PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Parts 486 and 487 of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 460-d, 461 and 461-e
Subject:
Adult Homes.
Purpose:
To limit the number of residents with serious mental illness in large adult homes.
Text of proposed rule:
Section 487.2 is amended to add a new subdivision (c) to read as follows:
(c) Persons with serious mental illness means individuals who (1) meet criteria established by the commissioner of mental health, which shall be persons who have a designated diagnosis of mental illness under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR, American Psychiatric Association, July 2000), and whose severity and duration of mental illness results in substantial functional disability or (2) are receiving or have received within the past five years services from a mental hygiene provider which is licensed, operated or funded by the Office of Mental Health.
Subdivision (d) of Section 487.3 is amended to read as follows:
(d) An operator shall afford any officers, [or] duly authorized employee or agents or any designee of the department access at any time to the residents, grounds, buildings and any records related to resident care and services.
Subdivision (c) of Section 487.4 is amended to read as follows:
(c) An operator shall not admit or retain a number of persons in excess of the capacity specified on the operating certificate. No operator of an adult home with a certified capacity of eighty or more and a mental health census, as defined in section 487.2(c) of this Part, of 25 percent or more of the resident population shall admit any person whose admission will increase the mental health census of the facility.
Subdivision (d) of Section 487.4 is amended to read as follows:
(d) An operator shall not admit an individual before a determination has been made that the facility program can support the physical, psychological and social needs of the resident.
Subdivision (g) of Section 487.4 amended to read as follows:
(g) Each mental health evaluation shall be a written and signed report, from a psychiatrist, physician, registered nurse, certified psychologist or certified social worker who is approved by the department in consultation with the Office of Mental Health, and who has experience in the assessment and treatment of mental illness. The mental health evaluation shall include:
(1) [significant mental health history and current conditions] the date of examination;
(2) [a statement that the resident is not mentally unsuited for care in the facility] significant mental health history and current conditions, including: (i) whether the resident has a serious mental illness; (ii) whether the resident is receiving or has ever received services from a mental hygiene provider licensed, operated or funded by the Office of Mental Health, and if so, a description of these services, including their dates; (iii) a statement of the resident's need, if any, for supervision and assistance with activities of daily living; and (iv) the prescribed medication regimen, including information regarding the resident's ability to self-administer medications;
(3) a statement that the resident's mental health needs can be adequately met in the facility and a statement that the resident does not evidence need for placement in a residential treatment facility licensed or operated pursuant to article 19, 23, 29, or 31 of the Mental Hygiene Law;
(4) a statement that the person signing the report has conducted a face-to-face examination of the resident within 30 days of the date of admission or, for required annual evaluations, within 30 days of the report.
Subdivision (b) of section 487.10 is amended to read as follows:
(b) The department or its designee may examine the books and records of any facility to determine the accuracy of the financial statement, or for any other reason deemed appropriate by the department to effectuate the purposes of these regulations.
Paragraph 4 of subdivision (c) of section 487.10 is amended to read as follows:
(4) At a minimum, the operator shall maintain:
(i) financial records for each resident which contain, at a minimum, a copy of the current admission agreement, documentation of the status of the resident's payment account, personal fund account, and a current inventory of any personal property held in custody for the resident by the operator;
(ii) personal records for each resident which contain, at a minimum: personal data, including identification of the resident's next of kin, family and sponsor, the name and address of the person or persons to be contacted in the event of emergency, copies of the resident's medical evaluations and other medical information, copies of the resident's mental health evaluations, summaries of the social evaluations, and details of referral and such other correspondence and papers as are available to document the physical, mental and social status of the resident; and
(iii) records which are readily available to food service staff and enable staff to plan for and accommodate prescribed dietary regimens, allergies and individual food preferences.
Subparagraph (ii) of paragraph (5) of subdivision (d) of section 487.10 is amended to read as follows:
(ii) resident records stipulated elsewhere in these regulations, including daily census reports, a weekly roster of residents who are persons with serious mental illness as defined in subsection 487.2(c) of this Part, and incident reports;
Subdivision (d) of section 487.10 is amended to add a new paragraph (6) to read as follows:
(6) The records and reports required to be maintained by the operator pursuant to this subdivision shall not be posted or otherwise made available to the public.
Paragraph 2 of subdivision (e) of section 487.10 is amended to read as follows:
(2) A quarterly statistical information report which must: (i) identify the quarter being reported on; (ii) contain a census report, which shall include a roster of residents who are persons with serious mental illness as defined in subsection 487.2(c) of this Part; (iii) for any residents admitted during the quarter reported on, the prior residence, and for any residents discharged during the quarter being reported on, the discharge location; and (iv) contain the number of resident deaths which occurred during the quarter being reported on.
Subdivision (f) of section § 487.10 is amended to add a new paragraph (7) to read as follows:
(7) Mental Health Evaluation (DOH _____);
Part 487 is amended by adding a new section 487.13 to read as follows:
487.13 Transitional Adult Homes
(a) This section shall apply to all transitional adult homes.
(b) Definitions
(1) A transitional adult home is an adult home with a certified capacity of 80 beds or more in which 25 percent or more of the resident population are persons with serious mental illness as defined in subsection 487.2(c) of this Part.
(2) An alternative community setting is any setting other than a transitional adult home that is designed to promote independence and economic self-sufficiency. Alternative community settings include, but are not limited to (i) supported housing, including scattered site apartments and single site apartments; (ii) supported single room occupancy; (iii) supportive housing, including community residence single room occupancy; (iv) community residences; (v) apartment treatment, (vi) senior housing; (vii) enriched housing programs; and (viii) such other housing alternatives as are clinically appropriate.
(3) Community services means services and supports provided in New York State that assist individuals with mental illness to live in the community. Such services and supports include, but are not limited to, assertive community treatment, intensive case management, case management, personalized recovery oriented services, continuing day treatment and Medicaid benefits for which a resident is eligible, including home and community based services waivers, clinic services, certified home health care, personal care assistance, and rehabilitative services.
(4) Mental health census means the number of residents in a facility who are persons with serious mental illness as defined in subsection 487.2(c) of this Part.
(5) Housing contractors means housing providers that have contracted with the Office of Mental Health to provide residents with information regarding housing alternatives and community services and (ii) make community housing available to residents pursuant to such contracts.
(6) Community transition coordinator means a contractor retained by the department to facilitate the transition of residents to alternative community settings.
(c) The operator of every transitional adult home shall submit to the department a compliance plan that is designed to bring the facility's mental health census to a level that is under 25 percent of the resident population over a reasonable period of time, through the lawful discharge of residents with appropriate community services to alternative community settings.
(d) The compliance plan shall be submitted by the deadline set forth in subsection (e) of this section and shall specify:
(1) How and by when the operator will achieve a mental health census that is under 25 percent of the resident population;
(2) How the operator will address the needs of its residents, in particular those residents who are persons with serious mental illness as defined in subsection 487.2(c) of this Part, while the reduction in mental health census is being achieved, including but not limited to:
(i) ensuring the development of independent living skills;
(ii) ensuring access to and quality of mental health services;
(iii) encouraging community involvement and integration; and
(iv) fostering a homelike atmosphere;
(e) The operator shall submit the compliance plan no later than 60 days after the effective date of this regulation.
(f) The department, in consultation with the Office of Mental Health, shall review each compliance plan and either:
(1) approve the compliance plan; or
(2) require modification of the compliance plan by the operator. Any such modifications shall be submitted within 30 days of notice by the department and shall be subject to the approval of the department, in consultation with the Office of Mental Health.
(3) If the operator does not submit a compliance plan, or submits a compliance plan that is not acceptable to the department after modification, the department will impose a compliance plan on the operator.
(g) Upon approval of the compliance plan by the department, or, if no compliance plan is submitted or approved, upon the imposition of a compliance plan on the operator by the department, the operator shall implement the compliance plan.
(h) The operator shall cooperate with the community transition coordinator, housing contractors, and health home and managed long term care plan assessors and shall provide, without charge, space for residents to meet privately with such individuals or entities. The operator shall not attempt to influence or otherwise discourage individual residents from meeting with such entities and individuals.
Subdivision (c) of Section 486.7 is amended to read as follows:
(c) Penalties for Part 487 of this Title.
Department regulations
Penalty per violation per day
*
*
*
487.10
(d)
(5)
(i)
10
(ii)
10
(iii)
10
(iv)
10
(v)
10
(vi)
10
(vii)
10
(viii)
10
(ix)
10
(6)
100
*
*
*
487.10
(f)
(1)
10
(2)
10
(3)
10
(4)
10
(5)
10
(6)
10
(7)
50
*
*
*
487.13
(c)
$ 1000
(d)
1000
(e)
1000
(g)
1000
(h)
1000
Text of proposed rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473-7488, email: 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 Sections 460-d, 461 and 461-e of the Social Services Law (SSL). SSL Section 460-d (7) requires the Department of Health to adopt regulations establishing civil penalties of up to $1000 per day to be assessed against adult care facilities found to be in violation of regulations applicable to such facilities. SSL Section 461 (1) requires the Department to promulgate regulations establishing general standards applicable to adult care facilities. SSL Section 461-e (5) authorizes the Department to promulgate regulations to require an adult care facility to maintain certain written records with respect to the facility's residents and the operation of the facility.
Section 122 (e) 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 are transferred to the Department of Health.
Legislative Objectives:
The proposed regulation, which would limit the percentage of residents with serious mental illness in adult homes with a certified capacity of eighty or more to less than 25 percent of the resident population, is consistent with the objectives the Legislature sought to advance when it enacted SSL Section 461(2), under which the Department of Health and the Offices of the Department of Mental Hygiene are to develop and promulgate standards for the protection of the health and well-being of adult care facility residents with mental disabilities.
Needs and Benefits:
The New York State Office of Mental Health ("OMH") has made a clinical determination that while mixed use, larger scale congregate housing is an important and viable form of community living, certain housing settings in which there are a significant number of individuals with serious mental illness are not conducive to the recovery or rehabilitation of the residents. This is particularly so when the settings: are not specifically designed to serve people with serious mental illness; are not under the license and control of OMH; do not foster independent living due to institutional practices such as of congregate meals or ritualized medication administration; and do not provide specifically designed rehabilitation programs linked to community work settings. OMH will be issuing regulations applicable to all OMH-licensed psychiatric hospitals and units that prohibit the discharge of a patient to a transitional adult home, as defined in the regulations of the Department of Health, unless the patient was a resident of the home immediately prior to his or her current period of hospitalization.
These regulations, which apply statewide, address the large concentration of individuals with serious mental illness in large adult homes by amending Section 487.4 to limit the number of residents with serious mental illness as defined in new subsection 487.2(c) to less than 25 percent of the resident population, in all adult homes with a certified capacity of eighty or more. Section 487.13 requires the operator of every adult home with a certified capacity of 80 or more in which the number of residents with serious mental illness is already 25percent or more of the resident population ("transitional adult homes") to create and implement a compliance plan that is acceptable to the Department of Health to reduce that number to a level that is less than 25 percent of the resident population, over a reasonable period of time, through the lawful discharge of residents to alternative community settings with appropriate community services. The compliance plan must also specify how the operator of a transitional adult home will serve the needs of its mental health population while the reduction in population is being achieved, particularly with regard to ensuring the development of independent living skills, ensuring access to and quality of mental health services, encouraging community involvement and integration, and fostering a homelike atmosphere. Operators of transitional adult homes who do not submit a compliance plan, or who submit a compliance plan that is not acceptable to the Department, will have a compliance plan imposed on them by the Department.
Section 487.4 is also revised to set standards for the mental health evaluations that are currently required for some individuals seeking admission to adult homes, by requiring the mental health professionals conducting the evaluations to be approved by the Department of Health in consultation with the Office of Mental Health, and requiring those professionals to collect additional information about each prospective residents as part of the mental health evaluation.
Section 487.10 is also revised to impose additional record-keeping requirements on all operators of adult homes.
Part 486 is amended to include penalties for failure to comply with the provisions of Part 487 as amended and new Part 487.13.
Costs:
Costs for the Implementation of, and Continuing Compliance with, the Regulation to the Regulated Entity:
Revisions to the existing mental health evaluation process and minor changes to reporting and records posting could result in relatively minor additional costs to adult homes. For transitional adult homes, there are likely to be additional costs associated with the development of compliance plans, but those costs should also be relatively minor. Any additional costs to transitional adult homes associated with implementing compliance plans will be dependent on the specific components of each compliance plan, which is subject to review and approval by the Department of Health. The estimated amount of lost net revenue to an operator of an adult home that is not able to replace a discharged resident is estimated at between four and five dollars per discharged resident per day.
Costs to State and Local Governments:
As a result of the Compliance Plans required by these regulations, many adult home residents with serious mental illness are expected to transition to alternative community settings, including but not limited to OMH-funded Supported Housing. The annual cost of one Supported Housing unit is approximately $20,000 per person. However, while OMH is engaged in a multi-year effort to expand development of Supported Housing units to serve individuals with serious mental illness, including adult home residents, it is not possible to project the precise number of Supported Housing units that will be needed for this population, which will depend on factors including resident assessments and the need to target units throughout the state. Moreover, it is expected that when adult home residents with behavioral health needs transition to appropriate community housing, coupled with appropriate supportive services, their overall utilization of Medicaid-funded services will decrease.
Several local governments operate adult homes on a not-for-profit basis. These local governments will incur the same costs as any other adult home or transitional adult home operator.
Costs to the Department of Health:
The Department of Health will utilize existing resources to monitor compliance with this regulation.
Local Government Mandate:
Local governments that operate adult homes must comply with this regulation. No new local government program, project or activity is required by the proposed regulations.
Paperwork:
All adult home operators are currently required to submit a quarterly statistical information report to the Department of Health. These regulations set forth the information to be included in that report, which includes a census report with a roster of residents who are persons with serious mental illness and the discharge location of any resident discharged during the quarter, among other information. All adult homes will also be required to maintain a weekly roster of residents who are persons with serious mental illness.
Currently, adult home operators are required to obtain mental health evaluations for some residents. Under the new regulations, these mental health evaluations must be retained by the operators.
Adult home operators must maintain all such information confidentially.
In addition, operators of transitional adult homes are required to submit compliance plans to the Department of Health for approval. (See Needs and Benefits, above).
Duplication:
These regulatory amendments do not duplicate existing State or federal requirements.
Alternatives:
In light of the Office of Mental Health's clinical determination, it is necessary to address the large concentration of individuals with serious mental illness in large adult homes. It was determined that the most appropriate response was limiting the number of residents with serious mental illness to less than 25 percent of the resident population in adult homes with a certified capacity of eighty or more, and requiring operators of adult homes with a certified capacity of 80 or more in which the number of residents with serious mental illness is currently 25 percent or more of the resident population to submit and implement a compliance plan to reduce that number to a level under 25 percent of the resident population, over a reasonable period of time, through the lawful discharge of residents to alternative community settings with appropriate community services.
Federal Standards:
This regulatory amendment does not exceed any minimum standards of the federal government for the same or similar subject areas.
Compliance Schedule:
All adult homes will need approximately 60 days to come into compliance with new reporting and recordkeeping requirements.
Operators of transitional adult homes will have 60 days to comply with the requirement to submit a compliance plan. Any modifications required by the Department of Health must be submitted within 30 days. Operators of transitional adult homes that fail to submit a plan or to accept modification requested by the Department of Health will have a plan imposed on them.
It is anticipated that these all adult homes will need approximately 60 additional days to come into compliance with new reporting and recordkeeping requirements.
The time necessary to implement and complete the plan will depend on the plan submitted by the operator and is difficult to predict at this time.
Regulatory Flexibility Analysis
Effect of Rule:
Most of the 384 licensed adult homes in New York State are operated by small businesses as defined in Section 102 of the State Administrative Procedure Act. Approximately 61 licensed adult home operators will be required by the regulations to submit a compliance plan to the Department of Health. Two of these adult homes are operated by local governments.
Compliance Requirements:
Compliance requirements are generally the same for all operators of adult homes and transitional adult homes to which these regulations apply. Section 487.4 limits the number of residents with serious mental illness to less than 25 percent of the resident population, in all adult homes with a certified capacity of eighty or more. Section 487.13 requires operators of adult homes with a certified capacity of 80 or more in which the number of residents with serious mental illness is already 25 percent or more of the resident population ("transitional adult homes") to create and implement a compliance plan that is acceptable to the Department of Health to reduce that number to a level that is less than 25 percent of the resident population, over a reasonable period of time, through the lawful discharge of residents to alternative community settings with appropriate community services. The compliance plan must also specify how the operator of a transitional adult home will serve the needs of its mental health population while the reduction in population is being achieved, particularly with regard to ensuring the development of independent living skills, ensuring access to and quality of mental health services, encouraging community involvement and integration, and fostering a homelike atmosphere.
All adult home operators will be required to comply with Section 487.4, which is amended to set standards for the mental health evaluations that are currently required for some individuals seeking admission to adult homes, by requiring the mental health professionals conducting the evaluations to be approved by the Department of Health in consultation with the Office of Mental Health, and requiring those professionals to collect additional information about each prospective residents as part of the mental health evaluation. Mental health evaluations must be retained by adult home operators.
All adult home operators are currently required to submit a quarterly statistical information report to the Department of Health. These regulations set forth the information to be included in that report, which includes a census report with a roster of residents who are persons with serious mental illness and the discharge location of any resident discharged during the quarter, among other information. All adult homes will also be required to maintain a weekly roster of residents who are persons with serious mental illness.
Adult home operators must maintain all such information confidentially.
Professional Services:
No additional professional services will be required to comply with the proposed regulation.
Compliance Costs:
It is anticipated that compliance costs for adult homes and transitional adult homes operated by small businesses will be the same as or proportional to those operated by larger businesses. Amendments to the existing mental health evaluation process and minor changes to reporting and records posting could result in relatively minor additional costs. For transitional adult homes, there are likely to be additional costs associated with the development of compliance plans, but those costs should also be relatively minor. Any additional costs to transitional adult homes associated with implementing compliance plans will be dependent on the specific components of each compliance plan, which is subject to review and approval by the Department of Health. The estimated amount of lost net revenue to an operator of an adult home that is not able to replace a discharged resident is estimated at between four and five dollars per discharged resident per day.
Economic and Technological Feasibility:
No economic or technological barrier to the feasibility of compliance with these regulations by small businesses or local governments is anticipated.
Minimizing Adverse Impact:
These regulations will have the same impact on small business and local governments operating adult homes as they will on other operators of adult homes. Adult homes with a certified capacity of less than 80 residents do not qualify as "transitional adult homes."
Small Business and Local Government Participation:
The Department will meet the requirements of SAPA Section 202-b(6), in part, by publishing a notice of proposed rulemaking in the State Register prior to a comment period.
For rules that either establish or modify a violation or penalties associated with a violation:
No cure period was included in the rule because existing regulations already provide that all licensed adult home operators are afforded 30 days from the receipt of a written report citing violations to rectify those violations prior to the imposition of penalties.
Rural Area Flexibility Analysis
Types and Estimated Numbers of Rural Areas:
This rule applies uniformly throughout the state, including rural areas. Rural areas are defined as counties with a population less than 200,000 and counties with a population of 200,000 or greater that have towns with population densities of 150 persons or fewer per square mile. The following 43 counties have a population of less than 200,000 based upon the United States Census estimated county populations for 2010 (http://quickfacts.census.gov). All have adult homes, with the exception of the counties of Hamilton and Tioga.
Allegany County
Greene County
Schoharie County
Cattaraugus County
Hamilton County
Schuyler County
Cayuga County
Herkimer County
Seneca County
Chautauqua County
Jefferson County
St. Lawrence County
Chemung County
Lewis County
Steuben County
Chenango County
Livingston County
Sullivan County
Clinton County
Madison County
Tioga County
Columbia County
Montgomery County
Tompkins County
Cortland County
Ontario County
Ulster County
Delaware County
Orleans County
Warren County
Essex County
Oswego County
Washington County
Franklin County
Otsego County
Wayne County
Fulton County
Putnam County
Wyoming County
Genesee County
Rensselaer County
Yates County
Schenectady County
Transitional adult homes as defined in the proposed regulation are located in the following rural counties: Allegany, Cayuga, Genesee, Greene, Herkimer, Rensselaer and Sullivan. No transitional adult homes are located in towns with population densities of 150 persons or fewer per square mile in counties that have a population of 200,000 or greater.
Albany County
Monroe County
Orange County
Broome County
Niagara County
Saratoga County
Dutchess County
Oneida County
Suffolk County
Erie County
Onondaga County
Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services:
Section 487.4 limits the number of residents with serious mental illness to less than 25 percent of the resident population, in all adult homes with a certified capacity of eighty or more. Section 487.13 requires operators of adult homes with a certified capacity of 80 or more in which the number of residents with serious mental illness is already 25 percent or more of the resident population ("transitional adult homes") to create and implement a compliance plan that is acceptable to the Department of Health to reduce that number to a level that is less than 25 percent of the resident population, over a reasonable period of time, through the lawful discharge of residents to alternative community settings with appropriate community services. The compliance plan must also specify how the operator of a transitional adult home will serve the needs of its mental health population while the reduction in population is being achieved, particularly with regard to ensuring the development of independent living skills, ensuring access to and quality of mental health services, encouraging community involvement and integration, and fostering a homelike atmosphere.
All adult home operators will be required to comply with Section 487.4, which is amended to set standards for the mental health evaluations that are currently required for some individuals seeking admission to adult homes, by requiring the mental health professionals conducting the evaluations to be approved by the Department of Health in consultation with the Office of Mental Health, and requiring those professionals to collect additional information about each prospective residents as part of the mental health evaluation. Mental health evaluations must be retained by adult home operators.
All licensed adult home operators are currently required to submit a quarterly statistical information report to the Department of Health. These regulations set forth the information to be included in that report, which includes a census report with a roster of residents who are persons with serious mental illness and the discharge location of any resident discharged during the quarter, among other information. All adult homes will also be required to maintain a weekly roster of residents who are persons with serious mental illness.
Adult home operators must maintain all such information confidentially.
No professional services will be required to comply with the proposed regulation.
Costs:
It is anticipated that compliance costs for adult homes and transitional adult homes in rural areas will be the same as for those in other areas. Amendments to the existing mental health evaluation process and minor changes to reporting and records posting could result in relatively minor additional costs. For transitional adult homes, there are likely to be additional costs associated with the development of compliance plans, but those costs should also be relatively minor. Any additional costs to transitional adult homes associated with implementing compliance plans will be dependent on the specific components of each compliance plan, which are subject to review and approval by the Department of Health. The estimated amount of lost net revenue to an operator of a privately-owned adult home that is not able to replace a discharged resident is estimated at between four and five dollars per discharged resident per day.
Minimizing Adverse Impact:
It is not anticipated that compliance with these regulations will be more burdensome for adult home operators in rural areas than for operators of adult home operators in other areas of the State.
Rural Area Participation:
The Department will meet the requirements of SAPA § 202-bb(7), in part, by publishing a notice of proposed rulemaking in the State Register prior to a comment period.
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.
