S T A T E O F N E W Y O R K
________________________________________________________________________
5908
2019-2020 Regular Sessions
I N S E N A T E
May 16, 2019
___________
Introduced by Sen. RIVERA -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to enhancing trans-
parency and oversight of residential health care facilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 2803-d of the public health law, as amended by
chapter 340 of the laws of 1980, subdivision 1 as amended by chapter 230
of the laws of 2004, paragraph (c) of subdivision 6 as amended by chap-
ter 414 of the laws of 1986, paragraph (d) of subdivision 6 as amended
by chapter 622 of the laws of 1980 and paragraph (g) of subdivision 6 as
amended by chapter 717 of the laws of 1989, is amended to read as
follows:
§ 2803-d. Reporting abuses of persons receiving care or services in
residential health care facilities. 1. The following persons are
required to report in accordance with this section when they have
reasonable cause to believe that a person receiving care or services in
a residential health care facility has been [physically] abused,
mistreated [or], neglected OR SUBJECTED TO THE MISAPPROPRIATION OF PROP-
ERTY by other than a person receiving care or services in the facility:
any operator or employee of such facility, [any person who,] or employee
of any corporation, partnership, organization or other entity which, AND
ANY OTHER PERSON WHO, is under contract [to provide patient care
services in] WITH such facility, and any nursing home administrator,
physician, medical examiner, coroner, physician's associate, special-
ist's assistant, osteopath, chiropractor, physical therapist, occupa-
tional therapist, registered professional nurse, licensed practical
nurse, dentist, podiatrist, optometrist, pharmacist, psychologist,
licensed master social worker, licensed clinical social worker, speech
pathologist and audiologist.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07386-04-9
S. 5908 2
2. In addition to those persons required to report suspected [phys-
ical] abuse, mistreatment [or], neglect OR MISAPPROPRIATION OF THE PROP-
ERTY of persons receiving care or services in residential health care
facilities, any other person may make such a report if he or she has
reasonable cause to believe that a person receiving care or services has
been [physically] abused, mistreated [or], neglected OR SUBJECTED TO THE
MISAPPROPRIATION OF PROPERTY in the facility.
3. Reports of suspected [physical] abuse, mistreatment [or], neglect
OR THE MISAPPROPRIATION OF PROPERTY made pursuant to this section shall
be made immediately by telephone and in writing within forty-eight hours
to the department. THE DEPARTMENT SHALL PROVIDE FORMS, WHICH SHALL BE
AVAILABLE TO BE DOWNLOADED FROM THE DEPARTMENT'S WEBSITE, WHICH MAY BE,
BUT ARE NOT REQUIRED TO BE, USED FOR MAKING THE WRITTEN REPORTS. Written
reports shall [be made on forms supplied by the commissioner and shall]
include the following information: the identity of the person making the
report and where he can be found; the name and address of the residen-
tial health care facility; the names of the operator and administrator
of the facility, if known; the name of the subject of the alleged [phys-
ical] abuse, mistreatment [or], neglect OR MISAPPROPRIATION OF PROPERTY,
if known; the nature and extent of the [physical] abuse, mistreatment
[or], neglect OR MISAPPROPRIATION OF PROPERTY; the date, time and
specific location of the occurrence; the names of next of kin or spon-
sors of the subject of the alleged [physical] abuse, mistreatment [or],
neglect OR MISAPPROPRIATION OF PROPERTY, if known; and any other infor-
mation which the person making the report believes would be helpful to
further the purposes of this section. Such written reports shall be
admissible in evidence, consistent with the provisions of paragraph (f)
of subdivision six of this section, in any actions or proceedings relat-
ing to [physical] abuse, mistreatment [or], neglect OR MISAPPROPRIATION
OF PROPERTY of persons receiving care or services in residential health
care facilities. Written reports made other than on forms supplied by
the commissioner which contain the information required herein shall be
treated as if made on such forms.
4. Any person who in good faith makes a report pursuant to this
section shall have immunity from any liability, civil or criminal, for
having made such a report. For the purpose of any proceeding, civil or
criminal, the good faith of any person required to report instances of
[physical] abuse, mistreatment [or], neglect OR MISAPPROPRIATION OF
PROPERTY of persons receiving care or services in residential health
care facilities shall be presumed.
5. Notwithstanding the provisions of section two hundred thirty of
this chapter, any licensed person who commits an act of [physical]
abuse, mistreatment [or], neglect OR MISAPPROPRIATION OF PROPERTY of a
person receiving care or services in a residential health care facility
and any licensed person required by this section to report an instance
of suspected [physical] abuse, mistreatment [or], neglect OR MISAPPRO-
PRIATION OF PROPERTY of a person receiving care or services in a resi-
dential health care facility who fails to do so shall be guilty of
unprofessional conduct in the practice of his or her profession.
6. (a) Upon receipt of a report made pursuant to this section, the
commissioner shall cause an investigation to be made of the allegations
contained in the report. Notification of the receipt of a report shall
be made immediately by the department to the appropriate district attor-
ney if a prior request in writing has been made to the department by the
district attorney. AT ANY TIME, IF THE DEPARTMENT DETERMINES THAT THERE
IS A REASONABLE BELIEF THAT A REPORTED ALLEGATION MAY CONSTITUTE A CRIME
S. 5908 3
UNDER THE LAWS OF THE STATE OF NEW YORK OR THE UNITED STATES, THE
DEPARTMENT SHALL NOTIFY THE APPROPRIATE LAW ENFORCEMENT OFFICIAL OR
AUTHORITY. Prior to the completion of the investigation by the depart-
ment, [every] reasonable effort shall be made to notify, personally or
by certified mail, any person under investigation for having committed
an act of [physical] abuse, mistreatment [or], neglect OR MISAPPROPRI-
ATION OF PROPERTY. The commissioner shall make a written determination,
based on the findings of the investigation, of whether or not sufficient
credible evidence exists to sustain the allegations contained in the
report or would support a conclusion that a person not named in such
report has committed an act of [physical] abuse, neglect [or], mistreat-
ment OR MISAPPROPRIATION OF PROPERTY. A copy of such written determi-
nation, together with a notice of the right to a hearing as provided in
this subdivision, shall be sent by registered or certified mail to each
person who the commissioner has determined has committed an act of
[physical] abuse, neglect [or], mistreatment OR MISAPPROPRIATION OF
PROPERTY. A letter shall be sent to any other person alleged in such
report to have committed such an act stating that a determination has
been made that there is not sufficient evidence to sustain the allega-
tions relating to such person. A copy of each such determination and
letter shall be sent to the facility in which the alleged incident
occurred.
(b) The commissioner may make a written determination, based on the
findings of the investigation, that sufficient credible evidence exists
to support a conclusion that a person required by this section to report
suspected [physical] abuse, mistreatment [or], neglect OR MISAPPROPRI-
ATION OF PROPERTY had reasonable cause to believe that such an incident
occurred and failed to report such incident. A copy of such written
determination, together with a notice of the right to a hearing as
provided in this subdivision, shall be sent by registered or certified
mail to each person who the commissioner has determined has failed to
report as required by this section.
(c) All information relating to any allegation which the commissioner
has determined would not be sustained shall be [expunged] SEALED one
hundred twenty days following notification of such determination to the
person who made the report pursuant to this section, unless a proceeding
pertaining to such allegation is pending pursuant to article seventy-
eight of the civil practice law and rules. Whenever information is
[expunged] SEALED, the commissioner shall notify any official notified
pursuant to paragraph (a) of this subdivision that the information has
been [expunged] SEALED.
(d) At any time within thirty days of the receipt of a copy of a
determination made pursuant to this section, a person named in such
determination as having committed an act of [physical] abuse, neglect
[or], mistreatment OR MISAPPROPRIATION OF PROPERTY, or as having failed
to report such an incident, may request in writing that the commissioner
amend or [expunge] SEAL the record of such report, to the extent such
report applies to such person, or such written determination. If the
commissioner does not comply with such request within thirty days, such
person shall have the right to a fair hearing to determine whether the
record of the report or the written determination should be amended or
[expunged] SEALED on the grounds that the record is inaccurate or the
determination is not supported by the evidence. The burden of proof in
such hearing shall be on the department. Whenever information is
[expunged] SEALED, the commissioner shall notify any official notified
S. 5908 4
pursuant to paragraph (a) of this subdivision that the information has
been [expunged] SEALED.
(e) Except as hereinafter provided, any report, record of the investi-
gation of such report and all other information related to such report
shall be confidential and shall be exempt from disclosure under article
six of the public officers law.
(f) Information relating to a report made pursuant to this section
shall be disclosed under any of the following conditions:
(i) pursuant to article six of the public officers law after [expunge-
ment] SEALING or amendment, if any, is made in accordance with a hearing
conducted pursuant to this section, or at least forty-five days after a
written determination is made by the commissioner concerning such
report, whichever is later; provided, however, that the identity of the
person who made the report, the victim, or any other person named,
except a person who the commissioner has determined committed an act of
[physical] abuse, neglect [or], mistreatment OR MISAPPROPRIATION OF
PROPERTY, shall not be disclosed unless such person authorizes such
disclosure;
(ii) as may be required by the penal law or any lawful order or
warrant issued pursuant to the criminal procedure law; or
(iii) to a person who has requested a hearing pursuant to this
section, information relating to the determination upon which the hear-
ing is to be conducted; provided, however, that the identity of the
person who made the report or any other person who provided information
in an investigation of the report shall not be disclosed unless such
person authorizes such disclosure.
(g) Where appropriate, the commissioner shall report instances of
[physical] abuse, mistreatment [or], neglect OR MISAPPROPRIATION OF
PROPERTY or the failure to report as required by this section, to the
appropriate committee on professional conduct for the professions
enumerated in subdivision one of this section when a determination has
been made after the commissioner has provided an opportunity to be
heard. The commissioner shall report instances of [physical] abuse,
mistreatment, neglect [or], misappropriation of [resident] property by a
nurse aide or other unlicensed individual and any brief statement by the
nurse aide or other unlicensed individual disputing the finding to the
nursing home nurse aide registry established pursuant to section twen-
ty-eight hundred three-j of this article when a determination has been
made after the commissioner has provided an opportunity to be heard.
7. In addition to any other penalties prescribed by law, any person
who commits an act of [physical] abuse, neglect [or], mistreatment OR
MISAPPROPRIATION OF PROPERTY, or who fails to report such an act as
provided in this section, shall be deemed to have violated this section
and shall be liable for a penalty pursuant to section twelve of this
chapter after an opportunity to be heard pursuant to this section.
8. No residential health care facility or officer or employee thereof
shall discharge or in any manner discriminate or retaliate against any
person in any residential health care facility, or any relative, or
sponsor thereof, or against any employee of the facility, or against any
other person because such person, relative, legal representative, spon-
sor or employee has made, or is about to make, a report pursuant to this
section, or has testified, or is about to testify, in any proceeding
relating to [physical] abuse, mistreatment [or], neglect OR MISAPPROPRI-
ATION OF PROPERTY of a person receiving care or services in a residen-
tial health care facility. The supreme court may grant injunctive
relief to any person subject to such retaliation or discrimination. Any
S. 5908 5
violation of this subdivision shall be punishable pursuant to section
twelve of this chapter.
9. No later than March fifteenth of every year the commissioner shall
prepare and transmit to the governor and the legislature a report on the
incidents of [physical] abuse, mistreatment [and], neglect AND MISAPPRO-
PRIATION OF PROPERTY of persons receiving care or services in residen-
tial health care facilities. No INDIVIDUAL IDENTIFYING information
concerning any individual [or facility] SUBJECTED TO ABUSE, MISTREAT-
MENT, NEGLECT OR MISAPPROPRIATION OF PROPERTY shall be disclosed in a
report made pursuant to this subdivision, or in any other report, except
information which would be available pursuant to article six of the
public officers law as provided in this section. Nothing in this section
shall be construed to prohibit the maintenance or disclosure of, or
require the [expungement] SEALING of, statistical data which would not
reveal the identity of any person [or facility].
10. An investigation shall be made of each incident reported pursuant
to this section[, but only the provisions of paragraphs (e) and (f) of
subdivision six, and subdivisions two, four, eight and nine shall apply
to physical abuse by persons receiving care or services in residential
health care facilities].
11. The commissioner shall adopt [rules and] regulations necessary to
implement this section.
§ 2. The public health law is amended by adding a new section 2803-w
to read as follows:
§ 2803-W. INDEPENDENT QUALITY MONITORS FOR RESIDENTIAL HEALTH CARE
FACILITIES. THE DEPARTMENT MAY REQUIRE A RESIDENTIAL HEALTH CARE FACILI-
TY TO CONTRACT WITH AN INDEPENDENT QUALITY MONITOR SELECTED, AND ON
REASONABLE TERMS DETERMINED, BY THE DEPARTMENT, PURSUANT TO A SELECTION
PROCESS CONDUCTED NOTWITHSTANDING SECTIONS ONE HUNDRED TWELVE OR ONE
HUNDRED SIXTY-THREE OF THE STATE FINANCE LAW, FOR PURPOSES OF MONITORING
THE OPERATOR'S COMPLIANCE WITH A WRITTEN AND MANDATORY CORRECTIVE PLAN
AND REPORTING TO THE DEPARTMENT ON THE IMPLEMENTATION OF SUCH CORRECTIVE
ACTION, WHEN THE DEPARTMENT HAS DETERMINED IN ITS DISCRETION THAT OPERA-
TIONAL DEFICIENCIES EXIST AT SUCH FACILITY THAT SHOW:
1. A CONDITION OR CONDITIONS IN SUBSTANTIAL VIOLATION OF THE STANDARDS
FOR HEALTH, SAFETY, OR RESIDENT CARE ESTABLISHED IN LAW OR REGULATION
THAT CONSTITUTE A DANGER TO RESIDENT HEALTH OR SAFETY;
2. A PATTERN OR PRACTICE OF HABITUAL VIOLATION OF THE STANDARDS OF
HEALTH, SAFETY, OR RESIDENT CARE ESTABLISHED IN LAW OR REGULATION; OR
3. ANY OTHER CONDITION DANGEROUS TO RESIDENT LIFE, HEALTH, OR SAFETY.
SUCH WRITTEN MANDATORY CORRECTIVE PLANS SHALL INCLUDE CAPS ON ADMINIS-
TRATIVE AND GENERAL COSTS THAT ARE UNRELATED TO PROVIDING DIRECT CARE
(INCLUDING PROVIDING AT LEAST MINIMUM STAFFING LEVELS AS DETERMINED BY
THE DEPARTMENT) OR CARE COORDINATION.
§ 3. The public health law is amended by adding a new section 2803-x
to read as follows:
§ 2803-X. REQUIREMENTS RELATED TO RESIDENTIAL HEALTH CARE FACILITIES
AND RELATED ASSETS. 1. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILI-
TY SHALL NOTIFY THE COMMISSIONER OF ANY COMMON OR FAMILIAL OWNERSHIP OF
ANY CORPORATION, OTHER ENTITY OR INDIVIDUAL PROVIDING SERVICES TO THE
OPERATOR OR THE FACILITY.
2. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILITY SHALL, ON AN
ANNUAL BASIS, ATTEST TO THE DEPARTMENT, IN A FORM DETERMINED BY THE
DEPARTMENT, TO THE ACCURACY OF THE INFORMATION PROVIDED TO THE DEPART-
MENT UNDER THIS SECTION.
S. 5908 6
3. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILITY MAY NOT ENTER
INTO ANY ARRANGEMENT TO GUARANTEE THE DEBT OR OTHER OBLIGATION OF A
PARTY WHICH HAS NOT RECEIVED ESTABLISHMENT APPROVAL.
4. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILITY SHALL NOTIFY THE
DEPARTMENT AT LEAST NINETY DAYS PRIOR TO EXECUTING A LETTER OF INTENT OR
OTHER CONTRACTUAL AGREEMENT RELATED TO THE SALE, MORTGAGING, ENCUM-
BRANCE, OR OTHER DISPOSITION OF THE REAL PROPERTY OF THE FACILITY.
5. IN ANY INSTANCE WHERE A RESIDENTIAL HEALTH CARE FACILITY IS SOLD OR
OTHERWISE TRANSFERRED AND USED FOR A PURPOSE WHICH IS NOT A HEALTH CARE
PURPOSE, THE OPERATOR SHALL REMIT TO THE DEPARTMENT AN AMOUNT EQUIVALENT
TO THE UNDEPRECIATED VALUE OF CAPITAL ASSETS FOR WHICH THE PROVIDER HAS
BEEN FUNDED OR REIMBURSED THROUGH MEDICAID RATE ADJUSTMENTS OR OTHERWISE
FUNDED OR REIMBURSED WITH RESOURCES PROVIDED BY THE STATE FOR THE
PURPOSE OF IMPROVEMENT OR TRANSFORMATION.
§ 4. The public health law is amended by adding a new section 2803-y
to read as follows:
§ 2803-Y. PROVISION OF RESIDENCY AGREEMENT. THE OPERATOR OF A RESI-
DENTIAL HEALTH CARE FACILITY SHALL PROVIDE TO PROSPECTIVE RESIDENTS WHO
INQUIRE ABOUT ADMISSION, AND POST ON ITS WEBSITE, A COPY OF THE FACILI-
TY'S ENTIRE APPROVED RESIDENCY AGREEMENT, INCLUDING THE NON-GOVERNMENTAL
RATES CHARGED TO RESIDENTS.
§ 5. Severability clause. If any provision of this act, or any appli-
cation of any provision of this act, is held to be invalid, or to
violate or be inconsistent with any federal law or regulation, that
shall not affect the validity or effectiveness of any other provision of
this act, which can be given effect without that provision or applica-
tion; and to that end, the provisions and applications of this act are
severable.
§ 6. This act shall take effect on the one hundred twentieth day after
it shall have become a law. Effective immediately, the commissioner of
health shall make regulations and take other actions necessary to imple-
ment this act on that date.
