N.Y. Social Services Law § 461-l: Assisted living program

§ 461-l. Assisted living program. 1. Definitions. As used in this

section, the following words shall have the following meanings:

(a) "Assisted living program" means an entity or entities with

identical ownership, which are approved to operate pursuant to

subdivision three of this section and possesses a valid operating

certificate as an adult care facility, other than a shelter for adults,

a residence for adults or a family type home for adults, issued pursuant

to this article and which possesses either: (i) a valid license as a

home care services agency issued pursuant to section thirty-six hundred

five of the public health law; or (ii) a valid certificate of approval

as a certified home health agency issued pursuant to section thirty-six

hundred six of the public health law; or (iii) valid authorization as a

long term home health care program issued pursuant to section thirty-six

hundred ten of the public health law.

(b) "Capitated rate of payment" means the rate established pursuant to

subdivision six of section thirty-six hundred fourteen of the public

health law.

(c) "Eligible applicant" means:

(i) A single entity that is:

(A) only a natural person or partnership composed only of natural

persons, a not-for-profit corporation, a public corporation, a business

corporation other than a corporation whose shares are traded on a

national securities exchange or are regularly quoted on a national

over-the-counter market or a subsidiary of such a corporation or a

corporation any of the stock of which is owned by another corporation, a

limited liability company provided that if a limited liability company

has a member that is a corporation, a limited liability company or a

partnership, the shareholders of the member corporation, the members of

the member limited liability company, or the partners of the member

partnership must be natural persons, a social services district or other

governmental agency which possesses or is eligible pursuant to this

article to apply for an adult care facility operating certificate; and

(B) either: (1) an entity which possesses or is eligible pursuant to

article thirty-six of the public health law to apply for licensure as a

home care services agency; (2) an entity which possesses valid

authorization as a long term home health care program; or (3) an entity

which possesses a valid certificate of approval as a certified home

health agency pursuant to article thirty-six of the public health law;

or

(ii) One or more entities listed in subparagraph (i) of this paragraph

with identical owners that, in combination, meet each of the criteria

set forth by subparagraph (i) of this paragraph.

(d) "Eligible person" means a person who:

(i) requires more care and services to meet his or her daily health or

functional needs than can be directly provided by an adult care facility

and although medically eligible for placement in a residential health

care facility, can be appropriately cared for in an assisted living

program and who would otherwise require placement in a residential

health care facility due to factors which may include but need not be

limited to the lack of a home or a home environment in which to live and

receive services safely; and

(ii) is categorized by the long-term care patient classification

system as defined in regulations of the department of health as a person

who has a stable medical condition and who is able, with direction, to

take action sufficient to assure self-preservation in an emergency. In

no event shall an eligible person include anyone in need of continual

nursing or medical care, a person who is chronically bedfast, or anyone

who is cognitively, physically or medically impaired to such a degree

that his or her safety would be endangered.

(e) "Services" shall mean all services for which full payment to an

assisted living program is included in the capitated rate of payment,

which shall include personal care services, home care services and such

other services as the commissioner in conjunction with the commissioner

of health determine by regulation must be included in the capitated rate

of payment, and which the assisted living program shall provide, or

arrange for the provision of, through contracts with a social services

district, long term home health care programs, certified home health

agencies, and other qualified providers.

2. General requirements. (a) Applicability. Unless expressly provided

otherwise in this article or article thirty-six of the public health

law, an assisted living program shall be subject to any other law, rule

or regulation governing adult care facilities, long term home health

care programs, certified home health agencies, licensed home care

agencies or personal care services.

(b) If an assisted living program itself is not a certified home

health agency or long term home health care program, the assisted living

program shall contract with one or more certified home health agencies

and/or long term home health care programs for the provision of services

pursuant to article thirty-six of the public health law.

(c) Participation by eligible persons. Participation in an assisted

living program by an eligible person shall be voluntary and eligible

persons shall be provided with sufficient information regarding the

program to make an informed choice concerning participation.

(d) Patient services and care. (i) An assisted living program shall,

either directly or through contract with a long term home health care

program or certified home health agency, conduct an initial assessment

to determine whether a person would otherwise require placement in a

residential health care facility if not for the availability of the

assisted living program and is appropriate for admission to an assisted

living program.

(ii) No person shall be determined eligible for and admitted to an

assisted living program unless the assisted living program finds that

the person meets the criteria provided in paragraph (d) of subdivision

one of this section.

(iii) Appropriate services shall be provided to an eligible person

only in accordance with a plan of care which is based upon an initial

assessment and periodic reassessments conducted by an assisted living

program, either directly or through contract with a long term home

health care program or certified home health agency. A reassessment

shall be conducted as frequently as is required to respond to changes in

the resident's condition and ensure immediate access to necessary and

appropriate services by the resident, but in no event less frequently

than once every six months. No person shall be admitted to or retained

in an assisted living program unless the person can be safely and

adequately cared for with the provision of services determined by such

assessment or reassessment.

(iv) Eligible individuals shall be permitted to receive hospice

services from a provider under article forty of the public health law

while continuing to reside in an adult care facility under this title

and enrolled in the assisted living program, subject to the availability

of federal financial participation. The commissioner shall make

regulations and take other actions reasonably necessary and appropriate

to implement this subparagraph.

(e) Medical evaluations. Medical evaluations used to determine that

the assisted living program can support the physical, supervisory and

psycho-social needs of a resident must be conducted within thirty days

prior to the date of admission and signed by either a physician,

physician assistant or nurse practitioner.

3. Assisted living program approval. (a) An eligible applicant

proposing to operate an assisted living program shall submit an

application to the department. Upon receipt, the department shall

transmit a copy of the application and accompanying documents to the

department of health. Such application shall be in a format and a

quantity determined by the department and shall include, but not be

limited to:

(i) a copy of or an application for an adult care facility operating

certificate;

(ii) a copy of or an application for a home care services agency

license or a copy of a certificate for a certified home health agency or

authorization as a long term home health care program;

(iii) a copy of a proposed contract with a social services district or

in a social services district with a population of one million or more,

a copy of a proposed contract with the social services district or the

department;

(iv) if the applicant is not a long term home health care program or

certified home health agency, a copy of a proposed contract with a long

term home health care program or certified home health agency for the

provisions of services in accordance with article thirty-six of the

public health law; and

(v) a detailed description of the proposed program including budget,

staffing and services.

(b) If the application for the proposed program includes an

application for licensure as a home care service agency, the department

of health shall forward the application for the proposed program and

accompanying documents to the public health and health planning council

for its written approval in accordance with the provisions of section

thirty-six hundred five of the public health law.

(c) An application for an assisted living program shall not be

approved unless the commissioner is satisfied as to:

(i) the character, competence and standing in the community of the

operator of the adult care facility;

(ii) the financial responsibility of the operator of the adult care

facility;

(iii) that the buildings, equipment, staff, standards of care and

records of the adult care facility to be employed in the operation

comply with applicable law, rule and regulation;

(iv) the commissioner of health is satisfied that the licensed home

care agency has received the written approval of the public health and

health planning council as required by paragraph (b) of this subdivision

and the equipment, personnel, rules, standards of care, and home care

services provided by the licensed home care agency and certified home

health agency or long term home health care program are fit and adequate

and will be provided in the manner required by article thirty-six of the

public health law and the rules and regulations thereunder; and

(v) the commissioner and the commissioner of health are satisfied as

to the public need for the assisted living program.

(d) The department shall not approve an application for an assisted

living program for any eligible applicant who does not meet the

requirements of this article, including but not limited to, an eligible

applicant who is already or within the past ten years has been an

incorporator, director, sponsor, principal stockholder, member or owner

of any adult care facility which has been issued an operating

certificate by the board or the department, or of a halfway house,

hostel or other residential facility or institution for the care,

custody or treatment of the mentally disabled which is subject to

approval by an office of the department of mental hygiene, or of any

residential health care facility or home care agency as defined in the

public health law, unless the department, in conjunction with the

department of health, finds by substantial evidence as to each such

applicant that a substantially consistent high level of care has been

rendered in each such facility or institution under which such person is

or was affiliated. For the purposes of this paragraph, there may be a

finding that a substantially consistent high level of care has been

rendered despite a record of violations of applicable rules and

regulations, if such violations (i) did not threaten to directly affect

the health, safety or welfare of any patient or resident, and (ii) were

promptly corrected and not recurrent.

(e) The commissioner of health shall provide written notice of

approval or disapproval of portions of the proposed application

concerning a licensed home care agency, certified home health agency or

long term home health care program, and, where applicable, of the

approval or disapproval of the public health and health planning council

to the commissioner. If an application receives all the necessary

approvals, the commissioner shall notify the applicant in writing. The

commissioner's written approval shall constitute authorization to

operate an assisted living program.

(f) No assisted living program may be operated without the written

approval of the department, the department of health and, where

applicable, the public health and health planning council.

(g) Notwithstanding any other provision of law to the contrary, any

assisted living program having less than seventy-five authorized bed

slots, located in a county with a population of more than one hundred

ten thousand and less than one hundred fifty thousand persons based upon

the decennial federal census for the year two thousand, and which at any

point in time is unable to accommodate individuals awaiting placement

into the assisted living program, shall be authorized to increase the

number of assisted living beds available for a specified period of time

as part of a demonstration program by up to thirty percent of its

approved bed level; provided, however, that such program shall otherwise

satisfy all other assisted living program requirements as set forth in

this section. In addition, any program which receives such authorization

and which at any point on or after July first, two thousand five is

unable to accommodate individuals awaiting placement into the assisted

program, shall be authorized to further increase the number of assisted

living beds available as part of this demonstration program by up to

twenty-five percent of its bed level as of July first, two thousand

five; provided, however, that such program shall otherwise satisfy all

other assisted living program requirements as set forth in this section.

(h) The commissioner is authorized to add one thousand five hundred

assisted living program beds to the gross number of assisted living

program beds having been determined to be available as of April first,

two thousand seven.

(i) (a) The commissioner of health is authorized to add up to six

thousand assisted living program beds to the gross number of assisted

living program beds having been determined to be available as of April

first, two thousand nine. Nothing herein shall be interpreted as

prohibiting any eligible applicant from submitting an application for

any assisted living program bed so added. The commissioner of health

shall not be required to review on a comparative basis applications

submitted for assisted living program beds made available under this

paragraph. The commissioner of health shall only authorize the addition

of six thousand beds pursuant to a seven year plan ending prior to

January first, two thousand seventeen.

(b) The commissioner of health shall provide an annual written report

to the chair of the senate standing committee on health and the chair of

the assembly health committee no later than January first of each year.

Such report shall include, but not be limited to, the number of assisted

living program beds made available pursuant to this section by county,

the total number of assisted living program beds by county, the number

of vacant assisted living program beds by county, and any other

information deemed necessary and appropriate.

(j) The commissioner of health is authorized to add up to four

thousand five hundred assisted living program beds to the gross number

of assisted living program beds having been determined to be available

as of April first, two thousand twelve. Applicants eligible to submit an

application under this paragraph shall be limited to adult homes

established pursuant to section four hundred sixty-one-b of this article

with, as of September first, two thousand twelve, a certified capacity

of eighty beds or more in which twenty-five percent or more of the

resident population are persons with serious mental illness as defined

in regulations promulgated by the commissioner of health. The

commissioner of health shall not be required to review on a comparative

basis applications submitted for assisted living program beds made

available under this paragraph.

(k) (i) Existing assisted living program providers may apply to the

department of health for approval to add up to nine additional assisted

living program beds that do not require major renovation or

construction. Eligible applicants are those that agree to dedicate such

beds to serve only individuals receiving medical assistance, are in good

standing with the department of health, and are in compliance with

appropriate state and local requirements as determined by the department

of health.

(ii) Existing assisted living program providers licensed on or before

April first, two thousand eighteen may submit applications under this

paragraph beginning no later than June thirtieth, two thousand eighteen

and until a deadline to be determined by the department of health.

Existing assisted living program providers licensed on or before April

first, two thousand twenty may submit such applications beginning no

later than June thirtieth, two thousand twenty and until a deadline to

be determined by the department of health.

(iii) The number of additional assisted living program beds approved

under this paragraph shall be based on the total number of previously

awarded beds either withdrawn by applicants or denied by the department

of health. The commissioner of health shall utilize an expedited review

process allowing certification of the additional beds within ninety days

of such department's receipt of a satisfactory application.

(l) (i) The commissioner of health is authorized to solicit and award

applications for up to a total of five hundred new assisted living

program beds in those counties where there is one or no assisted living

program providers, pursuant to criteria to be determined by the

commissioner.

(ii) The commissioner of health is authorized to solicit and award

applications for up to five hundred new assisted living program beds in

counties where utilization of existing assisted living program beds

exceeds eighty-five percent. All applicants shall comply with federal

home and community-based settings requirements, as set forth in 42 CFR

Part 441 Subpart G. To be eligible for an award, an applicant must agree

to:

(A) Dedicate such beds to serve only individuals receiving medical

assistance;

(B) Develop and execute collaborative agreements within twenty-four

months of an application being made to the department of health, in

accordance with guidance to be published by such department, between at

least one of each of the following entities: an adult care facility; a

residential health care facility; and a general hospital; and

(C) Enter into an agreement with an existing managed care entity.

(iii) The commissioner of health is authorized to award any assisted

living program beds for which a solicitation is made under subparagraph

(i) of this paragraph, but which are not awarded, to applicants that

meet all applicable criteria pursuant to a solicitation made under

subparagraph (ii) of this paragraph.

(m) Beginning April first, two thousand twenty-five, additional

assisted living program beds shall be approved on a case by case basis

whenever the commissioner of health is satisfied that public need exists

at the time and place and under circumstances proposed by the applicant.

(i) The consideration of public need may take into account factors

such as, but not limited to, regional occupancy rates for adult care

facilities and assisted living program occupancy rates and the extent to

which the project will serve individuals receiving medical assistance.

(ii) Existing assisted living program providers may apply for approval

to add up to nine additional assisted living program beds that do not

require major renovation or construction under an expedited review

process. The expedited review process is available to applicants that

are in good standing with the department of health, and are in

compliance with appropriate state and local requirements as determined

by the department of health. The expedited review process shall allow

certification of the additional beds for which the commissioner of

health is satisfied that public need exists within ninety days of such

department's receipt of a satisfactory application.

(n) The commissioner of health is authorized to create a program to

subsidize the cost of assisted living for those individuals living with

Alzheimer's disease and dementia who are not eligible for medical

assistance pursuant to title eleven of article five of this chapter and

reside in a special needs assisted living residence certified under

section forty-six hundred fifty-five of the public health law. Subject

to appropriations, the program shall authorize vouchers to individuals

through an application process and pay for up to seventy-five percent of

the average private pay rate in the respective region. The commissioner

of health may propose rules and regulations to effectuate this

provision.

4. Revocation, suspension, limitation or annulment. Authorization to

operate an assisted living program may be revoked, suspended, limited or

annulled by the commissioner in accordance with the provisions of this

article if the adult care facility fails to comply with applicable

provisions of this chapter or rules or regulations promulgated hereunder

or by the commissioner of health in accordance with the provisions of

article thirty-six of the public health law if the licensed home care

service agency, certified home health agency or long term home health

care program fails to comply with the provisions of article thirty-six

of the public health law or rules or regulations promulgated thereunder.

5. Rules and regulations. The commissioner and the commissioner of

health shall jointly promulgate any rules and regulations necessary to

effectuate the provisions and purposes of this section and section

thirty-six hundred fourteen of the public health law. Such regulations

shall provide that the department and the department of health shall

coordinate their surveillance and enforcement efforts, including but not

limited to, on-site surveys of assisted living programs.

6. Report. The commissioner and the commissioner of health shall

submit a joint report to the governor, the temporary president of the

senate, the speaker of the assembly, the state hospital review and

planning council and health systems agencies on or before March first,

nineteen hundred ninety-three which shall include a description of the

programs, including the number of programs established and authorized by

geographic area, the cost of the program, including the savings to state

and local governments, the number of persons served by the program by

geographic area, a description of the demographic and clinical

characteristics of patients served by the program and an evaluation of

the quality of care provided to persons served by the program. Such

report shall be utilized by the department of health in estimating

statewide need for long term care beds for the planning target year next

succeeding nineteen hundred ninety-three. In addition, the state

hospital review and planning council shall consider the results of such

report in approving the methodology for determining statewide need for

long term care beds for the planning target year next succeeding

nineteen hundred ninety-three.