DOH Issues Proposed Regulation Changes for ACFs and Is Accepting Comment Until July 3rd

The Department of Health (DOH) has issued new proposed regulations for adult care facilities (ACFs). Public comment will be accepted until July 3, 2023. The changes incorporate the residents’ rights standards of the federal Home and Community-Based Services (HCBS) Settings Rule, promulgated by the Centers for Medicare and Medicaid Services (CMS), 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, pursuant to Social Services Law Section 461-m.

Members may recall that LeadingAge NY recently submitted comments on proposed regulations regarding these issues. According to DOH, this is a re-publication of the previous changes with some additional modifications based on input from CMS. LeadingAge NY is analyzing the updated proposal.

According to the State’s publication, specific amendments include:

Section 485.14: requires operators to provide unrestricted access to common areas for at least ten hours between 9am and 8pm, and to allow common space visits taking place outside this timeframe, or visits taking place in resident living spaces at any time, pursuant to the facility’s policy.

Sections 487.5(a), 488.5(a), and 490.5(a): require 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: (a) 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; (b) have privacy in their own room and sleeping unit, with only appropriate staff having access; (c) choose a private room if available and affordable or be offered a choice of 2 roommates in a shared unit; (d) decorate their own room; (e) have their dignity preserved and be free from coercion and restraint; (f) engage in community life, including activities outside of the facility; (g) be afforded the opportunity to seek employment and work in the greater community; and (h) to control their own schedule and activities and have access to food at any time.

Sections 487.7, 488.7, and 490.7: 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. Amendments further require 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 the resident resides.

Sections 487.11(l)(14), 488.11(h), and 490.11(m)(14)(i): require all bedrooms to be lockable by the resident via an appropriate locking mechanism, with only appropriate staff having access.

Conclusion

LeadingAge NY is analyzing these proposed changes and analyzing against previously submitted comments. We welcome member feedback to inform our advocacy on your behalf.

Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828