Amd 460-d, 461-c, 461-d, 461-e & 461-a, Soc Serv L; amd 29.15, Ment Hyg L
Relates to violations of safety conditions in adult care facilities; provides penalties for safety violations and operating without a valid license; prohibits reductions in fines in certain circumstances where a patient is endangered or harmed.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A196
SPONSOR: Gottfried TITLE OF BILL:
An act to amend the social services law and the mental hygiene law, in
relation to violations of safety conditions in adult care facilities
PURPOSE OR GENERAL IDEA OF BILL:
To protect the health, safety and quality of life of adult care facility
(ACF) residents by improving Department of Health safety enforcement.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends SSL § 460-d(4)(b), which authorizes a pre-hearing
suspension or limitation of an ACF's operating certificate, until a DOH
hearing is begun. This section provides that if there is a finding of
imminent danger to the public health or a resident's health, safety or
welfare, the suspension or limitation may be extended for up to 30 days
if DOH makes reasonable efforts to complete the hearing.
Section 2 amends SSL § 460-d(7) to increase potential fines for ACF
violations from $1,000 per day to $2,000 per violation per day, and
$3,000 per violation per day for identical repeat violations. Recti-
fication within 30 days will continue to mitigate a fine, except for
violations that that are proven after an hearing to have endanger resi-
dents or caused harm by violating the already existing rights of resi-
dents, or is an identical repeated violation.
Sections 3 and 4 amend SSL § 460-d(9) to conform actions against unli-
censed ACFs to PHL § 12, and allow DOH inspections when a facility is
unlicensed and there is reason to believe it poses an imminent danger to
residents.
Sections 5 and 6 amend SSL §§ 460-d(11) and (12), which provides for DOH
to notify hospitals when DOH issues notice of proposed revocation,
suspension or limitation, but not a proposed fine, of an ACF operating
certificate or places it on the "Do Not Refer" list. The bill provides
that notice shall also go to nursing homes and other ACFs. The Depart-
ment must notify all parties within ten days of the violation being
resolved.
Section 7 adds a new SSL § 460-d(18) to provide that when DOH proposes
an enforcement action under SSL § 460-d(11) when there is a condition
that constitutes an imminent danger any resident, DOH. may prohibit the
operator from admitting new residents until the danger no longer exists.
Section 8 adds a new 461-c(10) to require ACFs to post resident agree-
ments but not the rates charged on the web.
Section 9 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 10 adds a new SSL § 461-e(3-a) to require ACFs to publically
post complaint-driven inspection reports that resulted in fines, and
make all complaint -driven inspection reports available to residents,
prospective residents, and resident councils.
Section 11 amends SSL § 461-a(2) to delete 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 in compliance based on
the facility's most recent inspection. This section also authorizes,
rather than mandates, that the inspection report provide directions as
to how compliance is achieved, and requires the operator to submit a
correction plan within 30 calendar days. DOH will answer as to the
acceptability of the plan within another 30 days. Additionally, enriched
housing programs are required to develop and implement quality assurance
activities for each area of operation.
Section 12 amends Mental Hygiene Law § 29.15(i)(2)(I) and (II) to
include enriched housing programs among the facilities to which a
patient can be referred when discharged from facilities licensed or
operated by the Office of Mental Retardation and Developmental Disabili-
ties (OMRDD), the Office of Alcoholism and Substance Abuse Services
(OASAS) or the Office of Mental Health (OMH), if the receiving facility
meets applicable requirements.
JUSTIFICATION: Adult homes, enriched housing programs and residences
for adults - collectively referred to as adult care facilities (ACF) -
are important models of care that serve as the homes of thousands of New
York State residents. This bill modernizes and strengthens inspection
and enforcement process and transparency.
Many ACFs operate within the law and provide quality services. But year
after year, there are horrendous cases of severe deficiencies affecting
vulnerable residents. This bill offers more clear guidance for issues of
endangerment, harm, repeated violations and unlicensed facilities, as
well as mitigating circumstances that will enable otherwise good facili-
ties to avoid debilitating penalties. The bill would permit a "per
violation" fine in addition to the current law permitting "per day"
fines. The maximum fine per day has not been raised since the law's
inception in 1977. While $1,000 may have been a significant sum then,
too often now it is just the "cost of doing business." Compared to the
$10,000 maximum per day facing nursing homes, $2,000 per violation is an
appropriate deterrent for ACFs. Currently, other ACFs and nursing homes
are not notified and so make referrals to the ACFs on the "do not refer"
list. This bill corrects that.
Several court decisions have interpreted SSL § 461-a(2)(3) as requiring
DOH inspection reports to indicate areas of operation where an ACF is
and is not in compliance, and to require DOH to specifically direct how
a violation is to be rectified. This bill provides clarity so that DOH
resources will be better spent.
PRIOR LEGISLATIVE HISTORY:
2015-2016: A5820-A - advanced to third reading
2017-2018: A.2743 - advanced to third reading
2019-2020: A.4416-C - reported to Codes Committee
FISCAL IMPLICATIONS:
No fiscal impact on the State or local governments.
EFFECTIVE DATE:
Ninetieth day after it becomes a law.
STATE OF NEW YORK
________________________________________________________________________
196
2021-2022 Regular Sessions
IN ASSEMBLY(Prefiled)
January 6, 2021
___________
Introduced by M. of A. GOTTFRIED, BRONSON, STECK, GALEF, L. ROSENTHAL,
ABINANTI, BENEDETTO, DINOWITZ, HYNDMAN, LUPARDO, SAYEGH, BARRON,
DARLING, SEAWRIGHT, ENGLEBRIGHT -- Multi-Sponsored by -- M. of A.
COOK, SIMON, THIELE -- read once and referred to the Committee on
Health
AN ACT to amend the social services law and the mental hygiene law, 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. Paragraph (b) of subdivision 4 of section 460-d of the
2 social services law, as amended by chapter 733 of the laws of 1994, is
3 amended to read as follows:
4 (b) No operating certificate shall be revoked, suspended or limited
5 without a hearing held in accordance with procedures established by
6 department regulations, which procedures shall require that notice of
7 the time and place of the hearing, and notice of the charges, shall be
8 served in person or by certified mail addressed to the facility at least
9 thirty days prior to the date of the hearing. A written answer to the
10 charges may be filed with the department not less than ten business days
11 prior to the date of the hearing. An operating certificate may, never-
12 theless, be suspended or limited without a hearing for a period not in
13 excess of sixty days, upon written notice to the facility following a
14 finding by the department that the public health, or an individual's
15 health, safety or welfare, are in imminent danger; provided, however,
16 that if the department demonstrates reasonable efforts to commence a
17 hearing within such sixty day period and to complete such hearing within
18 a reasonable period of time, the hearing officer may authorize the
19 department to extend the period of suspension or limitation for an
20 appropriate period of time, but in no event beyond an additional thirty
21 days.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00265-01-1
A. 196 2
1 § 2. Subdivision 7 of section 460-d of the social services law, as
2 added by chapter 669 of the laws of 1977, paragraph (a) as amended by
3 chapter 719 of the laws of 1989, paragraph (b) as amended by chapter 524
4 of the laws of 1984, subparagraph 2 of paragraph (b) as amended by chap-
5 ter 733 of the laws of 1994, is amended to read as follows:
6 7. (a) The department shall adopt regulations establishing civil
7 penalties of up to [one] two thousand dollars per day per violation,
8 and, for repeat violations, under subparagraph two of paragraph (c) of
9 this subdivision for which a prior penalty was assessed, up to three
10 thousand dollars per day per violation to be assessed against all adult
11 care facilities except facilities operated by a social services district
12 for violations of (i) regulations of the department pertaining to the
13 care of residents in such facilities, (ii) paragraph (a) of subdivision
14 three of section four hundred sixty-one-a of this [chapter] article, or
15 (iii) an order issued pursuant to subdivision eight of this section. The
16 regulations shall specify the violations subject to penalty and the
17 amount of the penalty to be assessed in connection with each such
18 violation and shall specify that only civil penalties of up to [one] two
19 thousand dollars per day per violation shall be assessed pursuant to
20 this paragraph against an adult care facility found responsible for an
21 act of retaliation or reprisal against any resident, employee, or other
22 person for having filed a complaint with or having provided information
23 to any long term care [patient] ombudsman functioning in accordance with
24 section [five hundred forty-four or five hundred forty-five] two hundred
25 eighteen of the [executive] elder law.
26 (b) [(1)] In addition to any other civil or criminal penalty provided
27 by law, the department shall have the power to assess civil penalties in
28 accordance with its regulations adopted pursuant to paragraph (a) of
29 this subdivision, after a hearing conducted in accordance with the
30 procedures established by regulations of the department. Such procedures
31 shall require that notice of the time and place of the hearing, together
32 with a statement of charges of violations, shall be served in person or
33 by certified mail addressed to the facility at least thirty days prior
34 to the date of the hearing. The statement of charges of violations shall
35 set forth the existence of the violations, the amount of penalty for
36 which it may become liable and the steps which must be taken to rectify
37 the violation and, where applicable, a statement that the department
38 contends that a penalty may be imposed under this paragraph regardless
39 of rectification. An answer to the charges of violations, in writing,
40 shall be filed with the department, not less than ten days prior to the
41 date of hearing. The answer shall notify the department of the facili-
42 ty's position with respect to each of the charges and shall include all
43 matters which if not disclosed in the answer would be likely to take the
44 department by surprise. The commissioner, or a member of his staff who
45 is designated and authorized by him to hold such hearing, may in his
46 discretion allow the facility to prove any matter not included in the
47 answer.
48 (c) (1) Where the facility satisfactorily demonstrates that it either
49 had rectified the violations within thirty days of receiving written
50 notification of the results of the inspection pursuant to section four
51 hundred sixty-one-a of this [chapter] article, or had submitted within
52 thirty days an acceptable plan for rectification and was rectifying the
53 violations in accordance with the steps and within the additional peri-
54 ods of time as accepted by the department in such plan, no penalty shall
55 be imposed, except as provided in subparagraph two of this paragraph.
A. 196 3
1 (2) Rectification shall not preclude the assessment of a penalty if
2 the department establishes at a hearing that a particular violation,
3 although corrected[, endangered or resulted in harm to any resident as
4 the result of]:
5 (i) endangered any resident. Endangerment is defined as:
6 (A) the total or substantial failure of the facility's fire detection
7 or prevention systems, or emergency evacuation procedures prescribed by
8 department safety standard regulations;
9 [(ii)] (B) the retention of any resident who has been evaluated by the
10 resident's physician as being medically or mentally unsuited for care in
11 the facility or as requiring placement in a hospital or residential
12 health care facility and for whom the operator is not making persistent
13 efforts to secure appropriate placement;
14 [(iii)] (C) the failure in systemic practices and procedures which
15 shall be defined as widespread or chronic, and material, noncompliance
16 with statutory or regulatory requirements, including but not limited to
17 the rights of residents under section four hundred sixty-one-d of this
18 article;
19 [(iv)] (D) the failure of the operator to take actions as required by
20 department regulations in the event of a resident's illness or accident;
21 [(v)] (E) the failure of the operator to provide at all times super-
22 vision of residents by numbers of staff at least equivalent to the night
23 staffing requirement set forth in department regulations; or
24 [(vi)] (F) [unreasonable] threats of retaliation or taking reprisals,
25 including but not limited to [unreasonable] threats of eviction or
26 hospitalization, against any resident, employee or other person who
27 makes a complaint concerning the operation of an adult care facility,
28 participates in the investigation of a complaint or is the subject of an
29 action identified in a complaint[.
30 The department shall specify in its regulations those regulations to
31 which this subparagraph two shall apply.
32 (3) In assessing penalties pursuant to this paragraph, the department
33 shall consider promptness of rectification, delay occasioned by the
34 department, and the specific circumstances of the violations as mitigat-
35 ing factors.
36 (c)];
37 (ii) resulted in harm to any resident, including but not limited to:
38 (A) physical harm;
39 (B) loss or denial of access to money or other personal property,
40 including but not limited to a violation of section one hundred thirty-
41 one-o of this chapter; or
42 (C) being subjected to (I) conduct by an operator, administrator, case
43 manager, or other employee in a supervisory position that violates the
44 rights of a resident under section four hundred sixty-one-d of this
45 article, or (II) an egregious failure by an operator, administrator,
46 case manager, or other employee in a supervisory position to ensure the
47 rights of a resident under section four hundred sixty-one-d of this
48 article; or
49 (iii) is an identical repeat violation. Repeat violation is defined as
50 a violation of the same provision of regulation for which the facility
51 received notice of a citation issued by the department at any time in
52 the previous twelve months.
53 (d) In assessing penalties pursuant to this paragraph, the department
54 shall consider promptness of rectification, delay occasioned by the
55 department, and the specific circumstances of the violations as mitigat-
56 ing factors.
A. 196 4
1 (e) Upon the request of the department, the attorney general may
2 commence an action in any court of competent jurisdiction against any
3 facility subject to the provisions of this section, and against any
4 person or corporation operating such facility, for the recovery of any
5 penalty assessed by the department in accordance with the provisions of
6 this subdivision.
7 [(d)] (f) Any such penalty assessed by the department may be released
8 or compromised by the department, subject to and consistent with para-
9 graph (c) of this subdivision, before the matter has been referred to
10 the attorney general, and where such matter has been referred to the
11 attorney general, any such penalty may be released or compromised and
12 any action commenced to recover the same may be settled and discontinued
13 by the attorney general, after considering paragraph (c) of this subdi-
14 vision and with the consent of the department.
15 § 3. Paragraphs (a) and (b) of subdivision 9 of section 460-d of the
16 social services law, paragraph (a) as amended by chapter 558 of the laws
17 of 1999 and paragraph (b) as added by chapter 848 of the laws of 1992,
18 are amended to read as follows:
19 (a) The department shall have authority to impose a civil penalty [not
20 exceeding one thousand dollars per day] consistent with section twelve
21 of the public health law against, and to issue an order requiring the
22 closing of, after notice and opportunity to be heard, any facility which
23 does not possess a valid operating certificate issued by the department
24 and is an adult care facility subject to the provisions of this article
25 and the regulations of the department. A hearing shall be conducted in
26 accordance with procedures established by department regulations which
27 procedures shall require that notice of the determination that the
28 facility is an adult care facility and the reasons for such determi-
29 nation and notice of the time and place of the hearing be served in
30 person on the operator, owner or prime lessor, if any, or by certified
31 mail, return receipt requested, addressed to such person and received at
32 least twenty days prior to the date of the hearing. If such operator,
33 owner or prime lessor, if any, is not known to the department, then
34 service may be made by posting a copy thereof in a conspicuous place
35 within the facility or by sending a copy thereof by certified mail,
36 return receipt requested, addressed to the facility. A written answer to
37 the notice of violation may be filed with the department not less than
38 five days prior to the date of the hearing. Demonstration by the facil-
39 ity that it possessed an operating certificate issued pursuant to this
40 article, article twenty-eight of the public health law or article
41 sixteen, [twenty-three,] thirty-one or thirty-two of the mental hygiene
42 law at the time the hearing was commenced shall constitute a complete
43 defense to any charges made pursuant to this subdivision.
44 (b) [The penalty authorized by this section shall begin to run thirty
45 days after the department provides the operator, in writing, with a
46 summary of the inspection of the facility by which the department deter-
47 mined that he or she is operating an uncertified adult care facility.]
48 The submission of an application by the operator for an operating
49 certificate for the facility shall not act as a bar to the imposition of
50 a penalty against the operator of an unlicensed adult care facility.
51 § 4. Paragraph (c) of subdivision 9 of section 460-d of the social
52 services law is amended by adding a new subparagraph (iv) to read as
53 follows:
54 (iv) If the department of health determines, based on a complaint or
55 other facts known to the department, that there is reason to believe
56 that an individual or entity is operating an adult home, enriched hous-
A. 196 5
1 ing program, or residence for adults which does not possess a valid
2 operating certificate issued by the department, and that one or more
3 conditions or activities at such facility constitute or are likely to
4 give rise to an immediate danger to the health of the residents, and
5 awaiting a court order pursuant to subparagraph (iii) of this paragraph
6 would be seriously detrimental to the health of such residents, the
7 department of health may, notwithstanding an objection by the operator,
8 administrator or other person in charge, inspect the entire premises,
9 which shall include access to all dwellings on the said property which
10 house tenants/occupants as well as access to such tenants/occupants, for
11 the purpose of ascertaining whether such danger exists or is likely to
12 arise on an immediate basis. The department of health may request the
13 assistance of local law enforcement for purposes of carrying out such
14 inspection and may take any appropriate action if it determines that
15 such danger exists or is likely to arise, including issuing a written
16 notice directing the operator, administrator or other person in charge
17 of such facility to cease or correct the condition or activity at issue.
18 As promptly as possible thereafter, within a period not to exceed
19 fifteen days, the commissioner shall provide the operator an opportunity
20 to be heard and to present any proof that such condition or activity
21 does not constitute a danger to the health of the residents of such
22 facility. The attorney general, upon request of the department of
23 health, shall be authorized to apply to the supreme court in the county
24 in which the facility is located for an order for any appropriate addi-
25 tional relief.
26 § 5. Subdivision 11 of section 460-d of the social services law, as
27 amended by section 154 of subpart B of part C of chapter 62 of the laws
28 of 2011, is amended to read as follows:
29 11. On or before issuance by the department to an adult care facility
30 operator of official written notice of: the proposed revocation, suspen-
31 sion or denial of the operator's operating certificate; the limitation
32 of the operating certificate with respect to new admissions; the issu-
33 ance of a department order or commissioner's order; the seeking of equi-
34 table relief pursuant to this section; the [proposed] assessment of
35 civil penalties for violations of the provisions of [subparagraph two
36 of] paragraph [(b)] (c) of subdivision seven of this section or place-
37 ment on the "do not refer list" pursuant to subdivision fifteen of this
38 section, written notice also shall be given to the appropriate office of
39 the department of mental hygiene, department of corrections and communi-
40 ty supervision and local social services districts, and provided further
41 that the department of health shall notify hospitals, residential health
42 care facilities and adult care facilities in the locality in which such
43 facility is located that such notice has been issued. Upon resolution of
44 such enforcement action the department shall within ten days notify the
45 appropriate office of the department of mental hygiene, department of
46 corrections and community supervision, local social services districts
47 [and], hospitals, residential health care facilities and adult care
48 facilities.
49 § 6. Subdivision 12 of section 460-d of the social services law, as
50 amended by section 42 of part B of chapter 58 of the laws of 2004, is
51 amended to read as follows:
52 12. [Social] Hospitals, residential health care facilities, adult care
53 facilities, social services districts and other local government enti-
54 ties established pursuant to this chapter shall be prohibited from
55 making referrals for admissions to adult care facilities that have
56 received official written notice regarding: the proposed revocation,
A. 196 6
1 suspension or denial of the operator's operating certificate; the limi-
2 tation of the operating certificate with respect to new admissions; the
3 issuance of department order or commissioner's orders; the seeking of
4 equitable relief pursuant to this section[; the proposed assessment of
5 civil penalties for violations of the provisions of subparagraph two of
6 paragraph (b) of subdivision seven of this section]; or the facility's
7 placement on the "do not refer list" pursuant to subdivision fifteen of
8 this section.
9 § 7. Section 460-d of the social services law is amended by adding a
10 new subdivision 18 to read as follows:
11 18. When the department of health issues official written notice to an
12 operator of a proposed action specified in subdivision eleven of this
13 section, and the department determines that there is a condition which
14 constitutes an imminent danger to the health, safety or welfare of any
15 resident, the department may prohibit that operator from admitting any
16 new resident to the facility until the department determines that there
17 is no longer an imminent danger to the health, safety or welfare of any
18 resident.
19 § 8. Section 461-c of the social services law is amended by adding a
20 new subdivision 10 to read as follows:
21 10. The operator of an adult home or an enriched housing program shall
22 provide to prospective residents who inquire about admission, and shall
23 post on its website, a copy of the facility's approved
24 admission/residency agreement.
25 § 9. The closing paragraph of subdivision 3 of section 461-d of the
26 social services law, as added by chapter 601 of the laws of 1981, is
27 amended to read as follows:
28 Waiver of any provision [contained within] of this subdivision by a
29 resident of an adult care facility or by the resident's legal represen-
30 tative or resident representative, with respect to a resident of an
31 adult home, residence for adults or enriched housing program, shall be
32 void.
33 § 10. Section 461-e of the social services law is amended by adding a
34 new subdivision 3-a to read as follows:
35 3-a. Every adult home and enriched housing program shall:
36 (a) Post in a prominent position in the facility so as to be accessi-
37 ble to all residents and to the general public:
38 (i) a summary of any report of inspection based on a complaint issued
39 by the department of health to the facility within the previous year
40 which resulted in the payment of a fine or penalty by the facility; and
41 (ii) notice of residents' right to review reports under paragraph (b)
42 of this subdivision.
43 (b) Provide to any resident and each applicant for admission an oppor-
44 tunity to review any report of inspection based on a complaint issued by
45 the department of health to the facility within the previous year.
46 (c) Provide to the resident council a summary of any report of
47 inspection based on a complaint issued by the department of health with-
48 in fourteen days of receipt by the facility.
49 § 11. Paragraphs (a), (b) and (c) of subdivision 2 of section 461-a of
50 the social services law, paragraphs (a) and (c) as amended by chapter
51 735 of the laws of 1994 and paragraph (b) as amended by chapter 601 of
52 the laws of 1981, are amended to read as follows:
53 (a) With respect to adult care facilities the department shall conduct
54 a minimum of one unannounced inspection of each such facility to deter-
55 mine the adequacy of care being rendered, pursuant to the following:
A. 196 7
1 (1) Such facilities [receiving the department's highest rating] deter-
2 mined by the department to be in compliance or substantial compliance
3 with applicable statutes and regulations, based on the facility's most
4 recent inspection, shall be inspected at least once every eighteen
5 months on an unannounced basis.
6 (2) All other such facilities shall be inspected on an unannounced
7 basis no less than annually. The commissioner may provide for more
8 frequent inspections of any such facilities. Such inspection shall not
9 be required with respect to any facility for which the commissioner has
10 delegated responsibility for inspection and supervision to a social
11 services official pursuant to section four hundred sixty-c of this
12 [chapter] article. Any employee of the department or a social services
13 district who gives or causes to be given advance notice of such unan-
14 nounced inspections to any unauthorized persons shall, in addition to
15 any other penalty provided by law, be suspended by the department or the
16 social services district from all duties without pay for at least five
17 days or for such greater period of time as the department or social
18 services district shall determine. Any such suspension shall be made by
19 the department or social services district in accordance with all other
20 applicable provisions of law.
21 (b) [The department or a social services district, where appropriate,
22 shall each year conduct a minimum of one full inspection of each adult
23 care facility. Such inspection] An inspection of an adult care facility
24 under this section shall include, but shall not be limited to, examina-
25 tion of the medical, dietary and social services records of the facility
26 as well as the minimum standards of construction, life safety standards,
27 quality and adequacy of care, rights of residents, payments and all
28 other areas of operation. The purpose of any inspection shall be to
29 determine compliance with requirements of applicable provisions of law
30 and regulations of the department.
31 (c) (i) An inspection report shall be made of each inspection which
32 shall clearly identify and indicate in detail each area of operation,
33 including, but not limited to, the premises, equipment, personnel, resi-
34 dent care and services, and whether [each] any such area of operation or
35 any of its component parts is [or is] not in compliance with the regu-
36 lations of the department and all other applicable requirements. It also
37 shall identify those areas of operation or any of its component parts
38 found not in compliance as a result of failure in systemic practices and
39 procedures. The operator shall be notified of the results of the
40 inspection in a manner to be determined by regulations of the department
41 and shall submit a written plan of correction to the department within
42 thirty calendar days from the date the inspection report is received.
43 The department shall notify the operator of the acceptability of the
44 plan of correction within thirty calendar days of the department's
45 receipt of such plan. Such notification shall contain directions as may
46 be appropriate as to the manner and time in which compliance with appli-
47 cable requirements of law or regulations of the department shall be
48 effected.
49 (ii) The department shall also require the operator of an adult home,
50 enriched housing program or residence for adults to develop, biannually
51 update and implement plans for quality assurance activities for each
52 area of operation. Quality assurance activities include but are not
53 limited to, development and maintenance of performance standards, meas-
54 urement of adherence to such standards and to applicable state and local
55 laws and regulations, identification of performance failures, design,
56 and implementation of corrective action.
A. 196 8
1 § 12. Subparagraphs (I) and (II) of paragraph 2 of subdivision (i) of
2 section 29.15 of the mental hygiene law, as amended by chapter 168 of
3 the laws of 2010, are amended to read as follows:
4 (I) A patient about to be discharged or conditionally released from a
5 department facility licensed or operated by the office for people with
6 developmental disabilities or from an inpatient facility operated or
7 licensed by the office of [alcoholism and substance abuse] addiction
8 services and supports or the office of mental health to an adult home,
9 enriched housing program or residence for adults, as defined in section
10 two of the social services law, shall be referred only to such home or
11 residence that is consistent with that patient's needs and that operates
12 pursuant to section four hundred sixty of the social services law,
13 provided further that: (A) for a department facility licensed or oper-
14 ated by the office for people with developmental disabilities or for an
15 inpatient facility operated by the office of [alcoholism and substance
16 abuse] addiction services and supports or the office of mental health,
17 the facility director retains authority to determine whether the home,
18 program or residence is consistent with that patient's needs and (B)
19 such referral shall be made to the patient's home county whenever possi-
20 ble or appropriate.
21 (II) No patient about to be discharged or conditionally released from
22 a department facility licensed or operated by the office for people with
23 developmental disabilities or from an inpatient facility operated or
24 licensed by the office of [alcoholism and substance abuse] addiction
25 services and supports or the office of mental health shall be referred
26 to any adult home, enriched housing program or residence for adults, as
27 defined in section two of the social services law, which has received an
28 official written notice from the department of health of: (A) the
29 proposed revocation, suspension or denial of its operating certificate;
30 (B) the limitation of its operating certificate with respect to new
31 admissions; (C) the issuance of a department of health order or commis-
32 sioner of health's order or the seeking of equitable relief pursuant to
33 section four hundred sixty-d of the social services law; (D) the
34 proposed assessment of civil penalties for violations of the provisions
35 of [subparagraph two of] paragraph [(b)] (c) of subdivision seven of
36 section four hundred sixty-d of the social services law; or placement on
37 the "do not refer list" pursuant to subdivision fifteen of section four
38 hundred sixty-d of the social services law. Referrals may resume when
39 such enforcement actions are resolved.
40 § 13. Severability clause. If any provision of this act, or any appli-
41 cation of any provision of this act, is held to be invalid, or to
42 violate or be inconsistent with any federal law or regulation, that
43 shall not affect the validity or effectiveness of any other provision of
44 this act, which can be given effect without that provision or applica-
45 tion; and to that end, the provisions and applications of this act are
46 severable.
47 § 14. This act shall take effect on the ninetieth day after it shall
48 have become a law. Effective immediately, the commissioner of health
49 shall make regulations and take other actions necessary to implement
50 this act on that date.
