Relates to the appointment of a temporary operator or voluntary receiver of adult care facilities, death and felony crime reports

Summary of 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.

Section 2 of the bill amends SSL § 460-d(4)(c) to provide that if an order or determination to suspend an operating certificate includes a condition that a temporary operator be appointed, the temporary operator would be entitled to the same powers and protections afforded to a receiver under SSL § 4614(4).

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 amends SSL § 461-f(1) to require that a receiver appointed by a court to operate an adult care facility be made a party to any agreement extending the period of time when the receiver will continue operating the facility. The bill also permits such receiver- ships to be continued for such period of time as is agreed upon by the parties.

Section 6 of the bill amends SSL §§ 461-f(2) to provide that in the case of a voluntary receivership, the receiver must be made a party to an agreement to extend the receivership, and the receivership will termi- nate as agreed by the parties.

Section 7 of the bill amends SSL § 461-m to include enriched housing programs among the adult care facilities that must: (1) report any death or attempted suicide of a resident to DOH within 24 hours; (2) report felonies believed to have been committed against residents to appropri- ate law enforcement authorities; and (3) report deaths, attempted suicides and felonies involving residents who at any time received mental hygiene services to the Commission on Quality of Care and Advoca- cy for Persons with Disabilities (CQCAPD). The bill also amends the time for reporting of felonies to law enforcement, so that a report is made as soon as possible but in any event within 24 hours of when it is believed that a felony was perpetrated against a resident. Finally, the bill replaces a reference to CQCAPD's former name, and requires that reporting to CQCAPD be made within 24 hours of the event in question.

Section 8 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(11) 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 9 of the bill adds new SSL §§ 2(38) and (39) to authorize resi- dents of an adult home, enriched housing program or residence for adults to designate a resident representative and a legal representative.

Section 10 of the bill adds new SSL §§ 461-d(3)(1), (m) and (n) to set forth additional rights of each resident of an adult care facility: (1) to choose his or her own health care providers for services not covered by the admission agreement; (2) to be fully informed by the primary care physician or mental health provider of his or her medical condition, proposed medications, treatment and services and the right to refuse such medication, treatment or services after being fully informed of the consequences; and (3) to choose his or her own legal representative.

Section 11 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 12 of the bill amends State Finance Law § 91-f to rename and expand the Adult Home Quality Enhancement Fund so that it can receive fines collected from enriched housing programs and residences for adults, as well as adult homes, and use such monies to pro-mote quality of care in all such facilities.

Section 13 of the bill amends SSL § 461-La(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 stat- utes and regulations, based on the facility's most recent inspection."

Section 14 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 15 of the bill adds new SSL § 461-b(9) to provide that an indi- vidual or entity which is not the duly approved operator of an adult home, enriched housing program or residence for adults shall not partic- ipate in the total gross income or net revenue of such adult care facil- ity.

Section 16 of the bill adds a new SSL § 461-b(10) to require that any fee for the lease of the real property on which an adult home, enriched housing program or residence for adults is located, and/or any fee for the lease of the premises in which such facility is located, shall be no greater than the commercially reasonable fair market value for similar properties or premises in the geographic region where the facility is located.

Section 17 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 (OMH), if the receiving facility meets applicable requirements.

Section 18 of the bill amends Public Health Law (PHL) §§ 4651(13) and (15) to revise the definitions of "aging in place" and "enhanced assisted living residence" (EALR) to permit the admission of residents to an EALR from outside the residence, as long as such residents are not in need of continual 24 hour nursing or medical care, are not chron- ically bedfast and are not so cognitively, physically or mentally impaired that their safety would be endangered.

Section 19 of the bill amends PHL § 4655(5) to clarify that the section specifically applies to adult care facilities rather than to "resi- dences."

Section 20 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 21 of the bill provides that the bill would take effect imme- diately.

Existing Law:

SSL § 2(21) defines an "adult care facility" as a residence which provides temporary or long-term residential care and services to adults who do not need nursing home services but are unable or substantially unable to live independently due to physical or other limitations. asso- ciated with age, physical or mental disabilities or other factors. The section identifies five types of adult care facilities: (1) family type homes for adults; (2) shelters for adults; (3) residences for adults; (4) enriched housing programs; and (5) adult homes.

SSL § 2(22) defines a "family type home for adults" as an adult care facility established and operated for the purpose of providing long-term residential care and personal care and/or supervision to four or fewer adult persons unrelated to the operator.

SSL § 2(23) defines a "shelter for adults" as an adult care facility established and operated for the purpose of providing temporary residen- tial care, room, board, supervision, information and referral.

SSL § 2(24) defines a "residence for adults" as an adult care facility established and operated for the purposes of providing long-term resi- dential care, room, board, housekeeping and supervision to five or more adults, unrelated to the operator.

SSL § 2(25) defines an "adult home" as an adult care facility estab- lished and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care (either directly or indi- rectly), and supervision to five or more adults unrelated to the opera- tor.

SSL § 460-d(4)(b) provides that the operating certificate of an adult home, residence for adult or enriched housing program may not be revoked, suspended or limited without a hearing. However, an operating certificate may be suspended or limited without a hearing for a period of no more than 60 days if DOH provides written notice of its finding that the public health or an individual's health, safety or welfare is in imminent danger.

SSL § 460-d(4)(c) provides that any order or determination to suspend an adult care facility's operating certificate will specify the conditions of the suspension which, among other things, may include the appoint- ment_ of a temporary operator to operate the facility during the term of the suspension.

SSL § 460-d(7)(b) provides for civil penalties for violations of appli- cable regulatory standards occurring in adult homes, residences for adults and enriched housing programs of up to $1,000 per day, in accord- ance with a fine schedule promulgated in regulation. No increased penal- ty is authorized for repeat violations, and an adult care facility oper- ator can avoid fines for most violations by rectifying the violations within 30 days of receiving a notice of the violations. Rectification of a violation does not preclude the assessment of a penalty if the violation, although corrected, endangered or resulted in harm to one or more residents as the result of specifically enumerated circumstances, such as the failure of the facility's fire prevention or evacuation procedures or a failure of the facility's systemic practices and proce- dures.

SSL § 460-(11) provides that when DOH proposes in writing to take certain actions against an adult care facility, including the revoca- tion, suspension or denial of an operating certificate or placement of the facility on the "Do Not Refer" list created pursuant to SSL 460d(15), DOH must notify the State mental hygiene agencies, the Depart- ment.of Correctional Services, the Division of Parole, local social services districts, and hospitals in the locality where the facility is located that such written notice has been issued.

SSL § 460-d(12) prohibits social services districts and other local government entities from making referrals to an adult care facility that has received written notice regarding the proposed revocation, suspen- sion or denial of an operating certificate or of the proposed placement of such facility on the "Do Not Refer"list created pursuant to SSL 460-d(l 5).

SSL § 460-d(15) requires DOH to maintain on its website the "Do Not Refer" list a list of all adult care facilities that have received writ- ten notice of enforcement actions, which must be promptly updated if such actions are resolved.

SSL § 461-a(2)(a) provides that every adult care facility must undergo an unannounced inspection each year, except that "facilities receiving the department's highest rating" need be inspected only once every 18 months.

SSL § 461-a(2)(c) requires 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 provide directions as may be appropriate as to the manner and time in which compliance with applica- ble requirements of law shall be effected. The section also requires adult homes and residences for adults to develop, biannually update and implement plans for quality assurance activities for each area of opera- tion.

SSL § 461-d(3) sets forth the rights of residents and provides that a resident may not waive such rights.

SSL § 4614(1) provides that to protect the health, safety and welfare of the residents of an adult care facility, DOH may authorize the continu- ing operation of a facility by a court-appointed receiver pursuant to a written agreement between DOH and the operator. Such agreement may not exceed a period of 60 days, except that it may be extended for an addi- tional 60-day period upon agreement of the parties.

SSL § 461-f(2) provides that the operator of an adult care facility may at any time request that DOH appoint a receiver to take over the opera- tion of the facility. If DOH agrees that such action is desirable, it may enter into an agreement with the operator for the appointment of a receiver under whatever conditions are acceptable to the parties. The agreement may not exceed a periode of 60 days; however, it may be extended for an additional 60-day period upon agreement by the parties.

SSL § 461-f(4) sets forth the powers and protections of a receiver appointed to operate an adult home, enriched housing program or resi- dence for adults.

State Finance Law § 91-f establishes the Adult Home Quality Enhancement Fund to receive fines collected from adult homes, which are to be used for purposes that promote quality in adult homes.

MHL §§ 29.15(i)(2)(1) and (I1)-pen-nit patients who are being discharged from facilities licensed or operated by the OMRDD, OASAS and OMH to adult homes, enriched housing programs, or residences for adults only if the receiving facility: (1) is consistent with the patient's needs; (2) is of high quality, as set forth in SSL § 460; (3) has not been notified that it is . the subject of proposed suspension or revocation proceedings; and (4) has not been placed on the "Do Not Refer" list.

PHL § 4651(1) defines an "assisted living residence" (ALR) as an entity which provides or arranges for housing, food, monitoring, case manage- ment services, and personal care or home care Services.

PHL § 4651(8) defines a residents representative as a family member or other individual identified in an ALR residency agreement who is author- ized by a resident to communicate with residence employees regarding the health, well-being, needs of and services provided to such resident and to assist the resident in obtaining needed services.

PHL § 4651(9) defines a resident's legal representative as a person duly authorized under applicable state law to act on behalf of a resident, which could include a court appointed guardian, an attorney in-fact under a durable power of attorney, an agent under a health be taken.

PHL § 4561(13) defines "aging in place" as meaning care and services at an EALR.

PHL §§ 4561(14) and (15) defines an EALR as an ALR that permits a resi- dent to "age in place" by remaining in the residence for as long as the residence is able and authorized to accommodate the resident's current

and changing needs. Residents are appropriate for EALR care if they are "chairfast" and need assistance to ambulate, transfer or walk, are dependent on medical equipment and require more than intermittent medical care, or suffer from chronic incontinence.

PHL § 4652 provides that adult homes and enriched housing programs which possess operating certificates issued pursuant to SSL Article 7, Title 11, may be licensed by DOH as ALRs.

PHL.§ 4655 provides that an ALR may be certified to operate some or all of its beds as an EALR to provide enhanced assisted living care to resi- dents who do not need 24-hour medical or nursing care. PHL § 4655 also provides that an ALR may be certified as a Special Needs Assisted Living Residence (SNALR) to care for residents with special needs such as dementia or cognitive impairments, An ALR may be certified as either an EALR or a SNALR or both, but is not required to seek either certif- ication.

Chapter 462 of the Laws of 1996 established the QUIP program, authoriz- ing DOH to award funds to adult homes, residences for adults and enriched housing program that are, based on the most recent inspections, in compliance with applicable statutes and regulations. QUIP funds are used to improve a facility's physician environment or to improve the quality of care and services to residents. DOH has the discretion to deny QUIP funds to a facility if that facility hat been found, after a hearing conducted pursuant to SSL § 460-d (7)(b)(1), to have been out of compliance with applicable statutes and regulations, but must deny payment to a facility that has received notice of a proposed revocation or suspension of its operating certificate or a proposed assessment of penalties for endangerment violations pursuant to SSL § 460-d (7)(b)(2).

Legislative History: A similar departmental bill was introduced in 2007 (A.8701 /S.5155) but did not pass.

Statement in Support: Adult homes, enriched housing programs and resi- dences 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 establishing in law important resident rights and protections, strengthening the enforcement of applicable standards, improving inspection report procedures and removing obstacles to the institution or continuation of temporary operators or receivers.

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 improves current reporting requirements related to resi- dent deaths or attempted suicides and felonies committed against resi- dents. The bill makes these requirements, already applicable to adult homes and residences for adults, applicable to enriched housing programs as well, and requires that felonies be reported within 24 hours rather than 48 hours as set forth in existing law. In addition, although reports of deaths, suicides and felonies involving residents who receive or have received mental hygiene services must be reported. to CQCAPD under current law, there is no deadline for doing so. The bill requires such reporting to take place within 24 hours of an applicable event.

Moreover, the bill codifies the right of residents to designate resident representatives and legal representatives and provides that such repre- sentatives may not waive any of the rights enumerated in SSL § 461-d(3). The bill also sets forth in statute the rights of residents to choose their own health care providers and be fully informed about treatment and the right to refuse treatment after being fully informed of the consequences. These changes are consistent with the ALR provisions of PHL Article 46-B. which expressly recognize such rights.

Other protections embodied in the bill include a prohibition on anyone other than an approved operator participating in a facility's revenues. This is intended to prevent situations which could improperly influence operational decisions to the detriment of patient care. Further, the bill contains a requirement that any fee paid by a facility for the lease of the property or premises where the facility is located be no greater than fees charged for similar leases, preventing an operator who owns the property underneath the facility from improperly inflating the rental fee. Earlier versions of this bill also included a provision that restricted operators of adult care facilities from making charitable contributions with funds provided by the State to ensure that State monies are used for the care of residents. This provision has been deleted as DOH believes that if already has the authority under Medicaid and Social Security regulations to so restrict the use of State monies.

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. Addition-ally, the bill bestows upon a temporary operator appointed to operate a facility during the operator's suspension the same powers and protections that are available to a receiver pursuant to SSL § 461-f(4). This will help ensure that a temporary operator has the ability and resources to effec- tively operate a facility, and will help recruit entities which may otherwise be reluctant to serve as temporary operators.

With regard to receivers, the bill makes technical corrections to S&L 461-f, which currently limits the period of time for which a court-ap- pointed receivership-can be voluntarily extended, and similarly limits the period of time for the extension oft.r voluntary receivership. The bill leaves the duration of such receiverships to the receivership agreements, and mandates that receivers be made parties to such agree- ments. Flexibility is warranted because receiverships typically last for more than one year. In most cases, either the receiver or another entity is preparing an application for a change of operator, which usually takes several months to be reviewed and have a determination made. In some cases, where the receiver determines that it is not feasible to continue operation of the facility, DOH may approve a closure plan that also may take several months to implement.

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.

Finally, the bill addresses issues concerning adult care facilities that are certified as ALRs, EALRs, and SNALRs under PHL Article 46-B. Currently, PHL § 4651 allow ALR residents to move to the EALR level only if they reside in an ALR with EALR certification; individuals cannot be admitted directly to an EALR from any other source. The bill would allow individuals who are appropriate for placement in an EALR to be admitted from other settings, such as the community, other ALRs or other EALRs, but reiterates that a resident requiring 24-hour nursing or medical care may not be admitted to an EALR. In addition, the bill revises PHL § 4655 to replace a reference to "residences" with "adult care facilities," clarifying that if such facilities serve residents with dementia or cognitive impairments, they must be certified as SNALRs.

Budget Implications: This bill is not expected to have a fiscal impact on the State.

Effective Date: This bill would take effect immediately, except that section 20 of the bill will take effect 80 days after enactment.