Assisted Living Residences - Regulatory Overview

1. Assisted Living Residences - Regulatory Overview NYSDOH Office of Long Term Care Division of Home and Community-Based Services

2. Assisted Living Reform Act - Chronology • October 26, 2004 - ALRA signed into Law • February 25, 2005 - ALRA Effective Date • August 3, 2005 - Initial Applications Due (Statute) • December 23, 2005 - App.’s Approvals Pended • March 28, 2007 - Regulations Published • May 14, 2007 - Public Comment Expires • December 26, 2007 - Second Publication • January 25, 2008 - Public Comment Expires • March 26, 2008 - Third Publication (Adopted)

3. Assisted Living Residences - Thoughts to Consider • “It’s Time” • Specifics have been debated for nearly 4 years • Consensus not possible among all groups • Need to get residences up and running • “Not Perfect” • Much is speculative at this point • Don’t now what we don’t know • “Learn from Implementation” • All critical areas have been addressed • There will be opportunities to amend statute and regulations as we learn from operational residences

4. Definitional Differences • Adult Homes: • Provide for: • room, board, housekeeping, personal care and supervision • Enriched Housing Programs: • Provide or arrange for provision of room • Provide: • board, housekeeping, personal care and supervision • Assisted Living Residences: • Provide or arrange for provision of: • housing, 24-houron-site monitoring, and personal care and/or home care (directly or indirectly) • Provide for: • daily food service, case management, and development of an individualized service plan

5. Assisted Living Residences -Regulatory Differences • By law, an assisted living residence (ALR) operator must first possess either an adult home or enriched housing program (ACF) certification. • Therefore, where ALR law or regulation is silent, the applicable ACF law or regulation is to be followed.

6. Assisted Living Residences -Regulatory Differences • Finding the regulations … • Title 18 NYCRR: • Adult Homes (Part 487) • Enriched Housing Programs (Part 488) • Title 10 NYCRR: • Assisted Living Residences (Part 1001)

7. Assisted Living Residences -Service Differences Monitoring • “An ability of the assisted living operator to respond to urgent or emergency needs or requests for assistance with appropriate staff, at any hour of any day or night of the week. Such monitoring must be provided on site.” • Must also include, but not be limited to, the ability to identify abrupt or progressive changes in behavior, appearance, or in performing basic ADLs which may signify the need for re-assessment and changes in service as reflected on the Individualized Service Plan. • The operator must designate sufficient staff to be responsible for monitoring residents on site.

8. Assisted Living Residences -Service Differences Monitoring (cont’d.) • For adult homes, supervision already requires an operator to monitor residents “to identify abrupt or progressive changes in behavior, appearance, or in performing basic ADLs”. • For enriched housing programs, while supervision requires the operator to “identify” such abrupt or progressive changes, regulations only provide for “assistance to and encouragement of” residents in performing basic ADLs. • Key difference in ALR monitoring: linking of current required ACF activities to the potential need for re-assessment and changes in service as reflected on the Individualized Service Plan.

9. Assisted Living Residences -Service Differences Daily Food Service • By regulation, adult homes are required to serve at least 3 meals per day, served at regularly scheduled times, and a nutritious evening snack. • Enriched housing programs must serve at least 1 congregate hot mid-day or evening meal, 7 days per week. • For ALRs, unless otherwise stated in the resident’s residency agreement, the provision of food service is to be dictated by and in compliance with the facility’s ACF certification.

10. Assisted Living Residences -Service Differences Individualized Service Plan • The centerpiece of the Assisted Living Reform Act and the ALR setting. • The mechanism from which all of the resident’s ALR services are based. • MORE than just “another piece of paper” - expected to be an on-going process.

11. Assisted Living Residences -Service Differences Individualized Service Plan (cont’d.) • The ISP must: • Be developed for each resident upon admission. • Include the services to be provided, and how and by whom services will be provided and accessed. • Be developed in accordance with the medical, nutritional, rehabilitation, functional, cognitive and other needs of the resident. • Be implemented within 30 days of (i.e., before or after) admission of the resident.

12. Assisted Living Residences -Service Differences Individualized Service Plan (cont’d.) • ISP must be developed with the resident, the resident's representative and resident's legal representative, if any, the ALR operator, and if necessary a PHL Article 36 home care agency or “equivalent staff”. • The initial ISP must be developed in consultation with the resident's physician - such consultation must be documented in writing by the ALR. • If a resident is determined by the physician not to be in need of home care services, as documented in the medical evaluation or otherwise, the participation of a home care services agency in the development of the ISP is not necessary.

13. Assisted Living Residences -Service Differences Individualized Service Plan (cont’d.) • The ISP must be reviewed and revised: • At least every 6 months; and • Whenever ordered by the resident’s physician; but • As frequently as necessary to reflect the changing care needs of the resident. • To the extent necessary, such review and revision must be undertaken in consultation with the resident’s physician.

14. Assisted Living Residences -Service Differences ISP vs. Pre-Admission/Medical Evaluations • The ALRA also requires a Pre-Admission Evaluation: • Using the Personal Data and Resident Evaluation Form • To be conducted within 30 days prior to admission, to determine whether the individual is appropriate for admission • To be conducted: • The operator, through its administrator or case manager, and • If necessary, either • a PHL Article 36 home care services agency, or • appropriately licensed and trained employee of the operator (RN, LPN, PT, OT or MSW) • The Personal Data and Resident Evaluation Form must be updated at least every 12 months.

15. Assisted Living Residences -Service Differences ISP vs. Pre-Admission/Medical Evaluations (cont’d.) • Despite development of the ISP, a Medical Evaluation (DOH-3122) is still required. • To be conducted within 30 days prior to admission; and whenever a change in the resident’s condition warrants, but at least every 12 months. • The ALR operator cannot admit any individual if it is not able to meet the individual’s care needs within the scope of services authorized to be provided by the ALR and the resident’s ISP.

16. Assisted Living Residences -Service Differences ISP vs. Pre-Admission/Medical Evaluations (cont’d.) • The Medical Evaluation must be written and signed from a physician, and include: • date of examination, significant medical history/current conditions, known allergies, the prescribed medication regimen (including information on ability to self-administer), recommendations for diet, exercise, recreation, frequency of medical exams, cognitive and mental health status, and ADL assistance needed; • a statement that the individual is or is not medically suited for care in the ALR and, if applicable, the EALR or SNALR; • a statement that the individual is or is not mentally suited for care in the ALR, and, if applicable, the EALR or SNALR;

17. Assisted Living Residences -Service Differences ISP vs. Pre-Admission/Medical Evaluations (cont’d.) • Content of the Medical Evaluation (cont’d.): • a statement that the individual is or is not in need of long term medical or nursing care or supervision, which would require placement in a hospital or nursing home; and • a statement that the individual is or is not in need of 24-hour skilled nursing care. • Any necessary nursing services should be indicated on the Medical Evaluation, as well as the ISP.

18. Assisted Living Residences -Additional Certifications • Enhanced Assisted Living (EALR) - • The authorization for an ALR to provide “aging-in-place”, by retaining residents who: • Are chronically chairfast and unable to transfer, or chronically require the physical assistance of one or more persons to transfer; • Chronically require the physical assistance of one or more persons in order to walk; • Chronically require the physical assistance of one or more persons to climb or descend stairs; • Are dependent on medical equipment and require more than intermittent or occasional assistance from medical personnel; or • Have chronic unmanaged urinary or bowel incontinence

19. Assisted Living Residences -Additional Certifications • Special Needs Assisted Living (SNALR) - • The authorization for an ALR to serve persons with special needs, including, individuals with dementia or cognitive impairments. • Required of any ALR that advertises or markets itself as serving such persons.

20. Assisted Living Residences -Admission/Retention Differences • Adult Home • May not accept anyone who: • Is in need of continual medical/nursing care or supervision provided by DOH/OMH facilities; • Suffers from a serious and persistent mental disability sufficient to warrant placement in an OMH residential facility; • Requires health or mental health services which are not available or cannot be provided safely; • Causes, or is likely to cause, danger to himself or others; • Repeatedly behaves in manner directly impairing the well-being, care or safety of resident or other residents, or substantially interfering with orderly operation of facility; • Has unstable medical condition requiring continual skilled observation of symptoms/reactions or accurate recording of such observations for reporting to resident's physician;

21. Assisted Living Residences -Admission/Retention Differences • Adult Home (cont’d.) • Refuses or is unable to comply with a prescribed treatment program, including a prescribed medications regimen when such failure causes, or is likely to cause, in the judgment of a physician, life-threatening danger to the resident or others; • Is chronically bedfast; • Is chronically chairfast and unable to transfer, or chronically requires the physical assistance of another person to transfer; • Chronically requires the physical assistance of another person in order to walk; • Chronically requires the physical assistance of another person to climb or descend stairs, unless assignment on a floor with ground-level egress can be made; • Has chronic unmanaged urinary or bowel incontinence;

22. Assisted Living Residences -Admission/Retention Differences • Adult Home (cont’d.) • Suffers from a communicable disease/health condition which constitutes a danger to other residents and staff; • Is dependent on medical equipment, unless demonstrated that: • the equipment presents no safety hazard; • use of the equipment does not restrict the individual to his room, impede the individual in the event of evacuation, or inhibit participation in the routine activities of the home; • use of the equipment does not restrict or impede the activities of other residents; • the individual is able to use and maintain the equipment with only intermittent or occasional assistance from medical personnel; • such assistance, if needed, is available from approved community resources; and each required medical evaluation attests to the individual’s ability to use/maintain the equipment;

23. Assisted Living Residences -Admission/Retention Differences • Adult Home (cont’d.) • Engages in alcohol or drug use which results in aggressive or destructive behavior; or • Is under 18 years of age; (or, in a public adult home, under 16 years of age). • Further: • An adult home operator cannot admit an individual before a determination has been made that the facility program can support the physical and social needs of the resident. • Such a determination is to be based upon a medical evaluation, mental health evaluation and resident interview.

24. Assisted Living Residences -Admission/Retention Differences • Enriched Housing Program • Same as for adult home, with additional caveats. • The EHP cannot accept or retain any person who: • Has chronic personal care needs which cannot be met by the EHP staff or approved community providers; or • Is not self-directing (i.e., requires continuous supervision and is not capable of making choices about his/her ADLs). • As with an adult home, a determination has to be made that the EHP can support the physical and social needs of the resident.

25. Assisted Living Residences -Admission/Retention Differences • Enriched Housing Program (cont’d.) • However, in addition to the medical evaluation, mental health evaluation, and resident interview, the EHP is also required to perform a functional assessment which must address: • Personal activities of daily living; • Instrumental activities of daily living; • Sensory impairments; • Behavioral characteristics • Personality characteristics; and • Daily habits.

26. Assisted Living Residences -Admission/Retention Differences • Assisted Living Residence • ALR is prohibited from admitting any individual if it is not able to meet the care needs of that individual within the scope of services authorized under the ALRA; • Provided that no operator can admit any resident in need of 24-hour skilled nursing care. • Consequently, admission/retention standards are same as for an adult home and enriched housing program (depending on certification).

27. Assisted Living Residences -Admission/Retention Differences • Assisted Living Residence (cont’d.) • If a resident reaches a point where (s)he requires 24-hour skilled nursing care, the resident must be discharged from the ALR and the operator must initiate proceedings for the termination of the residency agreement.

28. Assisted Living Residences -Admission/Retention Differences • Enhanced Assisted Living Residence • However, such a resident may remain at an ALR certified for Enhanced Assisted Living if each of the following conditions are met: • Resident hires appropriate nursing, medical, or hospice staff to care for increased needs; • Resident’s physician and home care agency both determine and document that, with provision of such additional care, resident can be safely cared for in the EALR, and would not require placement in hospital or nursing home; • Operator agrees to retain the resident and to coordinate the care provided by the operator and the additional nursing, medical, or hospice staff; and • Resident is otherwise eligible to reside at the residence.

29. Assisted Living Residences -Admission/Retention Differences • Enhanced Assisted Living Residence (cont’d.) • No resident shall be permitted to continue to “age-in-place” unless the operator, the resident’s physician, and, if applicable, the resident’s licensed (LHCSA) or certified home care agency (CHHA) agree that the additional needs of the resident can be safely and appropriately met at the residence.

30. Assisted Living Residences -Admission/Retention Differences • Special Needs Assisted Living Residence • Admission/discharge criteria are the same as the ALR with the addition of the following (for dementia care): • The operator must provide a comprehensive plan to: • Assess the applicant/resident; and • Identify interventions for behavioral issues, especially for residents who, without such interventions, would be in-appropriate for admission/retention because they: • Chronically exhibit unmanageable assaultive or aggressive behavior; • Are chronically intrusive, disruptive or exhibit other behavioral characteristics to  the extent that they interfere with the orderly operation of the facility;

31. Assisted Living Residences -Admission/Retention Differences • Special Needs Assisted Living Residence (cont’d.) • Chronically attempt to elope to the extent that they present a danger to themselves or interfere with the orderly operation of the facility; or • Are chronically uncooperative or resistive to the provision of personal care services, including any necessary toileting program and assistance with medications, as well as other services, to the extent that such care cannot be maintained or managed.

32. Assisted Living Residences -Health Care Services • The resident’s ISP must specify any necessary health care services to be provided to the resident. • “Health care services” are defined as: nursing, home health aide services, physical therapy, occupational therapy, speech therapy, respiratory therapy, social work, nutrition, and medical supplies, equipment and appliances.

33. Assisted Living Residences -Health Care Services Home Care • While the ALR is responsible for providing or arranging for any necessary health care services for its residents, such services must be provided through a PHL Article 36 approved home care services agency. • These services can either be provided directly (i.e., an ALR w/PHL Art. 36 license) or indirectly (i.e., “arranged” by the ALR through a community PHL Art. 36 home care agency).

34. Assisted Living Residences - Health Care Services Home Care (cont’d.) • ALR residents have the right to receive services from service providers with whom the operator does not have an arrangement. • The ALR operator must assist the resident in arranging such services, if necessary, and must coordinate the care the ALR provides or arranges with the care provided by such other providers. • ALR residents also have the right to choose their health care providers, notwithstanding any other agreement to the contrary.

35. Assisted Living Residences - Health Care Services Health Care Services and the EALR • The ALRA permits EALRs to “hire care staff directly pursuant to standards developed by the Department” (PHL §4655(1)(d)). • Therefore, the ALR must arrange for any needed health care services to be provided by a PHL Art. 36 home care agency, unless the ALR is certified for EALR. • The EALR may, but is not required to, obtain PHL Art. 36 licensure or certification to provide such health care services directly.

36. Assisted Living Residences - Health Care Services Health Care Services/EALR (cont’d.) • If an EALR provides health care services directly, then the operator must have appropriate policies and procedures related to such services, including: • Service specific delivery standards consistent with current professional standards of practice, including staff supervision; • Documentation of service delivery; • Storage, cleaning and disinfection of medical supplies, equipment and appliances;

37. Assisted Living Residences - Health Care Services Health Care Services/EALR (cont’d.) • Provision of nursing or therapeutic service, procedure or treatment not previously provided by the EALR; • Resident discharge assuring a timely, safe and appropriate transition; and • Appropriate quality assurance/improvement activities. • An EALR must provide or arrange for nursing services for its residents as necessary, including: • Assessment and evaluation of residents; • Supervision of aides; and • Nursing care and treatments.

38. Assisted Living Residences - EALR vs. ALP • The Assisted Living Program, created in 1991, combines a certified ACF with a PHL Art. 36 home care agency - therefore, same range of services provided in EALR. • Medicaid may pay for ALP services - will not pay for EALR services. • Limited number of ALP beds, awarded via RFA process - no limit to EALR beds, granted via certification application process.

39. Assisted Living Residences - EALR vs. ALP • Whereas an EALR resident may “age-in-place”, an ALP resident must be discharged if (s)he: • Requires continual nursing or medical care; • Is chronically bedfast and requires lifting equipment to transfer or the assistance of two persons to transfer; • Is chronically chairfast/requires lifting equipment to transfer or the assistance of two persons to transfer; or • Is cognitively, physically or medically impaired to a degree which endangers the safety of the resident or other residents.

40. Assisted Living Residences - Staffing/Personnel Differences Case Management • Qualifications dictated by ACF certification. • Increased staffing requirements for ALR: • <25 beds - Qualified case manager on-site for 20 hours per week and available to provide case management services. • 25-44 beds - Qualified case manager on-site additionally for 1 hour per week for each bed, up to a total of 40 hours/week. • >45 beds - 1 or more case managers on-site at least 40 hour/week and available to assure case management needs are adequately met. • EALR/SNALR - Staff nurse may provide case management or serve as administrator, as long as the nursing care and case management/administration needs of residence are met.

41. Assisted Living Residences - Staffing/Personnel Differences Personal Care • ACF aide training guidelines will apply to ALR. • Staff performing such functions in ALRs will be referred to as “Resident Aides”. • As with ACF aides currently performing personal care functions, Resident Aides will be required to receive: • 40 hours of initial training as specified by the Department; • 12 hours of ongoing, inservice education annually, in topics applicable to their responsibilities; and • an annual assessment of the aide’s performance and effectiveness, including at least 1 direct observation of performance. • Curriculum will be updated to reflect the changing care needs of the ACF population now requiring assisted living.

42. Assisted Living Residences - Staffing/Personnel Differences Personal Care (cont’d.) • Resident Aides will be equivalent to home care personal care aides (PCAs) with regard to scope of tasks as taught in the basic training. • Consistency in training among ALRs, and between ALR and home care, will be improved by requiring a standardized curriculum consistent to the extent applicable with the home care curriculum. • Neither Resident Aides nor PCAs may perform tasks that are solely within the scope of tasks allowed for home health aides. • To periodically review curriculum in consultation with consumers and providers, to update/revise as necessary.

43. Assisted Living Residences - Staffing/Personnel Differences Personal Care (cont’d.) • Training will continue to be the responsibility of the operator, based within the ALR. • Trainers must have demonstrated education and experience in competently performing the tasks included in the training. • Some content, which has in the past been included in the ACF training curriculum, will now be addressed in “orientation” (i.e., ALR procedures, general duties, personal appearance, and emergency and evacuation plan) • Hope is to, eventually, apply revised resident aide training requirements to “personal care” aides in all ACFs.

44. Assisted Living Residences - Staffing/Personnel Differences Nursing • EALRs and SNALRs required to provide, either directly or through contract, sufficient nursing staff to meet the health care needs of the residents. • Minimum nursing coverage requirements: • RN on-duty and on-site for 8 hours/day, 5 days/week; • LPN on-duty and on-site for 8 hours/day for other 2 days; • RN on-call and available for consultation 24 hours/day, 7 days/week, if not available on-site; and • Additional nursing coverage as determined necessary and documented by residents’ medical evaluations /ISPs. • Waivers possible for residences with 40 or fewer beds.

45. Assisted Living Residences - Structural and Environmental • Existing Structures • For existing buildings applying for ACF and ALR, applicable ACF structural/environmental standards apply. • DOH may re-examine the adequacy of life and safety features in existing certified ACFs applying for ALR, should it be determined that codes/regulations applicable at the time of initial certification are not met. • To be used for ALR, the following additional fire safety features are required: • An automatic sprinkler system throughout the building; • A supervised smoke-detection system throughout; • “Direct connect” fire protection systems;

46. Assisted Living Residences - Structural and Environmental • Existing Structures (cont’d.) • Handrails on both sides of all resident-use corridors and stairways; and • A centralized emergency call-system in all bedrooms easily reachable from bedside and in all resident-use toilet/bathing areas. • Buildings with a capacity of 17+ to be used for EALR/SNALR must also have smoke barriers to divide each floor into at least two smoke compartments, neither of which can have corridors exceeding 100 feet in length.

47. Assisted Living Residences - Structural and Environmental New Structures • A new building constructed for ALR must meet the applicable structural/environmental requirements currently in effect for new ACFs. • In addition, must meet the five additional fire safety features previously mentioned - all six, if a new building with a capacity of 17+ to be used for EALR/SNALR. All Structures • The following additional standards apply to all ALRs: • All bedrooms limited to single or double occupancy; • Minimum corridor widths of 60 inches; and • Minimum door widths of 32 inches.

48. Assisted Living Residences - Consumer Protections • Development of a Consumer Information Guide • To be publicly distributed in the very near future • Disclosure of Specific Information, including: • Statement regarding ability of residents to receive services from providers with whom the operator does not have an arrangement. • Statement that the resident shall have the right to choose their health care providers, notwithstanding any agreements to the contrary. • Provision of DOH toll-free number for reporting complaints regarding home care services and the services provided by the ALR operator.

49. Assisted Living Residences - Consumer Protections • Expanded Resident Rights, including: • Prospective residents assured sufficient information regarding ALR to make an informed choice. • Right to receive adequate and appropriate ADL assistance, to be fully informed of their medical condition/treatment, and to refuse medication, treatment or services after being fully informed of consequences. • Right to written notice of any fee increase not less than 45 days prior to the proposed effective date of such increase - provides for exemptions for when such increase is necessitated by service needs.

50. Assisted Living Residences Closing Thoughts …