Tougher Rules for Adult Homes

Section 1. Paragraph (b) of subdivision 4 of section 460-d of the social services law, as amended by chapter 733 of the laws of 1994, is amended to read as follows:

(b) No operating certificate shall be revoked, suspended or limited without a hearing held in accordance with procedures established by department regulations, which procedures shall require that notice of the time and place of the hearing, and notice of the charges, shall be served in person or by certified mail addressed to the facility at least thirty days prior to the date of the hearing. A written answer to the charges may be filed with the department not less than ten business days prior to the date of the hearing. An operating certificate may, nevertheless, be suspended or limited without a hearing for a period not in excess of sixty days, upon written notice to the facility following a finding by the department that the public health, or an individual's health, safety or welfare, are in imminent danger; provided, however, that if the department demonstrates reasonable efforts to commence a hearing within such sixty day period and to complete such hearing within a reasonable period of time, the hearing officer may authorize the department to extend the period of suspension or limitation for an

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD04051-10-0

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appropriate period of time, but in no event beyond an additional thirty days.

§ 2. Subdivision 7 of section 460-d of the social services law, as added by chapter 669 of the laws of 1977, paragraph (a) as amended by chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524 of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chapter 733 of the laws of 1994, is amended to read as follows:

7. (a) The department shall adopt regulations establishing civil penalties of up to [one] two thousand dollars per day per violation, and, for repeat violations, under subparagraph two of paragraph (c) of this subdivision for which a prior penalty was assessed, up to three thousand dollars per day per violation to be assessed against all adult care facilities except facilities operated by a social services district for violations of (i) regulations of the department pertaining to the care of residents in such facilities, (ii) paragraph (a) of subdivision three of section four hundred sixty-one-a of this [chapter] article, or (iii) an order issued pursuant to subdivision eight of this section. The regulations shall specify the violations subject to penalty and the amount of the penalty to be assessed in connection with each such violation and shall specify that only civil penalties of up to [one] two thousand dollars per day per violation shall be assessed pursuant to this paragraph against an adult care facility found responsible for an act of retaliation or reprisal against any resident, employee, or other person for having filed a complaint with or having provided information to any long term care [patient] ombudsman functioning in accordance with section [five hundred forty-four or five hundred forty-five] two hundred eighteen of the [executive] elder law.

(b) [(1)] In addition to any other civil or criminal penalty provided by law, the department shall have the power to assess civil penalties in accordance with its regulations adopted pursuant to paragraph (a) of this subdivision, after a hearing conducted in accordance with the procedures established by regulations of the department. Such procedures shall require that notice of the time and place of the hearing, together with a statement of charges of violations, shall be served in person or by certified mail addressed to the facility at least thirty days prior to the date of the hearing. The statement of charges of violations shall set forth the existence of the violations, the amount of penalty for which it may become liable and the steps which must be taken to rectify the violation and, where applicable, a statement that the department contends that a penalty may be imposed under this paragraph regardless of rectification. An answer to the charges of violations, in writing, shall be filed with the department, not less than ten days prior to the date of hearing. The answer shall notify the department of the facility's position with respect to each of the charges and shall include all matters which if not disclosed in the answer would be likely to take the department by surprise. The commissioner, or a member of his staff who is designated and authorized by him to hold such hearing, may in his discretion allow the facility to prove any matter not included in the answer.

(c) (1) Where the facility satisfactorily demonstrates that it either had rectified the violations within thirty days of receiving written notification of the results of the inspection pursuant to section four hundred sixty-one-a of this [chapter] article, or had submitted within thirty days an acceptable plan for rectification and was rectifying the violations in accordance with the steps and within the additional peri-

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ods of time as accepted by the department in such plan, no penalty shall be imposed, except as provided in subparagraph two of this paragraph.

(2) Rectification shall not preclude the assessment of a penalty if the department establishes at a hearing that a particular violation, although corrected[, endangered or resulted in harm to any resident as the result of]:

(i) endangered any resident. Endangerment is defined as:

(A) the total or substantial failure of the facility's fire detection or prevention systems, or emergency evacuation procedures prescribed by department safety standard regulations;

[(ii)] (B) the retention of any resident who has been evaluated by the resident's physician as being medically or mentally unsuited for care in the facility or as requiring placement in a hospital or residential health care facility and for whom the operator is not making persistent efforts to secure appropriate placement;

[(iii)] (C) the failure in systemic practices and procedures which shall be defined as widespread or chronic, and material, noncompliance with statutory or regulatory requirements, including but not limited to the rights of residents under section four hundred sixty-one-d of this article;

[(iv)] (D) the failure of the operator to take actions as required by department regulations in the event of a resident's illness or accident;

[(v)] (E) the failure of the operator to provide at all times supervision of residents by numbers of staff at least equivalent to the night staffing requirement set forth in department regulations; or

[(vi)] (F) [unreasonable] threats of retaliation or taking reprisals, including but not limited to [unreasonable] threats of eviction or hospitalization, against any resident, employee or other person who makes a complaint concerning the operation of an adult care facility, participates in the investigation of a complaint or is the subject of an action identified in a complaint[.

The department shall specify in its regulations those regulations to which this subparagraph two shall apply.

(3) In assessing penalties pursuant to this paragraph, the department shall consider promptness of rectification, delay occasioned by the department, and the specific circumstances of the violations as mitigating factors.

(c)];

(ii) resulted in harm to any resident, including but not limited to:

(A) physical harm;

(B) loss or denial of access to money or other personal property, including but not limited to a violation of section one hundred thirtyone-o of this chapter; or

(C) being subjected to (I) conduct by an operator, administrator, case manager, or other employee in a supervisory position that violates the rights of a resident under section four hundred sixty-one-d of this article, or (II) an egregious failure by an operator, administrator, case manager, or other employee in a supervisory position to ensure the rights of a resident under section four hundred sixty-one-d of this article; or

(iii) is an identical repeat violation. Repeat violation is defined as a violation of the same provision of regulation for which the facility received notice of a citation issued by the department at any time in the previous twelve months.

(d) In assessing penalties pursuant to this paragraph, the department shall consider promptness of rectification, delay occasioned by the

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department, and the specific circumstances of the violations as mitigating factors.

(e) Upon the request of the department, the attorney general may commence an action in any court of competent jurisdiction against any facility subject to the provisions of this section, and against any person or corporation operating such facility, for the recovery of any penalty assessed by the department in accordance with the provisions of this subdivision.

[(d)] (f) Any such penalty assessed by the department may be released or compromised by the department, subject to and consistent with paragraph (c) of this subdivision, before the matter has been referred to the attorney general, and where such matter has been referred to the attorney general, any such penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the attorney general, after considering paragraph (c) of this subdivision and with the consent of the department.

§ 3. Paragraphs (a) and (b) of subdivision 9 of section 460-d of the social services law, paragraph (a) as amended by chapter 558 of the laws of 1999 and paragraph (b) as added by chapter 848 of the laws of 1992, are amended to read as follows:

(a) The department shall have authority to impose a civil penalty [not exceeding one thousand dollars per day] consistent with section twelve of the public health law against, and to issue an order requiring the closing of, after notice and opportunity to be heard, any facility which does not possess a valid operating certificate issued by the department and is an adult care facility subject to the provisions of this article and the regulations of the department. A hearing shall be conducted in accordance with procedures established by department regulations which procedures shall require that notice of the determination that the facility is an adult care facility and the reasons for such determination and notice of the time and place of the hearing be served in person on the operator, owner or prime lessor, if any, or by certified mail, return receipt requested, addressed to such person and received at least twenty days prior to the date of the hearing. If such operator, owner or prime lessor, if any, is not known to the department, then service may be made by posting a copy thereof in a conspicuous place within the facility or by sending a copy thereof by certified mail, return receipt requested, addressed to the facility. A written answer to the notice of violation may be filed with the department not less than five days prior to the date of the hearing. Demonstration by the facility that it possessed an operating certificate issued pursuant to this article, article twenty-eight of the public health law or article sixteen, [twenty-three,] thirty-one or thirty-two of the mental hygiene law at the time the hearing was commenced shall constitute a complete defense to any charges made pursuant to this subdivision.

(b) [The penalty authorized by this section shall begin to run thirty days after the department provides the operator, in writing, with a summary of the inspection of the facility by which the department determined that he or she is operating an uncertified adult care facility.] The submission of an application by the operator for an operating certificate for the facility shall not act as a bar to the imposition of a penalty against the operator of an unlicensed adult care facility.

§ 4. Paragraph (c) of subdivision 9 of section 460-d of the social services law is amended by adding a new subparagraph (iv) to read as follows:

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