LeadingAge NY Is Preparing Comments on Behalf of ACF/AL Members Regarding HCBS Settings Rule Proposals
The Department of Health (DOH) has issued two documents for public comment related to the federal Home and Community-Based Services (HCBS) Settings Rule, and LeadingAge NY will be providing comment on behalf of our members.
HCBS Final Rule Statewide Transition Plan Comments Due to State by Jan. 6th
The State has posted the HCBS Final Rule Statewide Transition Plan (STP) and will accept comments until Jan. 6, 2023. In reviewing the aspect of the plan regarding adult care facilities (ACFs) and assisted living programs (ALPs) on pages 6-17, we are concerned about the assertion that Special Needs Assisted Living Programs cannot be compliant with the HCBS Settings Rule due to the delayed egress systems. These programs, which essentially combine the special needs assisted living residence (SNALR) with the ALP, are rare, given that the ALP rate does not support the level of service required to serve the SNALR population and they are administratively challenging to operate. That being said, the Centers for Medicare and Medicaid Services (CMS) has provided guidance on ways in which to address wandering and exit-seeking behaviors and delayed egress systems that can be compliant with the rule. We will highlight this guidance for DOH to ensure that this is not categorically excluded from the ALP or other Medicaid-covered HCBS, as a policy matter. If such an option is not available, then nursing home placement is likely to be the only other option. Any member who is operating an SNALR within an ALP should reach out to us, and members who want to comment on the STP can do so directly and/or share comments with us. Click here for more information.
Comments on Proposed Changes to ACF Regulations Due to State by Feb. 21st
DOH has also issued proposed changes to ACF regulations to comport with the federal HCBS Settings Rule. The changes incorporate the residents’ rights standards, including the rights of access to visitors, freedom of choice, and community participation. The proposed regulations also amend reporting requirements in the event of a resident death or attempted suicide, or where a felony crime may have been committed by or against a resident. LeadingAge NY will be analyzing the proposed amendments and will provide comments on behalf of members, which are due Feb. 21, 2023. Members should provide Diane Darbyshire comments for incorporation by Feb. 15, 2023 via email at ddarbyshire@leadingageny.org.
Members can also provide comments directly to:
New York State Department of Health
Bureau of Program Counsel, Regulatory Affairs Unit
Corning Tower, Empire State Plaza, Rm. 2438
Albany, NY 12237-0031
Phone: 518-473-7488
Fax: 518-473-2019
regsqna@health.ny.gov
Attention: Katherine Ceroalo
Summary of proposed amendments:
The proposed changes require:
- operators to provide unrestricted access to common areas for at least 10 hours between 9 a.m. and 8 p.m., and to allow common space visits taking place outside this timeframe and access to visitors at any time;
- the statement of rights to be provided to each resident at the time of admission and reviewed with the resident periodically thereafter, and further amended to expand on residents’ rights, including rights to:
- manage their own personal affairs, including the right to determine from whom medical services are received, provided such services are within the provider’s scope of practice;
- have privacy in their own room and sleeping unit, with only appropriate staff having access;
- choose a private room if available and affordable or be offered a choice of roommates in a shared unit;
- decorate their own room;
- have their dignity preserved and be free from coercion and restraint;
- engage in community life, including activities outside of the facility;
- be afforded the opportunity to seek employment and work in the greater community; and
- control their own schedule and activities and have access to food at any time.
Additional changes require:
- operators to file a report with the Justice Center for the Protection of People with Special Needs in the event of a resident’s death or attempted suicide, or when a felony crime may have been committed by or against a resident, if the resident had at any time received services from a mental hygiene services provider;
- reporting to the appropriate law enforcement authority when a felony crime may have been committed by or against a resident.
These sections will also require case management to include episodic evaluation of the resident’s needs and goals; to document each resident’s understanding of their rights and responsibilities; and to support residents in making decisions about daily activities to participate in, with whom to interact, and the physical environment in which they reside.
All bedrooms must be lockable by the resident via an appropriate locking mechanism, with only residents and appropriate staff having access.
Conclusion
Members are encouraged to let us know what comments you have on the STP and the regulation changes, so we may advocate on your behalf.
Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828