§ 461-L — Assisted living program

§ 461-l. Assisted living program. 1. Definitions. As used in this\nsection, the following words shall have the following meanings:\n (a) "Assisted living program" means an entity or entities with\nidentical ownership, which are approved to operate pursuant to\nsubdivision three of this section and possesses a valid operating\ncertificate as an adult care facility, other than a shelter for adults,\na residence for adults or a family type home for adults, issued pursuant\nto this article and which possesses either: (i) a valid license as a\nhome care services agency issued pursuant to section thirty-six hundred\nfive of the public health law; or (ii) a valid certificate of approval\nas a certified home health agency issued pursuant to section thirty-six\nhundred six of the public health law; or (iii) valid authorization as a\nlong term home health care program issued pursuant to section thirty-six\nhundred ten of the public health law.\n (b) "Capitated rate of payment" means the rate established pursuant to\nsubdivision six of section thirty-six hundred fourteen of the public\nhealth law.\n (c) "Eligible applicant" means:\n (i) A single entity that is:\n (A) only a natural person or partnership composed only of natural\npersons, a not-for-profit corporation, a public corporation, a business\ncorporation other than a corporation whose shares are traded on a\nnational securities exchange or are regularly quoted on a national\nover-the-counter market or a subsidiary of such a corporation or a\ncorporation any of the stock of which is owned by another corporation, a\nlimited liability company provided that if a limited liability company\nhas a member that is a corporation, a limited liability company or a\npartnership, the shareholders of the member corporation, the members of\nthe member limited liability company, or the partners of the member\npartnership must be natural persons, a social services district or other\ngovernmental agency which possesses or is eligible pursuant to this\narticle to apply for an adult care facility operating certificate; and\n (B) either: (1) an entity which possesses or is eligible pursuant to\narticle thirty-six of the public health law to apply for licensure as a\nhome care services agency; (2) an entity which possesses valid\nauthorization as a long term home health care program; or (3) an entity\nwhich possesses a valid certificate of approval as a certified home\nhealth agency pursuant to article thirty-six of the public health law;\nor\n (ii) One or more entities listed in subparagraph (i) of this paragraph\nwith identical owners that, in combination, meet each of the criteria\nset forth by subparagraph (i) of this paragraph.\n (d) "Eligible person" means a person who:\n (i) requires more care and services to meet his or her daily health or\nfunctional needs than can be directly provided by an adult care facility\nand although medically eligible for placement in a residential health\ncare facility, can be appropriately cared for in an assisted living\nprogram and who would otherwise require placement in a residential\nhealth care facility due to factors which may include but need not be\nlimited to the lack of a home or a home environment in which to live and\nreceive services safely; and\n (ii) is categorized by the long-term care patient classification\nsystem as defined in regulations of the department of health as a person\nwho has a stable medical condition and who is able, with direction, to\ntake action sufficient to assure self-preservation in an emergency. In\nno event shall an eligible person include anyone in need of continual\nnursing or medical care, a person who is chronically bedfast, or anyone\nwho is cognitively, physically or medically impaired to such a degree\nthat his or her safety would be endangered.\n (e) "Services" shall mean all services for which full payment to an\nassisted living program is included in the capitated rate of payment,\nwhich shall include personal care services, home care services and such\nother services as the commissioner in conjunction with the commissioner\nof health determine by regulation must be included in the capitated rate\nof payment, and which the assisted living program shall provide, or\narrange for the provision of, through contracts with a social services\ndistrict, long term home health care programs, certified home health\nagencies, and other qualified providers.\n 2. General requirements. (a) Applicability. Unless expressly provided\notherwise in this article or article thirty-six of the public health\nlaw, an assisted living program shall be subject to any other law, rule\nor regulation governing adult care facilities, long term home health\ncare programs, certified home health agencies, licensed home care\nagencies or personal care services.\n (b) If an assisted living program itself is not a certified home\nhealth agency or long term home health care program, the assisted living\nprogram shall contract with one or more certified home health agencies\nand/or long term home health care programs for the provision of services\npursuant to article thirty-six of the public health law.\n (c) Participation by eligible persons. Participation in an assisted\nliving program by an eligible person shall be voluntary and eligible\npersons shall be provided with sufficient information regarding the\nprogram to make an informed choice concerning participation.\n (d) Patient services and care. (i) An assisted living program shall,\neither directly or through contract with a long term home health care\nprogram or certified home health agency, conduct an initial assessment\nto determine whether a person would otherwise require placement in a\nresidential health care facility if not for the availability of the\nassisted living program and is appropriate for admission to an assisted\nliving program.\n (ii) No person shall be determined eligible for and admitted to an\nassisted living program unless the assisted living program finds that\nthe person meets the criteria provided in paragraph (d) of subdivision\none of this section.\n (iii) Appropriate services shall be provided to an eligible person\nonly in accordance with a plan of care which is based upon an initial\nassessment and periodic reassessments conducted by an assisted living\nprogram, either directly or through contract with a long term home\nhealth care program or certified home health agency. A reassessment\nshall be conducted as frequently as is required to respond to changes in\nthe resident's condition and ensure immediate access to necessary and\nappropriate services by the resident, but in no event less frequently\nthan once every six months. No person shall be admitted to or retained\nin an assisted living program unless the person can be safely and\nadequately cared for with the provision of services determined by such\nassessment or reassessment.\n (iv) Eligible individuals shall be permitted to receive hospice\nservices from a provider under article forty of the public health law\nwhile continuing to reside in an adult care facility under this title\nand enrolled in the assisted living program, subject to the availability\nof federal financial participation. The commissioner shall make\nregulations and take other actions reasonably necessary and appropriate\nto implement this subparagraph.\n (e) Medical evaluations. Medical evaluations used to determine that\nthe assisted living program can support the physical, supervisory and\npsycho-social needs of a resident must be conducted within thirty days\nprior to the date of admission and signed by either a physician,\nphysician assistant or nurse practitioner.\n 3. Assisted living program approval. (a) An eligible applicant\nproposing to operate an assisted living program shall submit an\napplication to the department. Upon receipt, the department shall\ntransmit a copy of the application and accompanying documents to the\ndepartment of health. Such application shall be in a format and a\nquantity determined by the department and shall include, but not be\nlimited to:\n (i) a copy of or an application for an adult care facility operating\ncertificate;\n (ii) a copy of or an application for a home care services agency\nlicense or a copy of a certificate for a certified home health agency or\nauthorization as a long term home health care program;\n (iii) a copy of a proposed contract with a social services district or\nin a social services district with a population of one million or more,\na copy of a proposed contract with the social services district or the\ndepartment;\n (iv) if the applicant is not a long term home health care program or\ncertified home health agency, a copy of a proposed contract with a long\nterm home health care program or certified home health agency for the\nprovisions of services in accordance with article thirty-six of the\npublic health law; and\n (v) a detailed description of the proposed program including budget,\nstaffing and services.\n (b) If the application for the proposed program includes an\napplication for licensure as a home care service agency, the department\nof health shall forward the application for the proposed program and\naccompanying documents to the public health and health planning council\nfor its written approval in accordance with the provisions of section\nthirty-six hundred five of the public health law.\n (c) An application for an assisted living program shall not be\napproved unless the commissioner is satisfied as to:\n (i) the character, competence and standing in the community of the\noperator of the adult care facility;\n (ii) the financial responsibility of the operator of the adult care\nfacility;\n (iii) that the buildings, equipment, staff, standards of care and\nrecords of the adult care facility to be employed in the operation\ncomply with applicable law, rule and regulation;\n (iv) the commissioner of health is satisfied that the licensed home\ncare agency has received the written approval of the public health and\nhealth planning council as required by paragraph (b) of this subdivision\nand the equipment, personnel, rules, standards of care, and home care\nservices provided by the licensed home care agency and certified home\nhealth agency or long term home health care program are fit and adequate\nand will be provided in the manner required by article thirty-six of the\npublic health law and the rules and regulations thereunder; and\n (v) the commissioner and the commissioner of health are satisfied as\nto the public need for the assisted living program.\n (d) The department shall not approve an application for an assisted\nliving program for any eligible applicant who does not meet the\nrequirements of this article, including but not limited to, an eligible\napplicant who is already or within the past ten years has been an\nincorporator, director, sponsor, principal stockholder, member or owner\nof any adult care facility which has been issued an operating\ncertificate by the board or the department, or of a halfway house,\nhostel or other residential facility or institution for the care,\ncustody or treatment of the mentally disabled which is subject to\napproval by an office of the department of mental hygiene, or of any\nresidential health care facility or home care agency as defined in the\npublic health law, unless the department, in conjunction with the\ndepartment of health, finds by substantial evidence as to each such\napplicant that a substantially consistent high level of care has been\nrendered in each such facility or institution under which such person is\nor was affiliated. For the purposes of this paragraph, there may be a\nfinding that a substantially consistent high level of care has been\nrendered despite a record of violations of applicable rules and\nregulations, if such violations (i) did not threaten to directly affect\nthe health, safety or welfare of any patient or resident, and (ii) were\npromptly corrected and not recurrent.\n (e) The commissioner of health shall provide written notice of\napproval or disapproval of portions of the proposed application\nconcerning a licensed home care agency, certified home health agency or\nlong term home health care program, and, where applicable, of the\napproval or disapproval of the public health and health planning council\nto the commissioner. If an application receives all the necessary\napprovals, the commissioner shall notify the applicant in writing. The\ncommissioner's written approval shall constitute authorization to\noperate an assisted living program.\n (f) No assisted living program may be operated without the written\napproval of the department, the department of health and, where\napplicable, the public health and health planning council.\n (g) Notwithstanding any other provision of law to the contrary, any\nassisted living program having less than seventy-five authorized bed\nslots, located in a county with a population of more than one hundred\nten thousand and less than one hundred fifty thousand persons based upon\nthe decennial federal census for the year two thousand, and which at any\npoint in time is unable to accommodate individuals awaiting placement\ninto the assisted living program, shall be authorized to increase the\nnumber of assisted living beds available for a specified period of time\nas part of a demonstration program by up to thirty percent of its\napproved bed level; provided, however, that such program shall otherwise\nsatisfy all other assisted living program requirements as set forth in\nthis section. In addition, any program which receives such authorization\nand which at any point on or after July first, two thousand five is\nunable to accommodate individuals awaiting placement into the assisted\nprogram, shall be authorized to further increase the number of assisted\nliving beds available as part of this demonstration program by up to\ntwenty-five percent of its bed level as of July first, two thousand\nfive; provided, however, that such program shall otherwise satisfy all\nother assisted living program requirements as set forth in this section.\n (h) The commissioner is authorized to add one thousand five hundred\nassisted living program beds to the gross number of assisted living\nprogram beds having been determined to be available as of April first,\ntwo thousand seven.\n (i) (a) The commissioner of health is authorized to add up to six\nthousand assisted living program beds to the gross number of assisted\nliving program beds having been determined to be available as of April\nfirst, two thousand nine. Nothing herein shall be interpreted as\nprohibiting any eligible applicant from submitting an application for\nany assisted living program bed so added. The commissioner of health\nshall not be required to review on a comparative basis applications\nsubmitted for assisted living program beds made available under this\nparagraph. The commissioner of health shall only authorize the addition\nof six thousand beds pursuant to a seven year plan ending prior to\nJanuary first, two thousand seventeen.\n (b) The commissioner of health shall provide an annual written report\nto the chair of the senate standing committee on health and the chair of\nthe assembly health committee no later than January first of each year.\nSuch report shall include, but not be limited to, the number of assisted\nliving program beds made available pursuant to this section by county,\nthe total number of assisted living program beds by county, the number\nof vacant assisted living program beds by county, and any other\ninformation deemed necessary and appropriate.\n (j) The commissioner of health is authorized to add up to four\nthousand five hundred assisted living program beds to the gross number\nof assisted living program beds having been determined to be available\nas of April first, two thousand twelve. Applicants eligible to submit an\napplication under this paragraph shall be limited to adult homes\nestablished pursuant to section four hundred sixty-one-b of this article\nwith, as of September first, two thousand twelve, a certified capacity\nof eighty beds or more in which twenty-five percent or more of the\nresident population are persons with serious mental illness as defined\nin regulations promulgated by the commissioner of health. The\ncommissioner of health shall not be required to review on a comparative\nbasis applications submitted for assisted living program beds made\navailable under this paragraph.\n (k) (i) Existing assisted living program providers may apply to the\ndepartment of health for approval to add up to nine additional assisted\nliving program beds that do not require major renovation or\nconstruction. Eligible applicants are those that agree to dedicate such\nbeds to serve only individuals receiving medical assistance, are in good\nstanding with the department of health, and are in compliance with\nappropriate state and local requirements as determined by the department\nof health.\n (ii) Existing assisted living program providers licensed on or before\nApril first, two thousand eighteen may submit applications under this\nparagraph beginning no later than June thirtieth, two thousand eighteen\nand until a deadline to be determined by the department of health.\nExisting assisted living program providers licensed on or before April\nfirst, two thousand twenty may submit such applications beginning no\nlater than June thirtieth, two thousand twenty and until a deadline to\nbe determined by the department of health.\n (iii) The number of additional assisted living program beds approved\nunder this paragraph shall be based on the total number of previously\nawarded beds either withdrawn by applicants or denied by the department\nof health. The commissioner of health shall utilize an expedited review\nprocess allowing certification of the additional beds within ninety days\nof such department's receipt of a satisfactory application.\n (l) (i) The commissioner of health is authorized to solicit and award\napplications for up to a total of five hundred new assisted living\nprogram beds in those counties where there is one or no assisted living\nprogram providers, pursuant to criteria to be determined by the\ncommissioner.\n (ii) The commissioner of health is authorized to solicit and award\napplications for up to five hundred new assisted living program beds in\ncounties where utilization of existing assisted living program beds\nexceeds eighty-five percent. All applicants shall comply with federal\nhome and community-based settings requirements, as set forth in 42 CFR\nPart 441 Subpart G. To be eligible for an award, an applicant must agree\nto:\n (A) Dedicate such beds to serve only individuals receiving medical\nassistance;\n (B) Develop and execute collaborative agreements within twenty-four\nmonths of an application being made to the department of health, in\naccordance with guidance to be published by such department, between at\nleast one of each of the following entities: an adult care facility; a\nresidential health care facility; and a general hospital; and\n (C) Enter into an agreement with an existing managed care entity.\n (iii) The commissioner of health is authorized to award any assisted\nliving program beds for which a solicitation is made under subparagraph\n(i) of this paragraph, but which are not awarded, to applicants that\nmeet all applicable criteria pursuant to a solicitation made under\nsubparagraph (ii) of this paragraph.\n (m) Beginning April first, two thousand twenty-five, additional\nassisted living program beds shall be approved on a case by case basis\nwhenever the commissioner of health is satisfied that public need exists\nat the time and place and under circumstances proposed by the applicant.\n (i) The consideration of public need may take into account factors\nsuch as, but not limited to, regional occupancy rates for adult care\nfacilities and assisted living program occupancy rates and the extent to\nwhich the project will serve individuals receiving medical assistance.\n (ii) Existing assisted living program providers may apply for approval\nto add up to nine additional assisted living program beds that do not\nrequire major renovation or construction under an expedited review\nprocess. The expedited review process is available to applicants that\nare in good standing with the department of health, and are in\ncompliance with appropriate state and local requirements as determined\nby the department of health. The expedited review process shall allow\ncertification of the additional beds for which the commissioner of\nhealth is satisfied that public need exists within ninety days of such\ndepartment's receipt of a satisfactory application.\n (n) The commissioner of health is authorized to create a program to\nsubsidize the cost of assisted living for those individuals living with\nAlzheimer's disease and dementia who are not eligible for medical\nassistance pursuant to title eleven of article five of this chapter and\nreside in a special needs assisted living residence certified under\nsection forty-six hundred fifty-five of the public health law. Subject\nto appropriations, the program shall authorize vouchers to individuals\nthrough an application process and pay for up to seventy-five percent of\nthe average private pay rate in the respective region. The commissioner\nof health may propose rules and regulations to effectuate this\nprovision.\n 4. Revocation, suspension, limitation or annulment. Authorization to\noperate an assisted living program may be revoked, suspended, limited or\nannulled by the commissioner in accordance with the provisions of this\narticle if the adult care facility fails to comply with applicable\nprovisions of this chapter or rules or regulations promulgated hereunder\nor by the commissioner of health in accordance with the provisions of\narticle thirty-six of the public health law if the licensed home care\nservice agency, certified home health agency or long term home health\ncare program fails to comply with the provisions of article thirty-six\nof the public health law or rules or regulations promulgated thereunder.\n 5. Rules and regulations. The commissioner and the commissioner of\nhealth shall jointly promulgate any rules and regulations necessary to\neffectuate the provisions and purposes of this section and section\nthirty-six hundred fourteen of the public health law. Such regulations\nshall provide that the department and the department of health shall\ncoordinate their surveillance and enforcement efforts, including but not\nlimited to, on-site surveys of assisted living programs.\n 6. Report. The commissioner and the commissioner of health shall\nsubmit a joint report to the governor, the temporary president of the\nsenate, the speaker of the assembly, the state hospital review and\nplanning council and health systems agencies on or before March first,\nnineteen hundred ninety-three which shall include a description of the\nprograms, including the number of programs established and authorized by\ngeographic area, the cost of the program, including the savings to state\nand local governments, the number of persons served by the program by\ngeographic area, a description of the demographic and clinical\ncharacteristics of patients served by the program and an evaluation of\nthe quality of care provided to persons served by the program. Such\nreport shall be utilized by the department of health in estimating\nstatewide need for long term care beds for the planning target year next\nsucceeding nineteen hundred ninety-three. In addition, the state\nhospital review and planning council shall consider the results of such\nreport in approving the methodology for determining statewide need for\nlong term care beds for the planning target year next succeeding\nnineteen hundred ninety-three.\n