On November 15, 2023, the New York State Department of Health (DOH) adopted new regulatory requirements for adult care facilities (ACFs) in an effort to expand resident rights in conformance with the Centers for Medicare and Medicaid Services (CMS) Home and Community-Based Services (HCBS) final rule. The new requirements implementing CMS’s HCBS rule apply to all ACFs, including Adult Homes, Enriched Housing Programs, and Residences for Adults, Assisted Living Programs and Assisted Living Residences, despite the fact that only Assisted Living Programs receive Medicaid funding.
ACFs across the State are now required to allow residents to have visitors at any time, giving them unrestricted access to common areas. ACFs are also prohibited from asking visitors the reason for their visit. In addition, ACFs will now be required to make resident bedrooms lockable from the inside by the resident, with “appropriate staff” also having access. In responding to public comments expressing resident safety concerns, DOH provided that ACFs can ask a visitor to sign a visitor register, while reiterating that ACFs cannot ask the visitor why they are visiting. Additionally, DOH has pointed ACFs generally to guidance and Dear Administrator Letters for suggestions on how to balance safety with the new requirements.
The new regulations expand resident rights to include, among other things, the ability to choose a private room if it is available, control their own schedule, and access foods of their preference. As ACFs are required to adopt a statement of resident rights, which is provided to new residents and annually reviewed with existing residents, it is important that ACFs have updated statements that conform to the new regulations.
ACFs now have new reporting requirements, including a requirement that they file a report with the Justice Center for the Protection of People with Special Needs in the event a resident dies, attempts suicide, or in the event a felony crime “may have been committed” by or against a resident. The regulations also impose new case management requirements. Whereas prior to these new regulations, case managers were required to provide initial and periodic evaluation of a resident’s needs and goals, case managers must now evaluate a resident’s needs and goals on an episodic basis as well, while now also evaluating the ACFs capability to meet such needs and goals.
The new regulations affect all types of ACFs across the State and are effective as of November 15, 2023, so it is imperative that ACFs ensure that they are in compliance immediately to avoid enforcement by DOH.
Should you have any questions or need assistance complying with the new regulations, please contact the authors, the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].