461-L - Assisted living program. - New York Statutes

§ 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 orchairfast, 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, a long term home health care program or a certified home health agency, 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 a certified home health agency or long term home health care program for the provision of services pursuant to article thirty-six of the public health law. An assisted living program shall contract with no more than one certified home health agency or long term home health care program, provided, however, that the commissioner and the commissioner of health may approve additional contracts for good cause. (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, or if the assisted living program itself does not include a long term home health care program or certified home health agency an assisted living program and a long term home health care program or certified home health agency, shall 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. The assisted living program shall forward such assessment of a medical assistance applicant or recipient to the appropriate social services district. (ii) No person shall be determined eligible for and admitted to an assisted living program unless the assisted living program and the long term home health care program or the certified home health care agency agree, based on the initial assessment, that the person meets the criteria provided in paragraph (d) of subdivision one of this section and unless the appropriate social services district prior authorizes payment for services. (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, or if the assisted living program itself does not include a long term home health care program or certified home health agency an assisted living program and 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 anassisted living program unless the assisted living program, and long term home health care program or certified home health agency are in agreement that the person can be safely and adequately cared for with the provision of services determined by such assessment or reassessment. (iv) To the maximum extent possible and consistent with staffing standards, assisted living programs shall achieve economic efficiencies through the provision of shared services including, but not limited to, shared aides. 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 council for its written approval in accordance with the provisions of section thirty-six hundred five of the public health law. * NB Effective until December 1, 2010 * (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. * NB Effective December 1, 2010 * (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 council as required by paragraph (b) of this subdivision and the equipment, personnel, rules, standards of care, and home care servicesprovided by a 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. * NB Effective until December 1, 2010 * (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. * NB Effective December 1, 2010 (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 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. * NB Effective until December 1, 2010* (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. * NB Effective December 1, 2010 * (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 council. * NB Effective until December 1, 2010 * (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. * NB Effective December 1, 2010 * (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 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. Further, any such program which receives authorization to increase the number of assisted living beds available pursuant to this paragraph shall submit a report annually to the commissioner of health, the governor, the temporary president of the senate and the speaker of the assembly, which contains the cost of the program, including the savings to state and local governments, the number of persons served by the program by county, 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. After release of the second report by any such program if the findings of the report do not reflect a cost savings to the state and local governments, the program may be terminated immediately by the commissioner of health. Within thirty days of the termination of a demonstration program, the commissioner of health shall submit a report to the governor, the temporary president of the senate and the speaker of the assembly which outlines the reasons for early termination of such program. * NB Repealed September 1, 2013 (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) 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, provided that, for each assisted living program bed so added, a nursing home bed has been decertified upon the application of the nursing home operator or that the commissioner of health has found pursuant to subdivision six of section twenty-eight hundred six of the public health law that any assisted living program bed so added would serve as a more appropriate alternative to a certified nursing home bed and has accordingly limited or revoked the operating certificate of the nursing home providing that certified nursing home bed, provided further that 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 five year plan. 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.