Establishes a certificate of need process for assisted living programs; establishes a moratorium on the establishment of new assisted living programs whenever the director of the budget determines that the addition of new assisted living program beds would have a net negative fiscal impact on the medical assistance program.
STATE OF NEW YORK
________________________________________________________________________
9562
IN ASSEMBLY
January 23, 2018
___________
Introduced by M. of A. LUPARDO -- read once and referred to the Commit-
tee on Health
AN ACT to amend the social services law, in relation to establishing a
certificate of need process for the assisted living program; and to
establish a moratorium on the authorization of new assisted living
programs in certain cases
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 461-l of the social services law,
2 as added by chapter 165 of the laws of 1991, subparagraph (iii) of para-
3 graph (a) as amended by chapter 438 of the laws of 1994, paragraphs (b),
4 (c), (e) and (f) as amended by section 82 of part A of chapter 58 of the
5 laws of 2010, paragraph (d) as amended by chapter 591 of the laws of
6 1999, paragraph (g) as amended by chapter 397 of the laws of 2012, para-
7 graph (h) as added by section 20 of part B of chapter 58 of the laws of
8 2007, paragraph (i) as amended by section 67 of part C of chapter 60 of
9 the laws of 2014, and paragraph (j) as added by section 70 of part A of
10 chapter 56 of the laws of 2013, is amended to read as follows:
11 3. Assisted living program approval. (a) An eligible applicant propos-
12 ing to operate an assisted living program or increase the number of beds
13 within an existing program shall submit an application to the [depart-
14 ment. Upon receipt, the department shall transmit a copy of the applica-
15 tion and accompanying documents to the] department of health. Such
16 application shall be in a format and a quantity determined by the
17 department of health and shall include, but not be limited to:
18 (i) a copy of or an application for an adult care facility operating
19 certificate;
20 (ii) a copy of or an application for a home care services agency
21 license or a copy of a certificate for a certified home health agency or
22 authorization as a long term home health care program;
23 (iii) a copy of a proposed contract with a social services district or
24 in a social services district with a population of one million or more,
25 a copy of a proposed contract with the social services district or the
26 department;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11424-03-8
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1 (iv) if the applicant is not a long term home health care program or
2 certified home health agency, a copy of a proposed contract with a long
3 term home health care program or certified home health agency for the
4 provisions of services in accordance with article thirty-six of the
5 public health law; and
6 (v) a detailed description of the proposed program including budget,
7 staffing and services.
8 (b) [If the application for the proposed program includes an applica-
9 tion for licensure as a home care service agency, the] The department of
10 health shall forward the application for the proposed program and accom-
11 panying documents to the public health and health planning council for
12 its written approval in accordance with this subdivision and the
13 provisions of section thirty-six hundred five of the public health law.
14 (c) An application for an assisted living program shall not be
15 approved unless the commissioner is satisfied as to:
16 (i) the character, competence and standing in the community of the
17 operator of the adult care facility;
18 (ii) the financial responsibility of the operator of the adult care
19 facility;
20 (iii) that the buildings, equipment, staff, standards of care and
21 records of the adult care facility to be employed in the operation
22 comply with applicable law, rule and regulation;
23 (iv) the commissioner of health is satisfied that the assisted living
24 program and the licensed home care agency has received the written
25 approval of the public health and health planning council as required by
26 paragraph (b) of this subdivision and the equipment, personnel, rules,
27 standards of care, and home care services provided by the licensed home
28 care agency and certified home health agency or long term home health
29 care program are fit and adequate and will be provided in the manner
30 required by article thirty-six of the public health law and the rules
31 and regulations thereunder; and
32 (v) [the commissioner and] the commissioner of health and the public
33 health and health planning council are satisfied as to the public need
34 for the assisted living program beds being proposed after giving consid-
35 eration to the relative concentration of assisted living program beds
36 and other long term care resources and capacity in existence in the area
37 to be served.
38 (d) The department of health shall not approve an application for an
39 assisted living program or an expansion of an existing program for any
40 eligible applicant who does not meet the requirements of this article,
41 including but not limited to, an eligible applicant who is already or
42 within the past ten years has been an incorporator, director, sponsor,
43 principal stockholder, member or owner of any adult care facility which
44 has been issued an operating certificate by the board or the department,
45 or of a halfway house, hostel or other residential facility or institu-
46 tion for the care, custody or treatment of the mentally disabled which
47 is subject to approval by an office of the department of mental hygiene,
48 or of any residential health care facility or home care agency as
49 defined in the public health law, unless [the department, in conjunction
50 with the department of health,] it finds by substantial evidence as to
51 each such applicant that a substantially consistent high level of care
52 has been rendered in each such facility or institution under which such
53 person is or was affiliated. For the purposes of this paragraph, there
54 may be a finding that a substantially consistent high level of care has
55 been rendered despite a record of violations of applicable rules and
56 regulations, if such violations (i) did not threaten to directly affect
A. 9562 3
1 the health, safety or welfare of any patient or resident, and (ii) were
2 promptly corrected and not recurrent.
3 (e) [The commissioner of health shall provide written notice of
4 approval or disapproval of portions of the proposed application concern-
5 ing a licensed home care agency, certified home health agency or long
6 term home health care program, and, where applicable, of the approval or
7 disapproval of the public health and health planning council to the
8 commissioner.] If an application receives all the necessary approvals,
9 the commissioner of health shall notify the applicant in writing. The
10 commissioner's written approval shall constitute authorization to oper-
11 ate an assisted living program.
12 (f) No assisted living program may be operated without the written
13 approval of [the department,] the department of health and[, where
14 applicable,] the public health and health planning council.
15 (g) Notwithstanding any other provision of law to the contrary, any
16 assisted living program having less than seventy-five authorized bed
17 slots, located in a county with a population of more than one hundred
18 ten thousand and less than one hundred fifty thousand persons based upon
19 the decennial federal census for the year two thousand, and which at any
20 point in time is unable to accommodate individuals awaiting placement
21 into the assisted living program, shall be authorized to increase the
22 number of assisted living beds available for a specified period of time
23 as part of a demonstration program by up to thirty percent of its
24 approved bed level; provided, however, that such program shall otherwise
25 satisfy all other assisted living program requirements as set forth in
26 this section. In addition, any program which receives such authorization
27 and which at any point on or after July first, two thousand five is
28 unable to accommodate individuals awaiting placement into the assisted
29 program, shall be authorized to further increase the number of assisted
30 living beds available as part of this demonstration program by up to
31 twenty-five percent of its bed level as of July first, two thousand
32 five; provided, however, that such program shall otherwise satisfy all
33 other assisted living program requirements as set forth in this section.
34 (h) The commissioner is authorized to add one thousand five hundred
35 assisted living program beds to the gross number of assisted living
36 program beds having been determined to be available as of April first,
37 two thousand seven.
38 (i) (a) The commissioner of health is authorized to add up to six
39 thousand assisted living program beds to the gross number of assisted
40 living program beds having been determined to be available as of April
41 first, two thousand nine. Nothing herein shall be interpreted as prohib-
42 iting any eligible applicant from submitting an application for any
43 assisted living program bed so added. The commissioner of health shall
44 not be required to review on a comparative basis applications submitted
45 for assisted living program beds made available under this paragraph.
46 The commissioner of health shall only authorize the addition of six
47 thousand beds pursuant to a seven year plan ending prior to January
48 first, two thousand seventeen.
49 (b) The commissioner of health shall provide an annual written report
50 to the chair of the senate standing committee on health and the chair of
51 the assembly health committee no later than January first of each year.
52 Such report shall include, but not be limited to, the number of assisted
53 living program beds made available pursuant to this section by county,
54 the total number of assisted living program beds by county, the number
55 of vacant assisted living program beds by county, and any other informa-
56 tion deemed necessary and appropriate.
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1 (j) The commissioner of health is authorized to add up to four thou-
2 sand five hundred assisted living program beds to the gross number of
3 assisted living program beds having been determined to be available as
4 of April first, two thousand twelve. Applicants eligible to submit an
5 application under this paragraph shall be limited to adult homes estab-
6 lished pursuant to section four hundred sixty-one-b of this [article]
7 title with, as of September first, two thousand twelve, a certified
8 capacity of eighty beds or more in which twenty-five percent or more of
9 the resident population are persons with serious mental illness as
10 defined in regulations promulgated by the commissioner of health. The
11 commissioner of health shall not be required to review on a comparative
12 basis applications submitted for assisted living program beds made
13 available under this paragraph.
14 (k) Beginning July first, two thousand eighteen, the commissioner of
15 health and the public health and health planning council are authorized
16 to approve assisted living program beds for any eligible applicant that
17 satisfactorily demonstrates the public need for such beds in the area to
18 be served and meets all other applicable requirements of this section.
19 Assisted living program availability determinations and limitations in
20 place prior to July first, two thousand eighteen shall no longer be
21 applicable, and assisted living program beds shall be generally avail-
22 able to meet demonstrated public need on a case by case basis whenever
23 the commissioner and public health and health planning council are
24 satisfied public need exists at the time and place and under circum-
25 stances proposed by the applicant; provided, however, the prior bed
26 authorizations in paragraphs (h), (i) and (j) of this subdivision shall
27 continue in full force and effect.
28 (l) Notwithstanding any other provision of law to the contrary, the
29 department of health shall develop an expedited review and approval
30 process for applications for up to nine additional beds to an existing
31 assisted living program qualified as being in good standing under
32 section four hundred sixty-one-b of this title.
33 § 2. Notwithstanding any provision of law to the contrary, there shall
34 be a moratorium on the authorization of new assisted living program
35 beds; whenever the director of the budget determines that the addition
36 of new assisted living program beds would have a net negative fiscal
37 impact on the medicaid program. In determining the net fiscal impact on
38 the medicaid program, the director of the budget shall include estimates
39 of savings that may accrue from the utilization of assisted living
40 program beds in lieu of nursing home beds or other levels of care;
41 whether the average case mix of nursing homes increases or decreases due
42 to the increase in assisted living program beds; whether managed care
43 savings are accrued by the addition of assisted living program beds and
44 overall medicaid expenditures for the assisted living program and nurs-
45 ing homes from the effective date of this section.
46 § 3. This act shall take effect immediately.