STATE OF NEW YORK
________________________________________________________________________
9025
IN SENATE
October 5, 2020
___________
Introduced by Sens. RIVERA, MAY, SKOUFIS -- 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 requirements for
residential health care facilities
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivisions 2 and 3 of section 2801-a of the public
2 health law, as amended by section 57 of part A of chapter 58 of the laws
3 of 2010, are amended to read as follows:
4 2. With respect to the incorporation or establishment of any hospital,
5 as defined in this article, the public health and health planning coun-
6 cil shall give written approval after all of the following requirements
7 have been met. An application for approval of the proposed certificate
8 of incorporation, articles of organization or establishment shall be
9 filed with the public health and health planning council together with
10 such other forms and information as shall be prescribed by, or accepta-
11 ble to, the public health and health planning council. Thereafter, the
12 public health and health planning council shall (a) provide notice to
13 the public, nursing homes residents and their representatives, staff and
14 their representatives, and the state office of the long-term care
15 ombudsman and the regional office having geographical jurisdiction of
16 the area where the proposed institution is to be located of the proposed
17 certificate or application on the department's website within thirty
18 days of receipt; provide a mechanism to submit written comments elec-
19 tronically on the proposed certificate or application to the public
20 health and health planning council; and provide at least ninety days for
21 such comment period, and (b) forward a copy of the proposed certificate
22 or application for establishment, and accompanying documents, to the
23 health systems agency, if any, having geographical jurisdiction of the
24 area where the proposed institution is to be located and to the state
25 office of the long-term care ombudsman and the regional office having
26 geographical jurisdiction of the area where the proposed institution is
27 to be located within thirty days of receipt. The public health and
28 health planning council shall act upon such application after the health
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17311-03-0
S. 9025 2
1 systems agency [has], office of the state long-term care ombudsman,
2 regional office and the public have had a reasonable time, but not less
3 than ninety days, to submit their recommendations. At the time members
4 of the public health and health planning council are notified that an
5 application is scheduled for consideration, the applicant, the public,
6 the state office of the long-term care ombudsman, the regional offices,
7 and the health systems agency shall be so notified in writing which may
8 be through electronic means. The public health and health planning coun-
9 cil shall afford the applicant an opportunity to present information in
10 person concerning the application to a committee designated by the coun-
11 cil. The public health and health planning council shall not take any
12 action contrary to the advice of the health systems agency, the public,
13 the state office of the long-term care ombudsman or the regional office
14 until it affords [to the health systems agency] them an opportunity to
15 request a public hearing and, if so requested, a public hearing shall be
16 held. If the public health and health planning council proposes to
17 disapprove the application it shall afford the applicant an opportunity
18 to request a public hearing. The public health and health planning coun-
19 cil may hold a public hearing on the application on its own motion. Any
20 public hearing held pursuant to this subdivision may be conducted by the
21 public health and health planning council, or by any individual desig-
22 nated by the public health and health planning council. Beginning on
23 January first, nineteen hundred ninety-four, and each year thereafter, a
24 complete application received between January first and June thirtieth
25 of each year shall be reviewed by the appropriate health systems agency
26 and the department and presented to the public health and health plan-
27 ning council for its consideration prior to June thirtieth of the
28 following year and a complete application received between July first
29 and December thirty-first of each year shall be reviewed by the appro-
30 priate health systems agency and the department presented to the public
31 health and health planning council for consideration prior to December
32 thirty-first of the following year.
33 3. The public health and health planning council shall not approve a
34 certificate of incorporation, articles of organization or application
35 for establishment unless it is satisfied, insofar as applicable, as to
36 (a) the public need for the existence of the institution at the time and
37 place and under the circumstances proposed, provided, however, that in
38 the case of an institution proposed to be established or operated by an
39 organization defined in subdivision one of section one hundred seventy-
40 two-a of the executive law, the needs of the members of the religious
41 denomination concerned, for care or treatment in accordance with their
42 religious or ethical convictions, shall be deemed to be public need; (b)
43 the character, competence, and standing in the community, of the
44 proposed incorporators, directors, sponsors, stockholders, members or
45 operators; with respect to any proposed incorporator, director, sponsor,
46 stockholder, member or operator who is already or within the past ten
47 years has been an incorporator, director, sponsor, member, principal
48 stockholder, principal member, or operator of any hospital, private
49 proprietary home for adults, residence for adults, or non-profit home
50 for the aged or blind which has been issued an operating certificate by
51 the state department of social services, or a halfway house, hostel or
52 other residential facility or institution for the care, custody or
53 treatment of the mentally disabled which is subject to approval by the
54 department of mental hygiene, no approval shall be granted unless the
55 public health and health planning council, having afforded an adequate
56 opportunity of not less than ninety days to members of the public, resi-
S. 9025 3
1 dents and their representatives, staff and their representatives, the
2 state office of the long-term care ombudsman, the regional offices, and
3 members of health systems agencies, if any, having geographical juris-
4 diction of the area where the institution is to be located to be heard,
5 to comment through the department's website and through other means on
6 the application, the character and competency of the individuals apply-
7 ing, and/or the consistently high level of care that has or has not been
8 rendered, shall affirmatively find by substantial evidence as to each
9 such incorporator, director, sponsor, principal stockholder or operator
10 that a substantially consistent high level of care is being or was being
11 rendered in each such hospital, home, residence, halfway house, hostel,
12 or other residential facility or institution with which such person is
13 or was affiliated; for the purposes of this paragraph, the public health
14 and health planning council shall adopt rules and regulations, subject
15 to the approval of the commissioner, to establish the criteria to be
16 used to determine whether a substantially consistent high level of care
17 has been rendered, provided, however, that there shall not be a finding
18 that a substantially consistent high level of care has been rendered by
19 an applicant where one or more individuals or entities with a five
20 percent or greater ownership interest in the applicant has a five
21 percent or greater ownership interest in a facility located in the
22 United States that has on average for any of the four most recent quar-
23 ters, three hours or less total direct care staff time per resident per
24 day or less than one-half hour per resident per day registered nurse
25 staffing, as published by the Center for Medicare and Medicaid Services
26 in the federal center for Medicare and Medicaid Services' (CMS) payroll
27 based journal data or where there have been violations of the state
28 [hospital] or federal nursing home code, or other applicable rules and
29 regulations, that (i) threatened to directly affect the health, safety
30 or welfare of any patient or resident, including but not limited to a
31 finding of immediate jeopardy, or actual harm, and (ii) were recurrent
32 or were not promptly corrected, including but not limited to repeat
33 deficiencies for the same or similar violations over a three year period
34 or during the entire duration of ownership if less than three years, or
35 (iii) any facility which has received a Double G citation issued by the
36 Centers for Medicare and Medicaid Services in the prior three years; (c)
37 the financial resources of the proposed institution and its sources of
38 future revenues; and (d) such other matters as it shall deem pertinent,
39 including but not limited to the proposed incorporators, directors,
40 sponsors, stockholders, members or operators having affiliations with or
41 interests in a facility anywhere in the United States which: (i) is
42 listed on the CMS special focus facility list, or its successor, or (ii)
43 is listed on the CMS special focus facility candidate list, or its
44 successor, or (iii) received inadequate performance scores over the
45 previous three years on the New York state nursing home quality initi-
46 ative or on similar quality measurement initiatives or tools, or (iv)
47 has been in receivership; closed as a result of a settlement agreement
48 from a decertification action or licensure revocation; or has been
49 involuntarily terminated from the Medicare or Medicaid program in the
50 prior five years, or (v) has been convicted of patient abuse, neglect or
51 exploitation, (vi) has been the subject of an enforcement action by the
52 state Medicaid fraud control unit or the federal health and human
53 services office of inspector general, or (vii) has outstanding
54 violations with the national labor relations board or the occupational
55 safety and health administration.
S. 9025 4
1 § 2. Section 2803-x of the public health law, as added by chapter 677
2 of the laws of 2019, is amended to read as follows:
3 § 2803-x. Requirements related to residential health care facilities
4 and related assets and operations. 1. The operator of a residential
5 health care facility shall notify the commissioner of any common or
6 familial ownership of any corporation, other entity or individual
7 providing services to the operator or the facility. Such information
8 shall also be included in the residency agreement for prospective resi-
9 dents and as addendums for residents currently residing in the residen-
10 tial health care facility. The operator shall notify the department at
11 least ninety days prior to entering into any new common or familial
12 ownership of any corporation, or other entity or individual providing
13 services to the operator of the facility. The operator shall also
14 provide notification to all residents and their representatives, staff
15 and their representatives, and the state office of the long-term care
16 ombudsman.
17 2. The operator of a residential health care facility shall, on an
18 annual basis, attest to the department, in a form determined by the
19 department, to the accuracy of the information provided to the depart-
20 ment under this section.
21 3. The operator of a residential health care facility may not enter
22 into any arrangement to guarantee the debt or other obligation of a
23 party which has not received establishment approval.
24 4. The operator of a residential health care facility shall notify the
25 department at least ninety days prior to executing a letter of intent or
26 other contractual agreement related to:
27 a. the sale, mortgaging, encumbrance, or other disposition of the real
28 property of the facility; and
29 b. the management, operations, staffing agency or other entity to be
30 involved in the operations of the facility.
31 5. The department, shall, within ten days after receipt of a notifica-
32 tion required under subdivision four of this section, notify the state
33 office of the long-term care ombudsman of an operator of a residential
34 health care facility's intent to execute a letter of intent or other
35 contractual agreement related to:
36 a. the sale, mortgaging, encumbrance, or other disposition of the real
37 property of the facility; and
38 b. the management, operations, staffing agency or other entity to be
39 involved in the operations of the facility.
40 6. The operator of a residential health care facility shall notify all
41 residents and their representatives, staff and their representatives,
42 and the state office of the long-term care ombudsman within five days
43 of executing a letter of intent or other contractual agreement as
44 described in paragraphs a and b of subdivision four of this section. The
45 department shall make regulations and take other actions to implement
46 procedures for such notification.
47 7. The operator of a residential health care facility shall retain
48 sufficient authority and control to discharge its responsibilities and
49 the department shall by regulations outline those elements of control
50 which shall not be delegated to a managing entity.
51 8. Any new owner, operator or management company of a residential
52 health care facility shall retain all employees for a sixty-day transi-
53 tion period, except for the nursing home administrator and the director
54 of nursing, and shall not reduce the wages or benefits, or modify any
55 other terms and conditions of employment, economic or otherwise during
56 the transition period.
S. 9025 5
1 9. In any instance where a residential health care facility is sold or
2 otherwise transferred and used for a purpose which is not a health care
3 purpose, the operator shall remit to the department an amount equivalent
4 to the undepreciated value of capital assets for which the provider has
5 been funded or reimbursed through Medicaid rate adjustments or otherwise
6 funded or reimbursed with resources provided by the state for the
7 purpose of improvement or transformation.
8 § 3. This act shall take effect immediately.