Bill Text: NY A09562 | 2017-2018 | General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-02-06 - reported referred to ways and means [A09562 Detail]

Download: New_York-2017-A09562-Introduced.html

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                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
        A. 9562                             2
     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.
        A. 9562                             4
     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.