DOH Proposes Regulation Changes to Comport with HCBS Settings Rule

Members are reminded that the Department of Health (DOH) has issued proposed changes to adult care facility (ACF) regulations. Most of the changes are proposed to comport with the federal Home and Community-Based Services (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 when 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

While members should review the proposed changes, below is a high-level summary.

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; and
• 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 in which to participate, 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 regulation changes, so we may advocate on your behalf.

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