S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3060
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 27, 2021
                                ___________
 
 Introduced  by  Sens.  RIVERA,  MAY,  SKOUFIS  -- 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  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.  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. WITH RESPECT TO THE INCORPORATION OR ESTABLISHMENT OF ANY NURSING
 HOME,  IN  ADDITION  TO THE REQUIREMENTS SET FORTH IN SUBDIVISION TWO OF
 THIS SECTION, AFTER THE FILING OF AN APPLICATION THE PUBLIC  HEALTH  AND
 HEALTH  PLANNING COUNCIL SHALL (A) PROVIDE NOTICE TO THE PUBLIC, NURSING
 HOMES RESIDENTS AND THEIR REPRESENTATIVES,  STAFF  AND  THEIR  REPRESEN-
 TATIVES,  AND  THE  STATE OFFICE OF THE LONG-TERM CARE OMBUDSMAN AND THE
 REGIONAL OFFICE HAVING GEOGRAPHICAL JURISDICTION OF THE AREA  WHERE  THE
 PROPOSED  INSTITUTION  IS  TO  BE LOCATED OF THE PROPOSED CERTIFICATE OR
 APPLICATION ON THE DEPARTMENT'S WEBSITE WITHIN THIRTY DAYS  OF  RECEIPT;
 PROVIDE  A  MECHANISM  TO  SUBMIT WRITTEN COMMENTS ELECTRONICALLY ON THE
 PROPOSED CERTIFICATE OR APPLICATION TO  THE  PUBLIC  HEALTH  AND  HEALTH
 PLANNING  COUNCIL;  AND  PROVIDE  AT  LEAST NINETY DAYS FOR SUCH COMMENT
 PERIOD, AND (B) FORWARD A COPY OF THE PROPOSED CERTIFICATE  OR  APPLICA-
 TION  FOR ESTABLISHMENT, AND ACCOMPANYING DOCUMENTS, TO THE STATE OFFICE
 OF THE LONG-TERM CARE OMBUDSMAN AND THE REGIONAL OFFICE HAVING GEOGRAPH-
 ICAL JURISDICTION OF THE AREA WHERE THE PROPOSED INSTITUTION  IS  TO  BE
 LOCATED  WITHIN  THIRTY  DAYS  OF  RECEIPT. THE PUBLIC HEALTH AND HEALTH
 PLANNING COUNCIL SHALL ACT UPON SUCH APPLICATION AFTER THE STATE  OFFICE
 OF THE LONG-TERM CARE OMBUDSMAN, REGIONAL OFFICE AND THE PUBLIC HAVE HAD
 A REASONABLE TIME, BUT NOT LESS THAN NINETY DAYS, TO SUBMIT THEIR RECOM-
 MENDATIONS. AT THE TIME MEMBERS OF THE PUBLIC HEALTH AND HEALTH PLANNING
 COUNCIL ARE NOTIFIED THAT AN APPLICATION IS SCHEDULED FOR CONSIDERATION,
 THE  APPLICANT,  THE  PUBLIC,  THE  STATE  OFFICE  OF THE LONG-TERM CARE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07696-01-1

 S. 3060                             2
 
 OMBUDSMAN AND THE REGIONAL OFFICES, SHALL  BE  SO  NOTIFIED  IN  WRITING
 WHICH  MAY  BE  THROUGH  ELECTRONIC  MEANS. THE PUBLIC HEALTH AND HEALTH
 PLANNING COUNCIL SHALL AFFORD THE APPLICANT AN  OPPORTUNITY  TO  PRESENT
 INFORMATION  IN  PERSON CONCERNING THE APPLICATION TO A COMMITTEE DESIG-
 NATED BY THE COUNCIL. THE PUBLIC  HEALTH  AND  HEALTH  PLANNING  COUNCIL
 SHALL  NOT  TAKE  ANY  ACTION  CONTRARY TO THE ADVICE OF THE PUBLIC, THE
 STATE OFFICE OF THE LONG-TERM CARE  OMBUDSMAN  OR  THE  REGIONAL  OFFICE
 UNTIL  IT AFFORDS SUCH ENTITIES AN OPPORTUNITY TO REQUEST A PUBLIC HEAR-
 ING AND, IF SO REQUESTED, A PUBLIC HEARING SHALL BE HELD. IF THE  PUBLIC
 HEALTH  AND  HEALTH PLANNING COUNCIL PROPOSES TO DISAPPROVE THE APPLICA-
 TION IT SHALL AFFORD THE APPLICANT AN OPPORTUNITY TO  REQUEST  A  PUBLIC
 HEARING. THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL MAY HOLD A PUBLIC
 HEARING  ON  THE  APPLICATION ON ITS OWN MOTION. ANY PUBLIC HEARING HELD
 PURSUANT TO THIS SUBDIVISION MAY BE CONDUCTED BY THE PUBLIC  HEALTH  AND
 HEALTH  PLANNING  COUNCIL, OR BY ANY INDIVIDUAL DESIGNATED BY THE PUBLIC
 HEALTH AND HEALTH PLANNING COUNCIL. THE PROVISIONS OF SUBDIVISION TWO OF
 THIS SECTION WHICH ARE NOT  INCONSISTENT  WITH  THIS  SUBDIVISION  SHALL
 APPLY TO NURSING HOMES.
   3-B.  WITH  RESPECT  TO  AN  APPLICATION FOR A CERTIFICATE OF INCORPO-
 RATION, ARTICLES OF ORGANIZATION OR APPLICATION FOR ESTABLISHMENT  OF  A
 NURSING HOME, IN ADDITION TO THE CRITERIA SET FORTH IN SUBDIVISION THREE
 OF THIS SECTION, THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL SHALL NOT
 ISSUE  AN  APPROVAL UNLESS THEY HAVE AFFORDED AN ADEQUATE OPPORTUNITY OF
 NOT LESS THAN NINETY DAYS TO MEMBERS OF THE PUBLIC, RESIDENTS AND  THEIR
 REPRESENTATIVES,  STAFF  AND  THEIR REPRESENTATIVES, THE STATE OFFICE OF
 THE LONG-TERM CARE OMBUDSMAN AND THE REGIONAL OFFICES TO COMMENT THROUGH
 THE DEPARTMENT'S WEBSITE AND THROUGH OTHER MEANS ON THE APPLICATION, THE
 CHARACTER  AND  COMPETENCY  OF  THE  INDIVIDUALS  APPLYING,  AND/OR  THE
 CONSISTENTLY  HIGH LEVEL OF CARE THAT HAS OR HAS NOT BEEN RENDERED BY AN
 APPLICANT WHERE ONE OR MORE INDIVIDUALS OR ENTITIES WITH A FIVE  PERCENT
 OR  GREATER  OWNERSHIP  INTEREST  IN THE APPLICANT HAS A FIVE PERCENT OR
 GREATER OWNERSHIP INTEREST IN A FACILITY LOCATED 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-
 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  RECEIVED A DOUBLE G CITATION ISSUED BY THE CENTERS FOR MEDICARE AND
 MEDICAID SERVICES IN THE PRIOR THREE YEARS. THE PUBLIC HEALTH AND HEALTH
 PLANNING COUNCIL SHALL ALSO CONSIDER WHETHER THE PROPOSED INCORPORATORS,
 DIRECTORS, SPONSORS, STOCKHOLDERS, MEMBERS OR  OPERATORS  OF  A  NURSING
 HOME  HAVE  AFFILIATIONS WITH OR INTERESTS IN A FACILITY ANYWHERE IN THE
 UNITED STATES WHICH: (I) IS LISTED ON THE  CMS  SPECIAL  FOCUS  FACILITY
 LIST,  OR  ITS  SUCCESSOR,  OR  (II)  IS LISTED ON THE CMS SPECIAL FOCUS
 FACILITY CANDIDATE LIST, OR ITS SUCCESSOR, OR (III) RECEIVED  INADEQUATE
 PERFORMANCE  SCORES  OVER THE PREVIOUS THREE YEARS ON THE NEW YORK STATE
 NURSING HOME QUALITY INITIATIVE OR ON SIMILAR QUALITY MEASUREMENT INITI-
 ATIVES OR TOOLS, OR (IV) HAS BEEN IN RECEIVERSHIP; CLOSED AS A RESULT OF

 S. 3060                             3
 
 A SETTLEMENT AGREEMENT FROM A DECERTIFICATION ACTION OR LICENSURE  REVO-
 CATION;  OR HAS BEEN INVOLUNTARILY TERMINATED FROM THE MEDICARE OR MEDI-
 CAID PROGRAM IN THE PRIOR FIVE YEARS,  OR  (V)  HAS  BEEN  CONVICTED  OF
 PATIENT  ABUSE, NEGLECT OR EXPLOITATION, OR (VI) HAS BEEN THE SUBJECT OF
 AN ENFORCEMENT ACTION BY THE STATE MEDICAID FRAUD CONTROL  UNIT  OR  THE
 FEDERAL  HEALTH AND HUMAN SERVICES OFFICE OF INSPECTOR GENERAL, OR (VII)
 HAS OUTSTANDING VIOLATIONS WITH THE NATIONAL LABOR  RELATIONS  BOARD  OR
 THE  OCCUPATIONAL  SAFETY  AND HEALTH ADMINISTRATION.  THE PROVISIONS OF
 SUBDIVISION THREE OF THIS SECTION WHICH ARE NOT INCONSISTENT  WITH  THIS
 SUBDIVISION SHALL APPLY TO NURSING HOMES.
   §  2. 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
 and  related  assets  AND  OPERATIONS.  1. The operator of a residential
 health care facility 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.  SUCH  INFORMATION
 SHALL  ALSO BE INCLUDED IN THE RESIDENCY AGREEMENT FOR PROSPECTIVE RESI-
 DENTS AND AS ADDENDUMS FOR RESIDENTS CURRENTLY RESIDING IN THE  RESIDEN-
 TIAL  HEALTH  CARE FACILITY. 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  OPERATOR  SHALL  ALSO
 PROVIDE  NOTIFICATION  TO ALL RESIDENTS AND THEIR REPRESENTATIVES, STAFF
 AND THEIR REPRESENTATIVES, AND THE STATE OFFICE OF  THE  LONG-TERM  CARE
 OMBUDSMAN.
   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.
   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:
   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  A  RESIDENTIAL
 HEALTH  CARE  FACILITY'S  INTENT  TO EXECUTE 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.
   6. THE OPERATOR OF A RESIDENTIAL HEALTH CARE FACILITY 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  LETTER  OF  INTENT  OR  OTHER CONTRACTUAL AGREEMENT AS
 DESCRIBED IN PARAGRAPHS A AND B OF SUBDIVISION FOUR OF THIS SECTION. THE
 DEPARTMENT SHALL MAKE REGULATIONS AND TAKE OTHER  ACTIONS  TO  IMPLEMENT
 PROCEDURES FOR SUCH NOTIFICATION.

 S. 3060                             4
 
   7.  THE  OPERATOR  OF  A RESIDENTIAL HEALTH CARE FACILITY SHALL RETAIN
 SUFFICIENT AUTHORITY AND CONTROL TO DISCHARGE ITS  RESPONSIBILITIES  AND
 THE  DEPARTMENT  SHALL  BY REGULATIONS OUTLINE THOSE ELEMENTS OF CONTROL
 WHICH SHALL NOT BE DELEGATED TO A MANAGING ENTITY.
   8.    ANY  NEW  OWNER, OPERATOR OR MANAGEMENT COMPANY OF A RESIDENTIAL
 HEALTH CARE FACILITY SHALL RETAIN ALL EMPLOYEES FOR A SIXTY-DAY  TRANSI-
 TION  PERIOD, EXCEPT FOR THE NURSING HOME ADMINISTRATOR AND THE DIRECTOR
 OF NURSING, AND SHALL NOT REDUCE THE WAGES OR BENEFITS,  OR  MODIFY  ANY
 OTHER  TERMS  AND CONDITIONS OF EMPLOYMENT, ECONOMIC OR OTHERWISE DURING
 THE TRANSITION PERIOD.
   9. 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.
   § 3. This act shall take effect immediately.