S T A T E O F N E W Y O R K
________________________________________________________________________
5684
2021-2022 Regular Sessions
I N A S S E M B L Y
February 23, 2021
___________
Introduced by M. of A. GOTTFRIED, GALEF, CLARK, TAYLOR, PAULIN, ABINAN-
TI, BICHOTTE HERMELYN, McDONALD, HEVESI, BRONSON, WALLACE, STECK,
DINOWITZ, THIELE, PERRY -- read once and referred to the Committee on
Health
AN ACT to amend the public health law, in relation to requirements for
residential health care facilities and nursing homes
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 2801 of the public health law, as
amended by chapter 955 of the laws of 1969, is amended to read as
follows:
2. "Nursing home" means A RESIDENTIAL HEALTH CARE FACILITY, a facility
providing therein nursing care to sick, invalid, infirm, disabled or
convalescent persons in addition to lodging and board or health-related
service, or any combination of the foregoing, and in addition thereto,
providing nursing care and health-related service, or either of them, to
persons who are not occupants of the facility.
§ 2. Section 2801-a of the public health law is amended by adding two
new subdivisions 2-b and 3-b to read as follows:
2-B. (A) THIS SUBDIVISION APPLIES WITH RESPECT TO AN APPLICATION UNDER
THIS SECTION RELATING TO THE INCORPORATION OR ESTABLISHMENT OF ANY NURS-
ING HOME, IN ADDITION TO SUBDIVISION TWO OF THIS SECTION.
(B) THE COUNCIL SHALL PROVIDE NOTICE OF THE APPLICATION TO THE PUBLIC
ON THE DEPARTMENT'S WEBSITE WITHIN THIRTY DAYS OF RECEIPT OF IT AND
PROVIDE IT TO THE STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN AND THE
REGIONAL OFFICE HAVING GEOGRAPHICAL JURISDICTION OF THE AREA WHERE THE
NURSING HOME IS TO BE OR IS LOCATED. IN THE CASE OF AN APPLICATION
RELATING TO AN EXISTING NURSING HOME, THE NOTICE SHALL ALSO BE PROVIDED
IN WRITING OR ELECTRONICALLY TO RESIDENTS OF THE NURSING HOME AND THEIR
REPRESENTATIVES, AND THE STAFF OF THE NURSING HOME AND THEIR REPRESEN-
TATIVES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07696-03-1
A. 5684 2
(C) THE COUNCIL SHALL PROVIDE A MECHANISM FOR SUBMITTING WRITTEN
COMMENTS ELECTRONICALLY ON THE APPLICATION TO THE COUNCIL; AND PROVIDE
AT LEAST NINETY DAYS FOR THE COMMENT PERIOD. THE TERMS OF THE WRITTEN
COMMENT PROCESS SHALL BE INCLUDED IN THE NOTICE UNDER PARAGRAPH (A) OF
THIS SUBDIVISION.
(D) THE COUNCIL SHALL FORWARD A COPY OF THE APPLICATION, AND ACCOMPA-
NYING DOCUMENTS, TO THE STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN AND
THE REGIONAL OFFICE HAVING GEOGRAPHICAL JURISDICTION OF THE AREA WHERE
THE NURSING HOME IS OR IS TO BE LOCATED WITHIN THIRTY DAYS OF RECEIPT OF
THE APPLICATION. THE COUNCIL SHALL NOT ACT UPON SUCH APPLICATION UNTIL
AFTER THE STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN, REGIONAL OFFICE
AND THE PARTIES ENTITLED TO NOTICE HAVE HAD A REASONABLE TIME, BUT NOT
LESS THAN NINETY DAYS, TO SUBMIT THEIR RECOMMENDATIONS. AT THE TIME
MEMBERS OF THE COUNCIL ARE NOTIFIED THAT AN APPLICATION IS SCHEDULED FOR
CONSIDERATION, THE APPLICANT, AND THE PARTIES ENTITLED TO THE NOTICE
UNDER PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE SO NOTIFIED IN WRITING
OR ELECTRONICALLY. THE COUNCIL SHALL AFFORD THE APPLICANT AN OPPORTUNITY
TO PRESENT INFORMATION IN PERSON CONCERNING THE APPLICATION TO A COMMIT-
TEE DESIGNATED BY THE COUNCIL. THE COUNCIL SHALL NOT TAKE ANY ACTION
CONTRARY TO THE ADVICE OF THE STATE OFFICE OF THE LONG-TERM CARE OMBUDS-
MAN OR THE REGIONAL OFFICE UNTIL IT AFFORDS THE STATE OR REGIONAL OFFICE
AN OPPORTUNITY TO REQUEST A PUBLIC HEARING AND, IF SO REQUESTED, THE
PUBLIC HEARING IS HELD. IF THE COUNCIL PROPOSES TO DISAPPROVE THE APPLI-
CATION IT SHALL AFFORD THE APPLICANT AN OPPORTUNITY TO REQUEST AND
TESTIFY AT A PUBLIC HEARING. THE COUNCIL MAY HOLD A PUBLIC HEARING ON
THE APPLICATION ON ITS OWN MOTION OR UPON THE WRITTEN REQUEST OF ANY
PERSON.
(E) WHERE THIS SUBDIVISION IS INCONSISTENT WITH SUBDIVISION TWO OF
THIS SECTION, THIS SUBDIVISION SHALL PREVAIL.
3-B. (A) THIS SUBDIVISION APPLIES TO AN APPLICATION UNDER THIS SECTION
RELATING TO A NURSING HOME, AND APPLIES IN ADDITION TO SUBDIVISION THREE
OF THIS SECTION.
(B) THE APPLICATION SHALL PROVIDE INFORMATION AS TO THE CHARACTER,
COMPETENCE AND STANDING IN THE COMMUNITY OF EVERY PRESENT OR PROPOSED
CONTROLLING PERSON, PRINCIPAL STOCKHOLDER OR PRINCIPAL MEMBER OF THE
APPLICANT, THE IDENTITY OF EVERY NURSING HOME IN WHICH EACH OF THOSE
INDIVIDUALS OR ENTITIES IS, OR IN THE PRECEDING FIVE YEARS HAS BEEN, A
CONTROLLING PERSON, PRINCIPAL STOCKHOLDER OR PRINCIPAL MEMBER; AND THE
NATURE OF THAT INTEREST. THE COUNCIL SHALL NOT APPROVE THE APPLICATION
UNLESS IT FINDS THAT EACH OF THOSE INDIVIDUALS AND ENTITIES, IN RELATION
TO EACH SUCH NURSING HOME, FOR AT LEAST THE PREVIOUS THREE YEARS, DEMON-
STRATED SATISFACTORY CHARACTER, COMPETENCE AND STANDING IN THE COMMUNITY
AND THE NURSING HOME PROVIDED A CONSISTENTLY HIGH LEVEL OF CARE. THE
COUNCIL SHALL ADOPT RULES AND REGULATIONS, SUBJECT TO THE APPROVAL OF
THE COMMISSIONER, TO ESTABLISH THE CRITERIA TO BE USED TO DETERMINE
WHETHER A CONSISTENTLY HIGH LEVEL OF CARE HAS OR HAS NOT BEEN RENDERED
BY AN APPLICANT WHERE ONE OR MORE CONTROLLING PERSONS, PRINCIPAL STOCK-
HOLDERS OR PRINCIPAL MEMBERS OF THE APPLICANT IS A CONTROLLING PERSON,
PRINCIPAL STOCKHOLDER OR PRINCIPAL MEMBER OF A NURSING HOME LOCATED IN
THE UNITED STATES. THE COUNCIL SHALL NOT CONSIDER THAT A CONSISTENTLY
HIGH LEVEL OF CARE HAS BEEN DELIVERED AT A FACILITY IN THE UNITED STATES
THAT HAS ON AVERAGE FOR ANY OF THE FOUR MOST RECENT QUARTERS, THREE
HOURS OR LESS TOTAL DIRECT CARE STAFF TIME PER RESIDENT PER DAY OR LESS
THAN ONE-HALF HOUR PER RESIDENT PER DAY REGISTERED NURSE STAFFING, AS
PUBLISHED BY THE CENTER FOR MEDICARE AND MEDICAID SERVICES IN THE FEDER-
AL CENTER FOR MEDICARE AND MEDICAID SERVICES' (CMS) PAYROLL BASED JOUR-
A. 5684 3
NAL DATA OR WHERE THERE HAVE BEEN VIOLATIONS OF THE STATE OR FEDERAL
NURSING HOME CODE, OR OTHER APPLICABLE RULES AND REGULATIONS, THAT
THREATENED TO DIRECTLY AFFECT THE HEALTH, SAFETY OR WELFARE OF ANY
PATIENT OR RESIDENT, INCLUDING BUT NOT LIMITED TO A FINDING OF IMMEDIATE
JEOPARDY, OR ACTUAL HARM, AND WERE RECURRENT OR WERE NOT PROMPTLY
CORRECTED, INCLUDING BUT NOT LIMITED TO REPEAT DEFICIENCIES FOR THE SAME
OR SIMILAR VIOLATIONS OVER A THREE YEAR PERIOD OR DURING THE ENTIRE
DURATION OF OWNERSHIP IF LESS THAN THREE YEARS, OR ANY FACILITY WHICH
HAS BEEN IN RECEIVERSHIP; CLOSED AS A RESULT OF A SETTLEMENT AGREEMENT
FROM A DECERTIFICATION ACTION OR LICENSURE REVOCATION; OR HAS BEEN
INVOLUNTARILY TERMINATED FROM THE MEDICARE OR MEDICAID PROGRAM IN THE
PRIOR FIVE YEARS, PROVIDED HOWEVER, THAT WHERE AN APPLICANT HAS TAKEN
OVER A FACILITY AND PROMPTLY CORRECTED SUCH DEFICIENCIES, THE COUNCIL
MAY CONSIDER THE APPLICATION.
(C) WHERE THIS SUBDIVISION IS INCONSISTENT WITH SUBDIVISION THREE OF
THIS SECTION, THIS SUBDIVISION SHALL PREVAIL.
§ 3. Section 2803-x of the public health law, as added by chapter 677
of the laws of 2019, is amended to read as follows:
§ 2803-x. Requirements related to [residential health care facilities]
NURSING HOMES and related assets AND OPERATIONS. 1. The operator of a
[residential health care facility] NURSING HOME shall notify the commis-
sioner of any common or familial ownership of any corporation, other
entity or individual providing services to the operator or the facility.
SUCH INFORMATION SHALL ALSO BE INCLUDED IN THE RESIDENCY AGREEMENT FOR
PROSPECTIVE RESIDENTS AND AS ADDENDUMS FOR RESIDENTS CURRENTLY RESIDING
IN THE RESIDENTIAL HEALTH CARE FACILITY NURSING HOME. THE OPERATOR SHALL
NOTIFY THE DEPARTMENT AT LEAST NINETY DAYS PRIOR TO ENTERING INTO ANY
NEW COMMON OR FAMILIAL OWNERSHIP OF ANY CORPORATION, OR OTHER ENTITY OR
INDIVIDUAL PROVIDING SERVICES TO THE OPERATOR OF THE FACILITY. THE OPER-
ATOR SHALL ALSO PROVIDE NOTIFICATION TO ALL RESIDENTS AND THEIR REPRE-
SENTATIVES, STAFF AND THEIR REPRESENTATIVES, AND THE STATE OFFICE OF THE
LONG-TERM CARE OMBUDSMAN.
2. The operator of a [residential health care facility] NURSING HOME
shall, on an annual basis, attest to the department, in a form deter-
mined by the department, to the accuracy of the information provided to
the department under this section.
3. The operator of a [residential health care facility] NURSING HOME
may not enter into any arrangement to guarantee the debt or other obli-
gation of a party which has not received establishment approval.
4. The operator of a [residential health care facility] NURSING HOME
shall notify the department at least ninety days prior to executing a
letter of intent or other contractual agreement related to:
A. the sale, mortgaging, encumbrance, or other disposition of the real
property of the facility; AND
B. THE MANAGEMENT, OPERATIONS, STAFFING AGENCY OR OTHER ENTITY TO BE
INVOLVED IN THE OPERATIONS OF THE FACILITY.
5. THE DEPARTMENT, SHALL, WITHIN TEN DAYS AFTER RECEIPT OF A NOTIFICA-
TION REQUIRED UNDER SUBDIVISION FOUR OF THIS SECTION, NOTIFY THE STATE
OFFICE OF THE LONG-TERM CARE OMBUDSMAN OF AN OPERATOR OF NURSING HOME'S
INTENT TO EXECUTE A BINDING LETTER OF INTENT OR OTHER CONTRACTUAL AGREE-
MENT RELATED TO:
A. THE SALE, MORTGAGING, ENCUMBRANCE, OR OTHER DISPOSITION OF THE REAL
PROPERTY OF THE FACILITY; AND
B. THE MANAGEMENT, OPERATIONS, STAFFING AGENCY OR OTHER ENTITY TO BE
INVOLVED IN THE OPERATIONS OF THE FACILITY.
A. 5684 4
6. THE OPERATOR OF A NURSING HOME SHALL NOTIFY ALL RESIDENTS AND THEIR
REPRESENTATIVES, STAFF AND THEIR REPRESENTATIVES, AND THE STATE OFFICE
OF THE LONG-TERM CARE OMBUDSMAN WITHIN FIVE DAYS OF EXECUTING A BINDING
LETTER OF INTENT OR OTHER CONTRACTUAL AGREEMENT AS DESCRIBED IN PARA-
GRAPHS A AND B OF SUBDIVISION FOUR OF THIS SECTION.
7. THE OPERATOR OF A NURSING HOME SHALL BE RESPONSIBLE AND LIABLE FOR
THE OPERATION OF THE NURSING HOME, REGARDLESS OF ANY CONTRACT, AGREEMENT
OR ARRANGEMENT PROVIDING FOR ANY PARTY TO CARRY OUT, OR PURPORTING TO
DELEGATE, ANY ACTIVITY OR RESPONSIBILITY RELATING TO THE NURSING HOME.
8. ANY NEW OWNER, OPERATOR OR MANAGEMENT COMPANY OF A NURSING HOME
SHALL RETAIN ALL EMPLOYEES OF THE NURSING HOME FOR AT LEAST A SIXTY-DAY
TRANSITION PERIOD, EXCEPT FOR THE NURSING HOME ADMINISTRATOR AND THE
DIRECTOR OF NURSING, OR ANY CONTROLLING PERSON, PRINCIPAL STOCKHOLDER OR
PRINCIPAL MEMBER, AND SHALL NOT REDUCE THE WAGES OR BENEFITS, OR MODIFY
ANY OTHER TERMS AND CONDITIONS OF EMPLOYMENT, ECONOMIC OR OTHERWISE
DURING THE TRANSITION PERIOD, AND EXCEPT FOR CAUSE.
9. In any instance where a [residential health care facility] NURSING
HOME 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 adjust-
ments or otherwise funded or reimbursed with resources provided by the
state for the purpose of improvement or transformation.
§ 4. This act shall take effect immediately.