S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5840
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 2, 2017
                                ___________
 
 Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
   printed to be committed to the Committee 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:
 
   Section 1. Subdivision 3 of section 461-l of the social services  law,
 as added by chapter 165 of the laws of 1991, subparagraph (iii) of para-
 graph (a) as amended by chapter 438 of the laws of 1994, paragraphs (b),
 (c), (e) and (f) as amended by section 82 of part A of chapter 58 of the
 laws  of  2010,  paragraph  (d) as amended by chapter 591 of the laws of
 1999, paragraph (g) as amended by chapter 397 of the laws of 2012, para-
 graph (h) as added by section 20 of part B of chapter 58 of the laws  of
 2007,  paragraph (i) as amended by section 67 of part C of chapter 60 of
 the laws of 2014, and paragraph (j) as added by section 70 of part A  of
 chapter 56 of the laws of 2013, is amended to read as follows:
   3. Assisted living program approval. (a) An eligible applicant propos-
 ing to operate an assisted living program OR INCREASE THE NUMBER OF BEDS
 WITHIN  AN  EXISTING PROGRAM shall submit an application to the [depart-
 ment. Upon receipt, the department shall transmit a copy of the applica-
 tion and accompanying documents  to  the]  department  of  health.  Such
 application  shall  be  in  a  format  and  a quantity determined by the
 department OF HEALTH 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;

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11343-01-7
              

 S. 5840                             2
 
   (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  applica-
 tion for licensure as a home care service agency, the] THE department of
 health shall forward the application for the proposed program and accom-
 panying  documents  to the public health and health planning council for
 its written  approval  in  accordance  with  THIS  SUBDIVISION  AND  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 ASSISTED  LIVING
 PROGRAM  AND  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 AND THE PUBLIC
 HEALTH AND HEALTH PLANNING COUNCIL are satisfied as to the  public  need
 for the assisted living program BEDS BEING PROPOSED AFTER GIVING CONSID-
 ERATION  TO  THE  RELATIVE CONCENTRATION OF ASSISTED LIVING PROGRAM BEDS
 AND OTHER LONG TERM CARE RESOURCES AND CAPACITY IN EXISTENCE IN THE AREA
 TO BE SERVED.
   (d) The department OF HEALTH shall not approve an application  for  an
 assisted  living  program OR AN EXPANSION OF AN EXISTING 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  institu-
 tion  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,] IT 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

 S. 5840                             3

 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 concern-
 ing 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  OF  HEALTH shall notify the applicant in writing. The
 commissioner's written approval shall constitute authorization to  oper-
 ate 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 prohib-
 iting  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

 S. 5840                             4
 
 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 informa-
 tion deemed necessary and appropriate.
   (j)  The  commissioner of health is authorized to add up to four thou-
 sand 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 estab-
 lished 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 resi-
 dent 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  appli-
 cations  submitted for assisted living program beds made available under
 this paragraph.
   (K) BEGINNING JULY FIRST, TWO THOUSAND SEVENTEEN, THE COMMISSIONER  OF
 HEALTH  AND THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL ARE AUTHORIZED
 TO APPROVE ASSISTED LIVING PROGRAM BEDS FOR ANY ELIGIBLE APPLICANT  THAT
 SATISFACTORILY DEMONSTRATES THE PUBLIC NEED FOR SUCH BEDS IN THE AREA TO
 BE  SERVED  AND MEETS ALL OTHER APPLICABLE REQUIREMENTS OF THIS SECTION.
 ASSISTED LIVING PROGRAM AVAILABILITY DETERMINATIONS AND  LIMITATIONS  IN
 PLACE  PRIOR  TO  JULY  FIRST, TWO THOUSAND SEVENTEEN SHALL NO LONGER BE
 APPLICABLE, AND ASSISTED LIVING PROGRAM BEDS SHALL BE  GENERALLY  AVAIL-
 ABLE  TO  MEET DEMONSTRATED PUBLIC NEED ON A CASE BY CASE BASIS WHENEVER
 THE COMMISSIONER AND PUBLIC  HEALTH  AND  HEALTH  PLANNING  COUNCIL  ARE
 SATISFIED  PUBLIC  NEED  EXISTS  AT THE TIME AND PLACE AND UNDER CIRCUM-
 STANCES PROPOSED BY THE APPLICANT;  PROVIDED,  HOWEVER,  THE  PRIOR  BED
 AUTHORIZATIONS  IN PARAGRAPHS (H), (I) AND (J) OF THIS SUBDIVISION SHALL
 CONTINUE IN FULL FORCE AND EFFECT.
   (1) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO  THE  CONTRARY,  THE
 DEPARTMENT  OF  HEALTH  SHALL  DEVELOP  AN EXPEDITED REVIEW AND APPROVAL
 PROCESS FOR APPLICATIONS FOR UP TO NINE ADDITIONAL BEDS TO  AN  EXISTING
 ASSISTED  LIVING  PROGRAM  QUALIFIED  AS  BEING  IN  GOOD STANDING UNDER
 SECTION FOUR HUNDRED SIXTY-ONE-B OF THIS ARTICLE.
   § 2. Notwithstanding any provision of law to the contrary, there shall
 be a moratorium on the authorization  of  new  assisted  living  program
 beds;  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 medicaid program. In determining the net fiscal impact on
 the medicaid program, the director of the budget shall include estimates
 of savings that may accrue  from  the  utilization  of  assisted  living
 program  beds  in  lieu  of  nursing  home beds or other levels of care;
 whether the average case mix of nursing homes increases or decreases due
 to the increase in assisted living program beds;  whether  managed  care
 savings  are accrued by the addition of assisted living program beds and
 overall medicaid expenditures for the assisted living program and  nurs-
 ing homes from the effective date of this section.
   § 3. This act shall take effect immediately.