New Adult Home & Assisted Living Legislation Introduced 

 Richard N. Gottfried, chair of the New York State Assembly Committee on Health, joined by Assembly people Ellen Jaffee, Aileen Gunter, John McEneny and William Colton, has introduced three new bills to implement important improvements and safeguards in assisted living in New York State. Two of the bills have been introduced in the Senate by Senators Velmanette Montgomery and Mark Grisanti and joined by Eric Adams and Joseph Addabbo and one by Senators Grisanti and Addabbo (S6278). The Long Term Care Community Coalition has been working with Assembly Member Gottfried since June to develop these bills and has presented them to several leaders in the Assembly and Senate. 

A8861, S6279: Relates to the adult care facilities training program

Direct care staff in adult homes are not currently required to complete a uniform training program, despite providing significant resident care. Training guidelines issued by the Department of Health (DOH) have not been changed in many years. This lack of adequate training leads to mistakes, including serious errors that can endanger the health of residents. A8861 would create a mandatory 40-hour training course for direct care staff in adult homes. Staff would receive both classroom and hands-on instruction and undergo some basic training in how to safely assist residents with medication. 

A8862, S6278: Relates to penalties for violations relating to residential care programs for adults

Currently, the maximum fine for violations is only $1,000, the same as it was in 1977, and facilities cannot be fined at all if they correct a so-called non-endangerment violation within 30 days, even if that violation caused actual harm. This bill will raise the maximum penalty to $5,000 per violation per day, which is half of the maximum amount for nursing homes, and requires DOH to levy a fine for any violation that harms a resident even if a facility has corrected and gives DOH discretion to levy a fine for violations that have the potential to cause serious harm. In addition, it permits DOH to levy a per violation fine in addition to a per day fine. From LTCCC’s perspective, the changes in A8862 are crucial steps to better protecting residents and ensuring that assisted living facilities follow, at least, the minimum standards. We think it is outrageous that current law allows facilities to have repeated violations and even cause harm to their residents without facing a penalty if they correct within 30 days. Likewise, it is absurd that fines for violating standards have not been raised in 35 years. Is it any wonder that scandalous conditions pervade many adult homes across New York?

A8870, S6274: Relates to requiring a registered nurse on staff at facilities certified for enhanced assisted living or special needs assisted living

Residents in Enhanced or Special Needs certified assisted living residences (assisted living with special certification to provide care for people with significant dementia or frailty) do not need full-time nursing care, but they do require a professional to both monitor and assess their needs. These residents are the most vulnerable to becoming unstable and in need of 24 hour skilled care. Unfortunately, under current law, these facilities are not required to have a licensed nurse onsite to monitor the health of these residents day-to-day and ensure that they are being properly cared for in an assisted living setting. A8870 would require facilities with these special certifications to employ a registered nurse full time, one shift a day, five days a week, on-site, to assess and monitor the condition of each resident.

 What You Can Do:

Please send an email or letter to your legislator and legislative leaders, urging them either to join Assemblyman Gottfried as a sponsor on these bills or to sponsor similar bills in the Senate. Go to: www.ltccc.org. In the right-hand column, click on the action alert: PROTECT ASSISTED LIVING RESIDENTS. Send your emails or letters. If you are able, please call your legislator and leave a message asking him/her to join in sponsoring these bills. To find your legislator, go to our LTC Citizen Action Center on our website or see the back page of this newsletter.

January 2012:

MEMO IN SUPPORT OF LEGISLATION TO PROTECT ASSISTED LIVING RESIDENTS & FOSTER A ROBUST INDUSTRY IN NEW YORK STATE 

 The Long Term Care Community Coalition, a coalition of eighteen consumer, civic and professional statewide organizations, strongly supports the following legislation: Assembly bills 8870, 8861 and 8862 (Senate bills 6274, 6279 and 6278). Each of them is needed to protect assisted living residents (especially those with dementia and heightened frailty) and ensure that as the industry grows to meet the needs of our aging population it leaves behind the poor care and scandalous conditions that have plagued so many providers over the years in New York and across the country. 

S6274, A8870: RN Requirement

“Enhanced Assisted Living Residences” (EALRs) and “Special Needs Assisted Living Residences” (SNALRs) are categories of assisted living residences catering to individuals who are seriously impaired. These individuals are inherently more fragile and more likely to be or become unstable and need full-time assistance than the general population of assisted living residents. Although under current regulatory requirements RNs are available “on call,” there is no system in place for residents to receive ongoing, in-person, professional monitoring or assessment. An RN must be on-site at least five days a week for at least one shift a day to conduct needed monitoring and assessment for this level of assisted living. 

S6279, A8861: Aide Training

Direct care aides are responsible for providing the vast majority of care in adult homes, including assisting residents with activities of daily life such as bathing, eating, and walking. Despite this level of responsibility, there is no uniform course of training required for direct care staff in adult homes in New York, only guidelines. In addition, although adult care facilities do not provide 24 hour skilled nursing care, their residents often suffer from multiple health problems, take multiple medications, or in some other way depend on 24/7 monitoring. Medication management is a major issue in ACFs. A recent study by LTCCC indicated that 25 percent of the medication deficiencies given to facilities by the Department of Health are repeat violations.

It is crucial that a uniform training program with a standardized curriculum for direct care staff is established to ensure that all personnel who provide direct care to residents have received a basic level of training, of which a significant portion relates to medication management.

S6278, A8862: Penalties

Currently, the law mandates that assisted living facilities that commit violations be permitted 30 days to correct those violations before incurring any fines, unless the violation is "endangering a resident" (which is narrowly defined). Thus, a facility can avoid a fine even when they have caused harm to a resident by correcting and going out of compliance again and again. A recent LTCCC report indicated that many facilities were in fact repeating resident care deficiencies year after year. Additionally, the law states that fines may only be levied for each day a violation exists, and that facilities can only be fined up to $1000 per day for each violation, no matter how serious. It is crucial to remove the ability of a facility to correct before a fine can be levied. Permitting assisted living facilities to have a thirty day grace period to correct violations without fines essentially means they can repeatedly harm residents or put them at risk of harm without ever receiving a sanction. Although not all violations harm residents – some put residents at risk of harm without actually harming them – the DOH should be permitted to determine whether violations that put residents at risk of harm merit a 30 day rectification. Violations that harm residents should incur fines without an opportunity to rectify. DOH must also have the ability to levy a fine for any one incident of a violation in addition to a per day fine. Even a violation that lasts for only one day may be significant. Without this, the law is focusing, inappropriately and artificially, on the duration of a violation rather than on whether there was a violation of minimum standards and the resulting harm or risk of harm to residents.

Lastly, the maximum amount of a fine must be raised. The fines for violations committed by assisted living facilities have not been raised since 1977. As a result, their ability to serve as a deterrent to poor care is negligible. The proposed maximum fine of $5,000 is only half of the current maximum state fine for nursing home violations (itself an outdated amount). A violation, especially one for harming a resident, is no less harmful to the resident in assisted living than the resident in a nursing home.