§ 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 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, long term home health care programs, certified home health
agencies, 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 one or more certified home health agencies
and/or long term home health care programs for the provision of services
pursuant to article thirty-six of the public health law.

(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 shall,
either directly or through contract with a long term home health care
program or certified home health agency, 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.

(ii) No person shall be determined eligible for and admitted to an
assisted living program unless the assisted living program finds that
the person meets the criteria provided in paragraph (d) of subdivision
one of this section.

(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, either directly or through contract with 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 person can be safely and
adequately cared for with the provision of services determined by such
assessment or reassessment.

(iv) Eligible individuals shall be permitted to receive hospice
services from a provider under article forty of the public health law
while continuing to reside in an adult care facility under this title
and enrolled in the assisted living program, subject to the availability
of federal financial participation. The commissioner shall make
regulations and take other actions reasonably necessary and appropriate
to implement this subparagraph.

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 and health planning 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 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.

(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 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.

(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
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 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
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
information deemed necessary and appropriate.

(j) The commissioner of health is authorized to add up to four
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 twelve. Applicants eligible to submit an
application under this paragraph shall be limited to adult homes
established 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
resident 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 applications submitted for assisted living program beds made
available under this paragraph.

(k) (i) Existing assisted living program providers may apply to the
department of health for approval to add up to nine additional assisted
living program beds that do not require major renovation or
construction. Eligible applicants are those that agree to dedicate such
beds to serve only individuals receiving medical assistance, are in good
standing with the department of health, and are in compliance with
appropriate state and local requirements as determined by the department
of health.

(ii) Existing assisted living program providers licensed on or before
April first, two thousand eighteen may submit applications under this
paragraph beginning no later than June thirtieth, two thousand eighteen
and until a deadline to be determined by the department of health.
Existing assisted living program providers licensed on or before April
first, two thousand twenty may submit such applications beginning no
later than June thirtieth, two thousand twenty and until a deadline to
be determined by the department of health.

(iii) The number of additional assisted living program beds approved
under this paragraph shall be based on the total number of previously
awarded beds either withdrawn by applicants or denied by the department
of health. The commissioner of health shall utilize an expedited review
process allowing certification of the additional beds within ninety days
of such department's receipt of a satisfactory application.

(l) (i) The commissioner of health is authorized to solicit and award
applications for up to a total of five hundred new assisted living
program beds in those counties where there is one or no assisted living
program providers, pursuant to criteria to be determined by the
commissioner.

(ii) The commissioner of health is authorized to solicit and award
applications for up to five hundred new assisted living program beds in
counties where utilization of existing assisted living program beds
exceeds eighty-five percent. All applicants shall comply with federal
home and community-based settings requirements, as set forth in 42 CFR
Part 441 Subpart G. To be eligible for an award, an applicant must agree
to:

(A) Dedicate such beds to serve only individuals receiving medical
assistance;

(B) Develop and execute collaborative agreements within twenty-four
months of an application being made to the department of health, in
accordance with guidance to be published by such department, between at
least one of each of the following entities: an adult care facility; a
residential health care facility; and a general hospital; and

(C) Enter into an agreement with an existing managed care entity.

(iii) The commissioner of health is authorized to award any assisted
living program beds for which a solicitation is made under subparagraph
(i) of this paragraph, but which are not awarded, to applicants that
meet all applicable criteria pursuant to a solicitation made under
subparagraph (ii) of this paragraph.

(m) Beginning April first, two thousand twenty-five, additional
assisted living program beds shall be approved on a case by case basis
whenever the commissioner of health is satisfied that public need exists
at the time and place and under circumstances proposed by the applicant.

(i) The consideration of public need may take into account factors
such as, but not limited to, regional occupancy rates for adult care
facilities and assisted living program occupancy rates and the extent to
which the project will serve individuals receiving medical assistance.

(ii) Existing assisted living program providers may apply for approval
to add up to nine additional assisted living program beds that do not
require major renovation or construction under an expedited review
process. The expedited review process is available to applicants that
are in good standing with the department of health, and are in
compliance with appropriate state and local requirements as determined
by the department of health. The expedited review process shall allow
certification of the additional beds for which the commissioner of
health is satisfied that public need exists within ninety days of such
department's receipt of a satisfactory application.

(n) The commissioner of health is authorized to create a program to
subsidize the cost of assisted living for those individuals living with
Alzheimer's disease and dementia who are not eligible for medical
assistance pursuant to title eleven of article five of this chapter. The
program shall authorize up to two hundred vouchers to individuals
through an application process and pay for up to seventy-five percent of
the average private pay rate in the respective region. The commissioner
of health may propose rules and regulations to effectuate this
provision.

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.