S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5201

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 21, 2013
                               ___________

Introduced  by  M.  of  A.  GOTTFRIED,  GUNTHER, COLTON, JAFFEE, LIFTON,
  ENGLEBRIGHT -- Multi-Sponsored by -- M. of A. ARROYO, PAULIN  --  read
  once and referred to the Committee on Health

AN  ACT  to  amend the social services law, in relation to penalties for
  violations relating to residential care programs for adults

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 7 and paragraphs (a) and (b) of subdivision 9
of section 460-d of the social services law, subdivision 7  as added  by
chapter  669  of  the  laws  of  1977, paragraph (a) of subdivision 7 as
amended by chapter 719 of the laws of 1989, paragraph (b) of subdivision
7 as amended by chapter 524 of the laws of 1984, subparagraph 2 of para-
graph (b) of subdivision 7 as amended by chapter  733  of  the  laws  of
1994,  paragraph  (a)  of subdivision 9 as amended by chapter 558 of the
laws of 1999 and paragraph (b) of subdivision 9 as added by chapter  848
of the laws of 1992, are amended to read as follows:
  7.  (a)  The  department  shall  adopt  regulations establishing civil
penalties of up to [one] FIVE thousand dollars PER VIOLATION per day  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 subdivi-
sion 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] FIVE thousand dollars  PER  VIOLATION  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01610-01-3
              

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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  facili-
ty'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)  Where the facility satisfactorily demonstrates that it either had
rectified the violations within thirty days of receiving CERTIFIED writ-
ten 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 rectify-
ing the violations in accordance with the steps  and  within  the  addi-
tional  periods of time as accepted by the department in such plan, [no]
THE DEPARTMENT MAY DETERMINE THAT THE penalty UNDER THIS  SECTION  shall
be  REDUCED FROM WHAT OTHERWISE WOULD 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] OR WAIVED. IN MAKING A
DETERMINATION UNDER THIS PARAGRAPH, THE DEPARTMENT SHALL CONSIDER:
  (I) WHETHER a particular violation[, although  corrected,]  endangered
or resulted in harm to any resident [as the result of:
  (i)], IN WHICH CASE THE PENALTY SHALL NOT BE REDUCED OR WAIVED. ENDAN-
GERMENT 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;
  [(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  super-
vision of residents by numbers of staff at least equivalent to the night
staffing requirement set forth in department regulations; or

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  [(vi)]  (F)  unreasonable  threats of retaliation or taking reprisals,
including but not limited to unreasonable threats of eviction or  hospi-
talization  against  any  resident, employee or other person who makes a
complaint concerning the operation of an adult  care  facility,  partic-
ipates  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]
VIOLATIONS to which this [subparagraph two] PARAGRAPH shall apply[.
  (3)  In assessing penalties pursuant to this paragraph, the department
shall consider promptness];
  (II) WHETHER A PARTICULAR VIOLATION IS ONE OF THE FOLLOWING:
  (A) A VIOLATION WHEREIN HARM, SHORT  OF  ENDANGERMENT  AS  DEFINED  IN
SUBPARAGRAPH (I) OF THIS PARAGRAPH, WAS ACTUALLY COMMITTED;
  (B)  A  VIOLATION  WHEREIN A RESIDENT OR RESIDENTS WERE PUT AT RISK OF
HARM; OR
  (C) A VIOLATION WHEREIN A RESIDENT WAS NEITHER HARMED NOR PUT AT  RISK
OF HARM;
  (III)  THE  FACILITY'S  HISTORY OF PROVIDING QUALITY CARE, VIOLATIONS;
AND
  (IV) PROMPTNESS of rectification, delay occasioned by the  department,
and the specific circumstances of the violations as mitigating factors.
  [(c)] (D) 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)]  (E) Any such penalty assessed by the department may be released
or compromised by the department 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 with the consent of the department.
  (a)  The department shall have authority to impose a civil penalty not
exceeding [one] FIVE thousand dollars PER VIOLATION per day 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

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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 deter-
mined  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.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law; provided that any  rules  and  regulations,  and  any
other  actions  necessary to implement the provisions of this act on its
effective date are authorized and directed to be completed on or  before
such date.