S T A T E O F N E W Y O R K
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7727--A
2017-2018 Regular Sessions
I N A S S E M B L Y
May 11, 2017
___________
Introduced by M. of A. LUPARDO -- read once and referred to the Commit-
tee on Aging -- committee discharged, bill amended, ordered reprinted
as amended and recommitted to said committee
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.
LBD11424-02-7
A. 7727--A 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
A. 7727--A 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
A. 7727--A 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.