Section 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

  chairfast,  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 an

  assisted 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.
    (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 services
  provided 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.
    (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.
    (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.
    * (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, 2010
    (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.