NY Soc Serv L § 461-L (2021)
2021 New York Laws SOS - Social Services Article 7 - Residential Care Programs for Adults and Children Title 2 - Residential Programs for Adults 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.   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-three, 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. The program shall authorize  up  to  two  hundred  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.