LeadingAge NY Submits Comments on Revised Proposed ACF Regulations
As LeadingAge NY previously reported, the Department of Health (DOH) issued new proposed regulations for adult care facilities (ACFs). LeadingAge NY analyzed the updated proposal and submitted these comments, which were due by July 3rd.
The proposed 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. This current regulatory proposal is a republication of the previous changes with some additional modifications based on input from CMS.
What Differed in Second Round of Proposed Regulations?
In our analysis of the second publication of these regulations, we noted many minor technical changes that did not change the meaning of the regulation. We are pleased to report that there were instances where the Department modified language consistent with recommendations in our comments on the first proposal:
- The Department added clarifying language to “A resident shall have the right to decorate their room to taste” to add “according to the terms of the resident’s admission or residency agreement,” in addition to requiring compliance with all applicable local and state fire and safety codes. LeadingAge NY recommended in our comments submitted in February 2023 an amendment to allow providers to impose reasonable limits on decorative changes and preferences that impact health and safety more generally – not just those that implicate fire and safety codes. We believe this added language guards against some of the concerns.
- The updated proposal deletes the words “of preference” in the regulation allowing residents the right to have access to food at any time. While we know members strive to incorporate residents’ preferences, we had advocated for a modification that recognizes that there are limitations, based on health and safety considerations, seasonal availability, and financial feasibility. Requiring access to foods of preference at any time went beyond what the federal rule requires. The language as modified in this proposed regulation is clearer for all parties, and consistent with the federal rule.
Other notable changes included specifying that operators provide unrestricted access to common areas for at least 10 hours, with language indicating that this should be “between 9am and 8pm.” Language was also added 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.”
LeadingAge NY’s comments acknowledged where the Department addressed our concerns with modified language, while voicing our ongoing concerns about certain language, which was not addressed in the revised proposal. We also urged the Department to take steps to work with the provider community in the implementation and oversight of these new rules.
Conclusion
LeadingAge NY will inform members when these regulations are finalized by the Department.
Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828