Bill Text: NY A00964 | 2011-2012 | General Assembly | Introduced
Bill Title: Establishes a quality incentive payment program for adult homes.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2012-01-04 - referred to health [A00964 Detail]
Download: New_York-2011-A00964-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 964 2011-2012 Regular Sessions I N A S S E M B L Y (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 S 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 S 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 S 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 S 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 S 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 S 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 S 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 S 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 S 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 S 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.