2023 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.
(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.
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.