  application. At the time members of such council are
     2  notified that an application is scheduled for consideration by a commit-
     3  tee designated by the public health and  health  planning  council,  the
     4  department  shall  also  notify  the  state office of the long-term care
     5  ombudsman, in writing or electronically.
     6    (c) [The council shall provide  a  mechanism  for  submitting  written
     7  comments  electronically  on the application to the council; and provide
     8  at least ninety days for the comment period. The terms  of  the  written
     9  comment  process  shall be included in the notice under paragraph (a) of
    10  this subdivision] In the case of an application for establishment relat-
    11  ing to an existing nursing home, the established operator and  applicant
    12  shall  provide  notice of the application, in writing or electronically,
    13  to residents of the nursing home and their representatives and the staff
    14  of the nursing home, including their union representatives, within thir-
    15  ty days of acknowledgment of the  application  by  the  department.  The
    16  established  operator  and applicant shall also immediately notify resi-
    17  dents of the nursing home and their representatives and the staff of the
    18  nursing home, including their union  representatives,  when  the  estab-
    19  lished operator and applicant is notified that its application is sched-
    20  uled  for  consideration  by a committee designated by the public health
    21  and health planning council.
    22    [(d) The council shall forward a copy of the application, and accompa-
    23  nying documents, to the state office of the long-term care ombudsman and
    24  the regional office having geographical jurisdiction of the  area  where
    25  the nursing home is or is to be located within thirty days of receipt of
    26  the  application.  The council shall not act upon such application until
    27  after the state office of the long-term care ombudsman, regional  office
    28  and  the  parties entitled to notice have had a reasonable time, but not
    29  less than ninety days, to submit  their  recommendations.  At  the  time
    30  members of the council are notified that an application is scheduled for
    31  consideration,  the  applicant,  and  the parties entitled to the notice
    32  under paragraph (a) of this subdivision shall be so notified in  writing
    33  or electronically. The council shall afford the applicant an opportunity
    34  to present information in person concerning the application to a commit-
    35  tee  designated  by  the  council. The council shall not take any action
    36  contrary to the advice of the state office of the long-term care ombuds-
    37  man or the regional office until it affords the state or regional office
    38  an opportunity to request a public hearing and,  if  so  requested,  the
    39  public hearing is held. If the council proposes to disapprove the appli-
    40  cation  it  shall  afford  the  applicant  an opportunity to request and
    41  testify at a public hearing. The council may hold a  public  hearing  on
    42  the  application  on  its  own motion or upon the written request of any
    43  person.
    44    (e) Where this subdivision is inconsistent  with  subdivision  two  of
    45  this section, this subdivision shall prevail.]
    46    3-b. (a) This subdivision applies to an application under this section
    47  relating to a nursing home, and applies in addition to subdivision three
    48  of this section.
    49    (b)  The  application  shall  provide information as to the character,
    50  competence and standing in the community of every [present or  proposed]
    51  individual and entity of the applicant and specify the identity of every
    52  nursing  home  in which each of those individuals and entities is, or in
    53  the preceding seven years has held a controlling interest or has been  a
    54  controlling  person,  principal  stockholder or principal member [of the
    55  applicant, the identity of every nursing home in  which  each  of  those
    56  individuals  or  entities is, or in the preceding five years has been, a
        S. 6767                             3

     1  controlling person, principal stockholder or principal member]; and  the
     2  nature  of  that interest.  As used in this subdivision, "individual and
     3  entity of the applicant" shall include but not be limited to an individ-
     4  ual  or  entity  that is a controlling person, principal stockholder, or
     5  principal member of the applicant. The council  shall  not  approve  the
     6  application  unless  it  finds that each [of those individuals and enti-
     7  ties] individual and entity, in relation to [each such] ownership  of  a
     8  nursing  home  located  in  the United States, for at least the previous
     9  [three] seven years, demonstrated satisfactory character, competence and
    10  standing in the community and the nursing home provided  a  consistently
    11  high  level  of  care.  The  council  shall adopt rules and regulations,
    12  subject to the approval of the commissioner, to establish  the  criteria
    13  to be used to determine whether a consistently high level of care has or
    14  has  not  been  rendered  by an applicant [where one or more controlling
    15  persons, principal stockholders or principal members of the applicant is
    16  a controlling person, principal stockholder or principal member of a] at
    17  such nursing home [located in the  United  States].  The  council  shall
    18  [not] consider [that], at a minimum, the following occurrences to deter-
    19  mine  whether  a consistently high level of care has been delivered at a
    20  facility [in the United States that], and shall require the applicant to
    21  disclose and provide an explanation for  any  of  the  following  occur-
    22  rences:  (i) a facility that has earned a two-star rating or less by the
    23  federal [center] centers for Medicare and Medicaid [Services']  Services
    24  (CMS)  (or  a  comparable  rating  under  a successor CMS rating system)
    25  [or];(ii) where there have been violations of the state or federal nurs-
    26  ing home code, or other applicable rules and regulations,  that  threat-
    27  ened  to directly affect the health, safety or welfare of any patient or
    28  resident, including but not limited to a finding of immediate  jeopardy,
    29  or  actual  harm,  and  were  recurrent  or were not promptly corrected,
    30  including but not limited to repeat deficiencies for the same or similar
    31  violations over a three year period or during  the  entire  duration  of
    32  ownership  if  less  than three years, or any facility which has been in
    33  receivership; (iii) where a facility has closed as a result of a settle-
    34  ment agreement from a decertification action or licensure revocation; or
    35  (iv) has been involuntarily terminated from  the  Medicare  or  Medicaid
    36  program  in the prior five years, provided however, that where an appli-
    37  cant has taken over a facility and promptly corrected such deficiencies,
    38  the council may consider the application.
    39    [(c) Where this subdivision is inconsistent with subdivision three  of
    40  this section, this subdivision shall prevail.]
    41    §  2. Section 2803-x of the public health law, as amended by a chapter
    42  of the laws of 2021, amending the public health law relating to require-
    43  ments for residential health  care  facilities  and  nursing  homes,  as
    44  proposed  in  legislative  bills  numbers  S.  4893-A  and A. 5684-A, is
    45  amended to read as follows:
    46    § 2803-x. Requirements related to nursing homes and related assets and
    47  operations.  1. The operator of a nursing home shall notify the  commis-
    48  sioner  of  any  common  or familial ownership of any corporation, other
    49  entity or individual providing services to the operator or the facility.
    50  Such information shall also be included in the residency  agreement  for
    51  prospective  residents and as addendums for residents currently residing
    52  in the residential health care facility nursing home. The operator shall
    53  notify the department at least ninety days prior to  entering  into  any
    54  new  common or familial ownership of any corporation, or other entity or
    55  individual providing services to the operator of the facility. The oper-
    56  ator shall also provide notification to all residents and  their  repre-
        S. 6767                             4
 
     1  sentatives, staff and their representatives, and the state office of the
     2  long-term care ombudsman.
     3    2. The operator of a nursing home shall, on an annual basis, attest to
     4  the  department, in a form determined by the department, to the accuracy
     5  of the information provided to the department under this section.
     6    3. The operator of a nursing home may not enter into  any  arrangement
     7  to  guarantee  the  debt  or  other  obligation of a party which has not
     8  received establishment approval.
     9    4. The operator of a nursing home shall notify the department and  the
    10  state  office of the long-term care ombudsman at least ninety days prior
    11  to executing a letter of intent or other contractual  agreement  related
    12  to:
    13    a. the sale, mortgaging, encumbrance, or other disposition of the real
    14  property of the facility; and
    15    b.  the  [management] consulting, operations, staffing agency or other
    16  entity to be involved in the operations of the facility.
    17    5. [The department, shall, within ten days after receipt of a  notifi-
    18  cation required under subdivision four of this section, notify the state
    19  office  of the long-term care ombudsman of an operator of nursing home's
    20  intent to execute a binding letter of intent or other contractual agree-
    21  ment related to:
    22    a. the sale, mortgaging, encumbrance, or other disposition of the real
    23  property of the facility; and
    24    b. the management, operations, staffing agency or other entity  to  be
    25  involved in the operations of the facility.
    26    6.]  The  operator  of  a  nursing home shall notify all residents and
    27  their representatives, staff and their representatives,  and  the  state
    28  office  of  the long-term care ombudsman within five days of executing a
    29  binding letter of intent or other contractual agreement as described  in
    30  paragraphs a and b of subdivision four of this section.
    31    [7.]  6.  Where the operator of a nursing home provides or purports to
    32  provide, by any contract, agreement or arrangement,  for  any  party  to
    33  carry out or be delegated any activity or responsibility relating to the
    34  nursing  home,  that  shall not diminish any responsibility or liability
    35  that the operator would otherwise have for any such activity or  respon-
    36  sibility or for the operation of the nursing home.
    37    [8.]  7.  Any  new  owner[,]  or operator [or management company] of a
    38  nursing home shall retain all employees of the nursing home for at least
    39  a sixty-day transition period, except for  cause,  and  except  for  the
    40  nursing  home administrator [and], the director of nursing and any other
    41  supervisors, or any controlling person, principal stockholder or princi-
    42  pal member, and shall not reduce the wages or benefits,  or  modify  any
    43  other  terms  and conditions of employment, economic or otherwise during
    44  the transition period[, and except  for  cause].  Nothing  herein  shall
    45  require  any  owner  or operator to discontinue any pending disciplinary
    46  actions, including but not limited to termination, that  were  initiated
    47  before  the  sale  of  the nursing home. Nothing herein shall prevent an
    48  owner or operator from determining the overall size of the workforce  at
    49  the  facility,  except  as  provided  otherwise in this section or other
    50  applicable law.
    51    [9.] 8. In any instance where a nursing  home  is  sold  or  otherwise
    52  transferred  and  used for a purpose which is not a health care purpose,
    53  the operator shall remit to the department an amount equivalent  to  the
    54  undepreciated  value  of  capital assets for which the provider has been
    55  funded or reimbursed through  Medicaid  rate  adjustments  or  otherwise
        S. 6767                             5
 
     1  funded  or  reimbursed  with  resources  provided  by  the state for the
     2  purpose of improvement or transformation.
     3    §  3.  Section 3 of a chapter of the laws of 2021, amending the public
     4  health law relating to requirements for residential health care  facili-
     5  ties  and  nursing  homes,  as  proposed in legislative bills numbers S.
     6  4893-A and A. 5684-A, is amended to read as follows:
     7    § 3. This act shall take  effect  [immediately]  on  the  one  hundred
     8  eightieth day after it shall have become a law.
     9    §  4. The opening paragraph of subdivision 11 of section 2801-a of the
    10  public health law, as amended by section 57 of part A of chapter  58  of
    11  the laws of 2010, is amended and a new paragraph (e) is added to read as
    12  follows:
    13    Any person filing a proposed certificate of incorporation, articles of
    14  organization or an application for establishment of a residential health
    15  care  facility  for  approval  of  the public health and health planning
    16  council shall file with the commissioner such information [on the owner-
    17  ship of the property interests in  such  facility]  as  [shall]  may  be
    18  prescribed by regulation, including, but not limited to, the following:
    19    (e)  Information  pertaining  to staffing, the source of staffing, and
    20  staff skill mix.
    21    § 5. The public health law is amended by adding a new section 2829  to
    22  read as follows:
    23    §  2829.  Nursing  homes;  disclosure  requirements. 1. A nursing home
    24  shall post maximum rates to be charged for residency and services  on  a
    25  publicly  accessible website. Such posting shall be updated on an annual
    26  basis no later than April first of each year. Such posting shall  detail
    27  rates for each non-governmental payer source.
    28    2. A nursing home shall:
    29    (a)  publicly  list all owners on a website maintained by the facility
    30  and shall submit such list to the department for posting on its  website
    31  and  update  such information within thirty days of any change or trans-
    32  action affecting ownership;
    33    (b) publicly disclose on such facility's website and regularly  update
    34  the  name  and business address of any landlord of such facility's prem-
    35  ises; and
    36    (c) publicly provide a summary of all contracts for provision of goods
    37  or services for which such facility pays with any portion of Medicaid or
    38  Medicare funds or other agreements entered into by the nursing  home  on
    39  its  website  within  thirty  days  of  execution  of  such agreement or
    40  contract.
    41    3. The commissioner may make regulations necessary or  appropriate  to
    42  implement this section.
    43    § 6. Severability. If any provision of this act, or any application of
    44  any  provision  of  this act, is held to be invalid, or to violate or be
    45  inconsistent with any federal law or regulation, that shall  not  affect
    46  the  validity or effectiveness of any other provision of this act or any
    47  other application of any provision of this act.
    48    § 7. This act shall take effect immediately, provided,  however,  that
    49  sections  one,  two, four, five and six of this act shall take effect on
    50  the same date and in the same manner as a chapter of the laws  of  2021,
    51  amending the public health law relating to the requirements for residen-
    52  tial  health  care facilities and nursing homes, as proposed in legisla-
    53  tive bills numbers S. 4893-A and A. 5684-A, takes effect.