DOH Finalizes ACF Regulation Changes

The Department of Health (DOH) has finalized adult care facility (ACF) regulation changes to comply with the federal Home and Community-Based Services (HCBS) Settings Rule and implement requirements. The changes 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 these ACF regulatory changes were out for public comment twice. Based on member feedback, we provided comments on the initial proposal in February, and we were pleased to see that several recommendations had been taken. We again commented in July on the second proposal. Overall, the final regulations address several of the concerns raised by LeadingAge NY. Below is a summary:

Effective Date

We had advocated for more time to implement the regulations upon promulgation to ensure that providers, residents, and the Department had a common understanding of the changes. However, the regulation changes are effective as of Nov. 15, 2023.

Notable Changes

With regard to the requirement that the statement of rights issued by the Department be reviewed with the resident periodically, we felt that “periodic” was subjective and recommended annually. The final regulations update the language to reflect that the residents’ rights statement must be provided to each resident upon admission and thereafter reviewed with the resident “not less than annually.”

We again raised concern about the requirement that a resident have access to food at any time – only to clarify to ensure a common understanding that access to food at any time does not necessarily mean a fully cooked meal in the middle of the night, for example. In the analysis of public comment, excerpted below, DOH acknowledges this and modifies it to address the comment. Unfortunately, they re-inserted the words “of preference,” which had been removed in the last iteration in response to comments.

The Department agrees that adult care facilities should not be expected to accommodate a request to grill a steak at 4:00am; however, the facility can case manage its residents’ individualized expectations and identify what foods are available and how to obtain them. In order to clarify the intent of the regulation, the regulation has been amended to state that a resident has a right to have access to “reasonably available” foods of preference at any time.

DOH changed language slightly with regard to the development of resident goals, in response to a concern that a resident be compelled to create a goal simply for regulatory compliance. The proposed regulations have been updated to refer to the needs and goals of each resident and the capability of the facility program to meet those needs “and expressed goals.”

Notable Acknowledgments for Implementation

While DOH did not accept all of our suggestions, some of their comments signal agreement on the intention.

LeadingAge NY and others raised concerns about the limitations regarding a resident’s choice of roommate or desire for private room, and the limitations of that based on availability, shared rooms, etc.:

The Department agrees that it is not always possible to accommodate a resident’s choice of roommate. The regulation requires operators to “take all reasonable steps to accommodate a resident’s expressed choice…” The Department acknowledges that there are instances when, after a facility takes all reasonable steps to accommodate a resident’s expressed choice, it is nevertheless not possible to accommodate a resident’s choice of a roommate. No changes have been made based on this comment.

LeadingAge NY highlighted several areas in the regulation changes where the Department must work to ensure a common understanding of the standards, particularly as it relates to the survey process:

The Department agrees that regulatory changes must be reflected in compliance measurements. No changes have been made based on the comment.

Other Comments

Unfortunately, DOH did not make modifications regarding the following:

Given the broad standard, we recommended greater specificity regarding the qualifier of having at any time received services from a mental hygiene services provider for the purposes of reporting certain incidents to the Justice Center for the Protection of People with Special Needs. Unfortunately, the State chose not to make modifications and rather indicates that the language is consistent with the law.

LeadingAge NY highlighted that the State did not use identical language in the application of some of the federal HCBS Settings Rule standards. While not significantly different, we suggested consistency. The Department seemed to take this comment as a broader statement on the differences between adult homes and enriched housing and did not make any changes.

Conclusion

LeadingAge NY has and will continue to be actively engaged in conversations regarding the implementation process of the federal HCBS Settings Rule. Since the rule was proposed, we have been advocating for the unique perspective of our members and the people you serve. These regulations are just one aspect of the process, but the application and surveillance of these shifts will be critical. As such, we will continue to work closely with the Department as this process unfolds. We appreciate the member input that has guided our advocacy.

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