PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed action:
Addition of Part 1001 to Title 10 NYCRR.
Statutory authority:
Public Health Law, section 4662
Subject:
Assisted living residence.
Purpose:
To further the goals of the Assisted Living Reform Act by creating the regulatory framework necessary for implementation of the provisions therein.
Substance of proposed rule (Full text is posted at the following State website: www.health.state.ny.us):
The Assisted Living Reform Act creates several new licensure and certification categories: Assisted Living Residence (ALR), Enhanced ALR and Special Needs ALR. The Act defines “assisted living” and “assisted living residence” as “an entity” which provides or arranges for housing, on-site monitoring and personal care services and/or home care services (either directly or indirectly) in a home-like setting to five or more adult residents unrelated to the assisted living provider. An ALR must also provide daily food service, twenty-four hour on-site monitoring, case management services, and the development of an individualized service plan for each resident. In order to operate as an ALR, an operator must also be certified as an adult home or enriched housing program.
The ALR licensure category is viewed as a basic level of assisted living, but one that differs from the level of care provided by adult homes or enriched housing programs in several significant ways. An additional requirement for ALRs is an individualized service plan (ISP) for each resident. The ISP describes what services will be provided and the identified provider or staff responsible. The ISP must be reviewed and updated every six months as well as whenever a resident has a significant change in needs. In addition, prospective residents, resident and their representatives are entitled to significant residency agreement and disclosure information. Case management and other services and related staff qualification and training requirements will differ as well.
Certification as an Enhanced ALR will allow residents to age in place. This is a major new feature of the Assisted Living Reform Act. Assisted living residences with Enhanced ALR certification may admit and retain residents who exceed the retention standards of adult homes, enriched housing programs or assisted living residences. Enhanced ALRs cannot admit residents in need of 24-hour skilled nursing care or medical care. A written evaluation from the resident's physician that the resident does not require 24-hour skilled nursing care or medical care is required prior to admission. However, Enhanced ALRs may retain residents in need of 24-hour skilled nursing care or medical care if certain conditions are met as described in this section.
The second certification category for which ALRs may apply is the Special Needs ALR. The Special Needs ALR certification requires that ALRs that advertise or market themselves as serving individuals with special needs, including but not limited to dementia or cognitive impairments, must apply to the New York State Department of Health (the Department) for Special Needs ALR certification. All facilities currently licensed under Article 7 of the Social Services Law that operate dedicated dementia facilities and/or units will be required to apply for this designation. The Department has revised its current policy and procedures for such dementia units.
No adult home, enriched housing program or ALR may advertise or market itself as providing specialized services to individuals with special needs unless and until the residence has been licensed as an ALR and issued a Special Needs assisted living certificate. This approval will be based in part on the submission of a special needs plan which sets forth how the special needs of such residents will be safely and appropriately met at the residence. The plan must include, but need not be limited to, a written description of specialized services, staffing levels, staff education and training, work experience, professional affiliations or special considerations relevant to serving persons with special needs, as well as any environmental modifications that have been made or will be made to protect the health, safety, and welfare of such persons in residence. The approval of any special needs program will also be based on adherence to any standards developed by the Department to ensure adequate staffing and training necessary to safely meet the needs of the specialized population proposed to be served.
The Department proposes the following rule making for the purpose of providing a regulatory framework for implementation of the Assisted Living Reform Act of 2004.
Section 1001.1 sets out the types of residences to which this regulation applies, as well as what other regulations will apply to assisted living residences.
Section 1001.2 lists the applicable definitions.
Section 1001.3 provides the requirements pertaining to certificates of incorporation and/or articles of organization. Specifically, this section sets forth the requirements for a not-for-profit corporation or business corporation to file or amend certificates of incorporation or for a limited liability company to file or amend articles of organization for the purpose of establishing and operating or fundraising on behalf of any ALR, Enhanced ALR or Special Needs ALR.
Section 1001.4 describes who may be issued operating certificates to operate an ALR, Enhanced ALR or a Special Needs ALR. In addition, this section discusses what must be contained in the respective operating certificates. This section also prohibits the operator from taking certain actions with respect to the operating certificate. Also detailed is what actions must be taken by the operator in the event that the residence ceases operations. Finally, this section provides what authority the operator and the fact that such authority is limited to the operator.
Section 1001.5 enumerates the procedure for and what information must be included in an application for licensure as an ALR and for certification as an Enhanced ALR or a Special Needs ALR. This section also describes the process that will be followed by the Department when considering applications.
Section 1001.6 provides the general provisions to which all assisted living residences must adhere.
Section 1001.7 discusses the admission and retention standards applicable to assisted living residences. Specifically, this section provides the standards that need to be met at the differing levels of care. This section also lists the differing levels of resident infirmity that would preclude a residence (depending on the type of certificate that the facility is operating under) from admitting and/or retaining such a resident.
Section 1001.8 provides the consumer and resident protections. These specific protections require each residence to provide the residents with a living environment that promotes dignity, autonomy, independence and privacy in the least restrictive and most home like setting. This section provides individual residents' right as well as providing for the support of resident and family organizations. Also enumerated in this section are standards that must be followed when creating and implementing residency agreements.
Section 1001.9 sets forth the requirements of how residents' funds and valuables are to be maintained and protected.
Section 1001.10 lists the services that must be provided by assisted living residences. These services include, but are not limited to the following: monitoring, daily food service, case management service, personal care, health care, medication management. Depending on the operating certificate of the individual residence, the residence may expand the scope of the basic services provided and/or provide additional services.
Section 1001.11 discusses personnel requirements. This section delineates staff training requirements, appropriate tasks for each specific training level and the staffing levels and classifications that must be present at the residence at any given time.
Section 1001.12 proscribes what records and reports must be generated and maintained by the operator.
Section 1001.13 lists the structural and environmental standards that must be met by both existing and newly constructed residences.
Section 1001.14 set forth the requirement that each residence must have disaster and emergency preparedness plans. This section also provides what should be included in such plans and how often such plans should be updated.
Section 1001.15 provides for the inspection and enforcement procedures to which each assisted living residence will be subject, and enumerates the schedule of penalties.
Section 1001.16 details the requirements and procedures to be followed should an operator of a residence contract with a separate entity for the provision of any of the residence's management or operations.
In addition to the sections set forth above, the residence will also be required to comply with any applicable adult care facility regulations found in Title 18 of the New York Code of Rules and Regulations Parts 485, 486, 487 and 488 and any other statutes and regulations required for maintaining a valid operating certificate issued pursuant to Title Two of Article Seven of the Social Services Law, unless superceded by a conflicting provision of the Assisted Living Reform Act, and shall obtain and maintain all other licenses, permits, registrations or other government approvals required in addition to the requirements under Article Seven.
Text of proposed rule and any required statements and analyses may be obtained from:
William Johnson, Department of Health, Division of Legal Affairs, Office of Regulatory Reform, Corning Tower, Rm. 2415, Empire State Plaza, Albany, NY 12237, (518) 473-7488, fax: (518) 486-4834, e-mail: regsqna@health.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
Statutory Authority:
The authority for the promulgation of these regulations is contained in Section 4662 of the Public Health Law (PHL), through Chapter 2 of the Laws of 2004 (known as the “Assisted Living Reform Act” or ALRA, PHL Article 46-B). PHL Section 4662 authorizes the Commissioner of Health to promulgate, in consultation with the Director of the State Office for the Aging, such rules and regulations as are necessary to implement the provisions of this article. Section 4662 further authorizes the Commissioner to receive and investigate complaints regarding the condition, operation and quality of care of any entities holding themselves out as “assisted living” or advertising themselves by a similar term, and to exercise all other powers and functions as are necessary to implement the provisions of Article 46-B.
In order to be licensed as an assisted living residence (ALR), Article 46-B requires all residences to be certified as an adult home or enriched housing program in accordance with Article 7 of the Social Services Law (SSL). Residences that are currently unlicensed desiring to be licensed as an ALR must simultaneously submit an application for licensure as an ALR and an SSL Article 7 application to seek approval as an adult home or enriched housing program. The residence must also be in compliance with all rules and regulations applicable to such facilities (18 NYCRR Parts 485, 486, and 487 (adult homes) or 488 (enriched housing programs)) unless a provision of the ALRA supercedes the Article 7 statutory or regulatory provision. Section 122(c) of Chapter 436 of the Laws of 1997 provides that effective April 1, 1997, the functions, powers, duties and obligations of the former Department of Social Services concerning adult homes, enriched housing programs, residences for adults and assisted living programs (i.e., “adult care facilities”) are transferred to the New York State Department of Health.
Legislative Objectives:
In enacting Chapter 2 of the Laws of 2004, the Legislature found and declared that congregate residential housing with supportive services in a home-like setting, commonly known as “assisted living”, is an integral part of the continuum of long term care. Further, the philosophy of assisted living emphasizes aging-in-place, personal dignity, autonomy, independence, privacy and freedom of choice. The legislative objective of PHL Article 46-B is to create a clear and flexible statutory structure for assisted living that provides a definition of “assisted living residence”; that requires licensure of the residence; that requires a written residency agreement that contains consumer protections; that enunciates and protects resident rights; and that provides adequate and accurate information for consumers, which is essential to the continued development of a viable market for assisted living.
“Assisted living” and “assisted living residence” means an entity which provides or arranges for housing, on-site monitoring, and personal care services and/or home care services (either directly or indirectly), in a home-like setting to five or more adult residents unrelated to the assisted living provider. An applicant for licensure as assisted living that has been approved in accordance with the provisions of this article must also provide daily food service, twenty-four hour on-site monitoring, case management services, and the development of an Individualized Service Plan for each resident. An operator of assisted living shall provide each resident with considerate and respectful care and promote the resident's dignity, autonomy, independence and privacy in the least restrictive and most home-like setting commensurate with the resident's preferences and physical and mental status.
Needs and Benefits:
For many years, it has been very difficult for consumers to compare one assisted living residence to another because, in New York State, there had been no standard definition. This opinion was echoed in a 1999 report by the federal General Accounting Office (GAO), which outlined the results of a two-year study of assisted living in four states. A major finding of the report was that consumers need clear and complete information regarding facility services, costs and policies in order to make an informed decision and that, in the states studied, seniors were not routinely provided with sufficient information to allow them to select the most appropriate setting.
To help seniors make such informed decisions before agreeing to live in an assisted living residence, the ALRA requires every residence to provide clear and complete information to prospective residents before they sign a contract. Under this new law, ALRs must use a standard “plain language” contract — with no small print — that fully discloses what services are provided, by whom, and the cost. The law also requires ALRs to disclose to seniors the conditions under which an operator can terminate a residency agreement and what the resident can expect to happen if they can no longer pay the fees.
The ALRA also fills the gaps in adult residential services law that in some instances allowed facilities to operate without any licensure or State surveillance. For instance, it requires certain adult residences that had operated without license (known as “look alike” facilities) to become certified as adult care facilities and therefore subject to State regulation and oversight. Any residence that then wishes to market itself as assisted living must seek an additional licensure as an Assisted Living Residence.
In other instances, facilities had long been prevented from appropriately expanding the range of services provided to their residents as their needs changed over time. The ALRA provides a mechanism to allow those operators who wish to provide a broader range of services, known as “aging in place”, to do so by becoming licensed as an Assisted Living Residence and obtaining additional certification as Enhanced Assisted Living from the Department. Those operators seeking to provide specialized services to special needs residents, such as those with Alzheimer's or dementia, will likewise have to be licensed as an Assisted Living Residence and also obtain a Special Needs Assisted Living certificate.
To obtain either the Enhanced Assisted Living or Special Needs Assisted Living certifications, operators must submit a plan to the Department demonstrating how they will safely and appropriately meet all of their residents' needs, and have policies in place to continually meet those needs as they change over time. The plan must include, but not be limited to, a written description services, staffing levels, staff education and training, work experience, and any environmental modifications that have been or will be made to protect the health, safety and welfare of such residents.
The ALRA provides several important opportunities for consumers and providers: greater clarity as to the definition of “assisted living”; greater assurance that the combinations of housing and services referred to as assisted living will be subject to State oversight; significant protection of consumer/resident rights; the opportunity to age in place with dignity and choice in a more home-like setting; as well as the opportunity for persons with special needs to obtain specialized care by persons with appropriate qualifications and experience. These regulations further the goals of PHL Article 46-B by creating the regulatory framework necessary for implementation of the provisions therein, including but not limited to criteria by which applications for licensure and certification can be reviewed, defining “independent senior housing”, establishing standards for the hiring of direct care staff by residences, and generally clarifying and carrying out the intent of the law.
Costs:
PHL Section 4656(6) prescribes the fees associated with licensure and certification for assisted living. The basic biennial assisted living residence fee is $500 per facility plus an additional $50 for each ALR resident whose income exceeds 400% of the Federal Poverty Level (FPL). The maximum ALR fee required for an individual facility is $5,000. In 2006, 400% of the Federal Poverty Level represents an income level of $39,200 per individual. Financial information on residents who are below the 400% FPL threshold and are not Medicaid or SSI eligible must be maintained to verify their eligibility for an exemption to the $50 fee.
The biennial fee for Enhanced Assisted Living certification is $2,000. The biennial fee for Special Needs Assisted Living is also $2,000. Facilities applying for Enhanced Assisted Living and Special Needs Assisted Living at the same time are entitled to a discount and are only required to remit a total of $3,000 for both certifications. All applicable fees must be submitted with the initial application for licensure/certification.
Cost to State and Local Government:
None.
Cost to the Department of Health:
Passage of the ALRA has necessitated the Department hiring of staff to implement its licensure and certification provisions, specifically the review of initial applications submitted to the Department. Under this Act, through creation of a new State Finance Law Section 99-l, a special fund is created in the joint custody of the State Comptroller and the Commissioner of Health — the “Assisted Living Residence Quality Oversight Fund”.
This fund shall consist of all money collected by the Department pursuant to PHL Article 46-B, including licensure fees, certification fees and civil penalties collected. Any interest earned on investment of monies by such fund becomes part of the fund. The fund shall be available to the Department for the purpose of implementation of PHL Article 46-B.
Through passage of the SFY 2006-07 Budget, the Department has been authorized up to $2 million from this special revenue account for the implementation and oversight activities related to this Act. In addition, the Act provides that $500,000 is to be available from this fund to the State Office for Aging's Long-Term Care Ombudsman Program for the purposes of carrying out the provisions of Article 46-B.
Local Government Mandates:
None.
Paperwork:
In many regards, the application process for ALRs is very similar to the process that operators currently utilize to obtain certification for an adult home or enriched housing program. Likewise, with regards to obtaining an Enhanced Assisted Living or Special Needs Assisted Living Certificate, operators will have to submit an application to the Department providing a plan which sets forth how the additional needs of such residents will be safely and appropriately met, including but not limited to, a written description of services, staffing levels, staff education and training, work experience, and any environmental modifications.
In addition to these application processes to obtain licensure as an ALR and/or certification for Enhanced and/or Special Needs Assisted Living, the Assisted Living Reform Act contains numerous provisions to ensure resident rights are protected and adequate and accurate information is available for consumers. For instance, the Act requires a written residency agreement that contains consumer protections, and enunciates and protects resident rights.
A key provision of the Act is development of an Individualized Service Plan (ISP). A written ISP must be developed for each resident upon admission. The ISP is to be developed with the resident, resident's representative and resident's legal representative, if any; the operator; and, if necessary, a home care services agency. The initial ISP will be developed in consultation with the resident's physician. If the physician determines that the resident is not in need of home care services, a home care services agency need not participate in the development of the ISP.
The ISP will take into account the medical, nutritional, rehabilitation, functional, cognitive and other needs of the resident. The ISP will include the services to be provided, and how and by whom services will be provided and accessed. The ISP is to be reviewed and revised as frequently as necessary to reflect the changing care needs of the resident, but no less frequently than every six months. To the extent necessary, such review and revision will be undertaken in consultation with the resident's physician.
The ALRA requires that certain important information be disclosed to prospective residents and their representatives, pursuant to PHL Section 4658(3). Among the items to be disclosed are: a consumer guide to inform and assist the consumer in the selection of an ALR (prepared by DOH in consultation with the State Office for the Aging, consumers, operators of ALRs, and home care services providers); a statement listing the residence's licensure status and whether it has an Enhanced Assisted Living or Special Needs Assisted Living certificate; a statement that the resident shall have the right to receive services from service providers with whom the operator does not have an arrangement; a statement that the resident shall have the right to choose their health care providers, notwithstanding any agreements to the contrary; and a statement regarding the availability of Long-Term Care Ombudsman Services and the telephone number of the local and State ombudsman.
Duplication:
This regulation does not duplicate any other state or federal law or regulation. PHL Section 4656(1) requires that, in order to operate as an assisted living residence, an operator shall be certified as an adult home or enriched housing program pursuant to Title 2 of Article 7 of the Social Services Law. PHL Section 4656(2) goes on to require the assisted living operator to comply with all applicable statutes, rules and regulations required for maintaining a valid operating certificate for an adult home/enriched housing program.
In PHL Section 4656(7), this lack of duplication is emphasized, stating that the requirements of PHL Article 46-B “shall be in addition to those required of an adult care facility. In the event of a conflict between any provision of this article and a provision of Article 7 of the Social Services Law or a regulation adopted thereunder, the applicable provision of [PHL Article 46-B] or the applicable regulation shall supersede Article 7 of the Social Services Law or the applicable regulation thereunder to the extent of such conflict.” In addition, the application process provides for a streamlined procedure for review of character and competence for those existing operators of adult homes and enriched housing programs who are in “good standing” with the Department in terms of compliance. Operators are being requested to submit only those application materials that are updated information or that is different from what they may have submitted to the Department in previous applications.
Alternatives:
Pursuant to Public Health Law Article 46-B, the Assisted Living Reform Act, added by Chapter 2 of the Laws of 2004, the Department has developed these regulations in close consultation with the Office for the Aging and the Taskforce on Adult Care Facilities and Assisted Living Residences (the Taskforce). The Taskforce members include representatives of consumer organizations, proprietary and non-profit operators of adult homes and enriched housing programs, an operator of currently unlicensed facilities, providers of care for persons with dementia, as well as representatives of the Department, the Office for the Aging, the Commission on Quality of Care and Advocacy for Persons with Disabilities and the Office of Mental Health. Since April of 2005, the Department has met on numerous occasions with Taskforce members to discuss nearly every aspect of the implementation of the program, and has provided many opportunities for comment, by Taskforce members and members of the public attending Taskforce meetings, on implementation issues and proposed guidance material intended to be incorporated into the regulations. The Department has considered these comments and recommendations, and has incorporated many such comments and recommendations into the proposed regulations.
Federal Standards:
This regulatory amendment does not exceed any minimum standards of the federal government for the same or similar subject areas.
Compliance Schedule:
As Section 7 of the Laws of Chapter 2 of the Laws of 2004 prohibits the Department from issuing emergency regulations in regard to PHL Article 46-B, this regulation will take effect upon publication of a notice of adoption in the New York State Register.
In terms of compliance schedule, the “Assisted Living Reform Act” became effective 120 days after being signed into law. Since the Governor signed the bill on October 26, 2004, the Act was effective as of February 23, 2005.
The Act states that any entity which qualifies as an ALR pursuant to PHL Article 46-B and operating as an ALR on or before the effective date shall, within 60 days of such effective date (that is, by April 25, 2005) apply to be licensed or certified with the Commissioner of Health in accordance with the provisions of Article 46-B upon approval of all licenses and certification for which the entity has applied.
Given the very short timeframe for implementation provided under the Act, the ALR application was not available to applicants until June 3, 2005. Therefore, the Department extended the deadline for submission of the application to August 3, 2005. This regulation will enable the Department to act upon those applications, and perform the oversight functions necessary for implementing the provisions of the Act.
Regulatory Flexibility Analysis
Effect of Rule:
There are 500 existing adult homes and enriched housing programs in New York State. Of those, 371 have been identified as being certified for 100 or fewer beds and considered a small business (74%).
To date, 226 existing adult homes and enriched housing programs have applied for licensure as Assisted Living Residences (ALRs). An additional 46 applications have been received by the Department by facilities proposing to be certified as an adult home/enriched housing program and subsequently licensed as an ALR.
The Department has advised prospective applicants that, in order to be licensed as an ALR, the facility's entire capacity will have to be subject to such licensure. Currently with regards to adult care facilities, for example, a 100-bed facility could be comprised of 80 adult home beds and 20 enriched housing program beds. If this same facility desired licensure as an ALR, all 100 beds would have to be licensed as such. It is expected that majority of facilities applying for ALR licensure will be for 100 or fewer beds and, thereby, considered a small business.
Local governments are not affected by this rule, unless they intend to apply to the Department to operate an ALR.
Compliance Requirements:
In order to comply with these requirements, any entity wishing to establish, operate, provide, conduct, or offer “assisted living” in New York state, or hold itself out as an entity which otherwise meets the definition of “assisted living” or by a similar term, must apply and obtain approval of the Department to operate as an adult care facility (either an adult home or an enriched housing program) and as an assisted living residence. This shall not apply to Assisted Living Programs (ALPs) approved by the Department pursuant to SSL Section 461-l.
Professional Services:
All facilities required to obtain licensure as an ALR must have staff trained and qualified to provide the care and services the residence has been approved by the Department to provide.
Compliance Costs:
PHL Section 4656(6) prescribes the fees associated with licensure and certification for assisted living. The basic biennial assisted living residence fee is $500 per facility plus an additional $50 for each ALR resident whose income exceeds 400% of the Federal Poverty Level (FPL). The maximum ALR fee required for an individual facility is $5,000. In 2006, 400% of the Federal Poverty Level represents an income level of $39,200 per individual. Financial information on residents who are below the 400% FPL threshold and are not Medicaid or SSI eligible must be maintained to verify their eligibility for an exemption to the $50 fee.
The biennial fee for Enhanced Assisted Living certification is $2,000. The biennial fee for Special Needs Assisted Living is also $2,000. Facilities applying for Enhanced Assisted Living and Special Needs Assisted Living at the same time are entitled to a discount and are only required to remit a total of $3,000 for both certifications. All applicable fees must be submitted with the initial application for licensure/certification.
Economic and Technological Feasibility:
As the majority of such existing facilities are small businesses, it should be economically and technologically feasible for small businesses to comply with the regulations.
Minimizing Adverse Impact:
The “Assisted Living Reform Act” created a Task Force on Adult Care Facilities and Assisted Living Residences, to update and revise the requirements and regulations applicable to [ACFs and ALRs] to better promote resident choice, autonomy and independence. The Task Force consists of ten appointed members (six appointed by the Governor, two by the Senate, and two by the Assembly), as well as four ex-officio members (the Commissioner of Health, the Director of the State Office for the Aging, the Commissioner of the Office of Mental Health, and the Chair for the Commission on Quality of Care and Advocacy for Persons with Disabilities). Beginning with their first meeting in April 2005, the Task Force also makes recommendations with respect to “minimizing duplicative or unnecessary regulatory oversight.” In order to minimize adverse impact, the Department has consulted with the Task Force on the principles contained within this regulatory package.
Small Business and Local Government Participation:
As stated above, the Task Force on Adult Care Facilities and Assisted Living Residences first convened in April 2005, and has met a total of eleven times through April 2006. In addition to ex-officio members of four State agencies, the Task Force includes representatives of the ACF and assisted living industry, home care representatives, and consumer advocates.
Rural Area Flexibility Analysis
Pursuant to section 202-bb of the State Administrative Procedure Act, a rural area flexibility analysis is not required. These provisions apply uniformly throughout New York State, including all rural areas.
The proposed rule will not impose an adverse economic impact on rural adult care facilities or assisted living residences.
Job Impact Statement
A Job Impact Statement is not included because it is apparent from the nature and purpose of this regulation that it will not have a substantial adverse impact on jobs and employment activities.
