This is a listing of provisions that NHCC has found to be most essential for the safe and fair operation of assisted living facilities. It is in not intended to be taken as a legislative draft or an inclusive set of legislative provisions; it is a proposed starting point for the protections and responsibilities that we believe must be included in the coming legislation. To illustrate that this is not an inclusive list, we acknowledge that legislation or regulation will have to cover the following issues which are not included in this document: (1) administrative issues such as personnel, record keeping, disaster and emergency planning, resident funds and valuables; and (2) care issues such as medication management, staffing requirements and food service. As discussions go forward and the legislative process takes shape, we would like to be included in discussions on these issues, of which we will speak in detail.

This document is the result of months of policy sessions and a comparative review of assisted living legislation and proposals from across the nation. In addition to original provisions, the list incorporates concepts and regulations from the New York State adult home regulations, legislation in states such as Oregon and the legislative proposal of State Senator George Maziarz that passed through the Senate last fall. It does not replace the existing Department of Health (DOH) Adult Home regulations nor allow licensed adult homes to be considered Assisted Living facilities, it applies similar regulations to a new category of housing.

I. Definition

Assisted living facilities are residential entities that either provide or arrange services required by self-directed or cognitively impaired residents as their needs for personal care and health services change over time. These services include, but not limited to feeding, bathing, dressing, transferring, ambulating, and supervision of medication to 5 or more individuals who are unrelated to the owner or operator of such entities.

Philosophy: Assisted living should provide an array of services for its consumers based upon the following principles:
1) Incorporating the individual's life preferences and promoting individual self-direction.
2) Creating the least restrictive possible home environment.
3) Promoting the safe aging-in of residents within a facility.
4) Perceiving and treating the resident in a holistic manner.
5) Valuing residents, staff and family as integral parts of a dynamic community.
6) Accurately presenting what the facility offers and living by this.
7) Developing a system responsive to residents' needs for transition to other levels of care.
8) Promoting a secure, stable living environment with a sense of permanence to the extent possible.
9) Promoting and facilitating the creation and operation of resident councils that participate in the policy making of the facility.
10) Providing or arranging for a wide and diverse variety of activities, appropriate to resident needs.
11) Providing a variety of food plans.

II. Aging in Place

This is a primary aspect of assisted living and a primary expectation among its consumers. Facilities must encourage the possibility of aging in place with an environment and culture that promotes a healthy and satisfying life for residents. Facilities must responsibly assess their own capacity for continuing to provide for each resident's needs and safety, and increasing that capacity should it be determined that they are incapable of fulfilling any obligations or commitments made upon admission.

III. Tenancy Rights

A) Assisted living contracts constitute a landlord-tenant relationship with all of the corollary rights and responsibilities of both the tenant and landlord.
B) Any increase in rent must be reasonable, as defined by the Department of Health.
C) Tenants have the right to renew their lease (except for cause).
D) Landlords are obligated to maintain essential services and other services outlined in the contract.
E) Facilities will be allowed to end a lease only as defined in the discharge section of this document.

IV. Resident Rights

A) Each operator must adopt a binding statement of its residents' rights and responsibilities.
B) Operators must, at minimum, respect and protect the following list of rights. A list of these rights must be included in admission materials and be posted in a conspicuous location in a public area of the facility:

1) Civil rights shall not be infringed. This includes, but is not limited to, protections on the basis of race, religion, ethnicity, sexual orientation and gender identity.
2) Religious rights and liberties shall not be infringed.
3) The right to communicate, in any form, with anyone, with privacy respected and protected.
4) Residents may present grievances on either their own behalf or on the behalf of other residents, to the administrator or facility staff, the Department or other government officials or any other parties without fear of reprisal.
5) Residents shall have the right to join with other residents or individuals to work for improvements in resident care.
6) Residents shall have the option to manage their own finances.
7) Residents retain the right to privacy in his/her own room and in caring for personal needs.
8) Confidentiality will be protected with regard to treatment of personal, social, financial and health records.
9) Residents will receive courteous, fair and respectful care and treatment at all times, and shall not be physically, mentally or emotionally abused or neglected in any manner.
10) Residents shall not be physicallyor chemically restrained nor locked in a room at any time.
11) Residents shall not be obliged to perform work.
12) Residents shall have the right to include their signed and witnessed version of the events leading to an accident or incident in which they are involved in any reports of such accidents or incidents.
13) The operator shall develop written procedures and shall establish and maintain a system to receive and respond to grievances and recommendations for change or improvement in facility operations and programs which are presented by residents.
14) The operator shall execute with and provide to each resident, at, or prior to, admission and periodically thereafter as changes necessitate, a written residency agreement, printed in legible, easily read type, in plain English or the language of the resident. Operators must meet all provisions of this agreement andmake any changes necessary to meet these provisions as they may occur over time.
15) All residents, or their representatives, retain the right to review any files that the facility maintains on the resident's behavior and health, and to contest any of those files' contents or other behavior reports with the facility and/or DOH.
16) Residents shall have the right to receive and send mail or any other correspondence unopened and without interception or interference.
17) Residents retain the right to leave and return to the facility and grounds at all hours.
18) Residents have the right to designate a family member or friend as their representative to be recognized by the facility to act on the residents' behalf for all decision-making issues.

VI. Resident Organizations

The operator shall allow, encourage and foster the formation of resident organizations, which have a say in the facilities' policy making. To this end the facility must:
A) Have a resident council.
B) Provide private space.
C) Ensure that the organization(s) meet(s) as often as the membership deems necessary.
D) Ensure that the organization(s) is/are chaired and directed by the residents.
E) Allow the organization to meet with any member of the supervisory staff, provided that reasonable notice of the request is given to such staff.
F) If desired by the council, appoint a staff person to act as an advisor to the residents' organization, who shall serve as a liaison between the organization and administration to report all problems, issues and suggestions discussed by the residents which require administrative action.
G) Assure that any complaints, problems or issues reported by the residents' organization to the designated staff person or administration be addressed, and that a written report addressing the problems, issues or suggestions be sent to the organization within 30 days.

VII. Licensure

Any facility that meets or purports to meet the above definition or markets itself as "assisted or assistive living" must be licensed by the state as an Assisted Living facility. As part of the licensure process, a facility's operator must pass character and competence evaluation by the DOH.

VIII. Admission/Retention

Assisted living facilities may admit any resident for whom they are able to care according to the assessment tool defined below. The assessment tool not withstanding, assisted living facilities will not be permitted to admit or retain residents who need 24 hour skilled nursing care.

Assessment

A) A uniform assessment tool for admission to all assisted living facilities is to be created by DOH
within one year of the passage of this bill. This tool will be developed with the input of providers and consumer groups.

(1) Facilities would have to apply such a tool before approving a resident for admission or retention in a facility. The tool will be applied annually or upon a significant change in a resident's condition. The tool will assess a person's functional, cognitive, health, and psychosocial needs. Residents and their representatives shall be involved in the assessment.
(2) The State will be required to monitor both the use of the tool as well as the appropriate admission and retention of individuals. Facilities will need to demonstrate to DOH their ability to admit or retain anyone not currently permitted to be admitted or retained in adult homes, using guidelines to be developed by DOH.

B) Until the assessment tool is developed, present adult home admission and retention regulations will prevail.
C) A care plan shall be developed in conjunction with the resident and his/her representative, which identifies, among other things, services that the operator will provide or arrange for the resident, when and how often the services will be provided, and how and by whom services will be provided and accessed. This plan will be updated at least annually and more often, whenever there is a significant change in a resident's condition.
D) DOH will have the ability to sanction facilities that admit or retain people for whom their staff cannot care.

Admission Packet

E) Upon admission, residents must be given an admission packet, including, at minimum:

1) A copy of the residency agreement in no less than twelve point type and written in plain language, in English or the language of the resident.
2) A statement of resident rights, both as defined by the State and any rights contained in the facility's charter.
3) Contact information for the local Ombudsman office and a fact sheet about the Long-Term Care Ombudsman program
4) A listing of the legal services or advocacy agencies made available by the Department of Health.
5) Information on all resident organizations in the facility (including the names of organization leaders).
6) Information on how to appeal any facility actions and determinations that could be used to restrict the liberties or lead to the involuntary discharge/transfer of a resident, including any appropriate phone numbers for appeals offices within the DOH.

Residency Agreement

F) The residency agreement will include:

1) Name, street address and mailing address of the residence.
2) Name and mailing address of the owner of the residence and at least one natural person authorized to accept personal service on behalf of the owner of the residence.
3) Name and address of the operator.
4) Name and address of at least one natural person authorized to accept personal service on behalf of the operator.
5) A statement of the licensure status of the operator and any provider providing home health care service under an arrangement with the residence.
6) A copy of any facility regulations relating to resident activities, office and visiting hours and like information.
7) A list of the services, material, equipment and food required by law or regulation.
8) A list of services, material, equipment, food, and other provisions the operator and resident/resident's representative agreed will be provided to meet existing or future special needs of the resident.
9) A schedule of due dates for payment and the basic monthly, weekly or daily payment for services, material, equipment and food required by law or regulation.
10) A detailed listing and schedule of any other services, materials, equipment and food which the operator agrees to furnish and supply to the residents during the period of the residency agreement. Such schedule shall include the basis for charges for such supplemental services and supplies.
11) A guarantee that charges for such supplemental services and supplies shall be made only at resident option and only for services and supplies actually provided to the resident.
12) A list of the conditions and procedures under which the operator may adjust the basic
monthly, weekly or daily rate or charges for supplemental services and supplies.
13) A statement of the actual rate charged the resident.
14) A list of any and all money, property or things of value given or promised to be given to the operator, on admission or at any other time, including any agreements made by third parties for payments for the benefit of a resident.
15) A statement that the operator offers to each resident who is a recipient of SSI or HR (Home Relief), or representative payee, an opportunity to place personal funds for incidental use in a facility-maintained resident account, and further indicate resident and representative payee acceptance or rejection of this offer. State the terms and conditions under which the resident or operator may terminate this agreement.
16) A statement of the grounds, as defined by State regulation, under which the operator may terminate the residency agreement without the consent of the resident or representative.
17) A complete list of the operator's obligations to the resident in case of any form of discharge, be it voluntary or involuntary.
18) Information about the resident right to terminate the residency agreement.
19) A statement of common services not provided in the basic rate and the additional costs, if any.
20) The appeals process for involuntary discharge.
G) Applicants denied admission, must be given a letter detailing the reasons for this denial.

IX. Discharge/Transfer

Reasons for Discharge

A) Facilities may only discharge a resident involuntarily for one or more of the following reasons:

1) Facility is unable to care for the resident.

a) However, facilities may not discharge residents on the grounds that they cannot care for a resident in situations in which the facilities agreed upon the time of admission that they could care for the special needs they now claim an inability to care for. In situations in which the facilities change their staffing or physical structure such that they can no longer care for such special needs, the facility must take responsibility to meet these needs and make special arrangements to care for any residents for whom such needs were originallypromised to be met.
b)Upon a facility's determination that it cannot serve the needs of a resident, it must contact the DOH to initiate a review of whether the facility cannot, in
fact, meet those needs.

2) Resident poses a realistic danger to himself or others.

a) Any risk that a resident is considered to pose to him or herself or others, however, must be documented and reviewed on survey by State surveyors, and the facility must make any and all reasonable attempts to safeguard the resident, other residents and/or the facility against such perceived risks.
b) Such risk must be an actual and realistic threat. Guidelines will be established by the State to determine whether behavior is, in fact, actual and realistic, and a state panel will review all cases of documented behavior. Only cases that this panel agrees constitutes a realistic threat can be used by a facility in determining to discharge a resident for behavioral reasons.

3) If, after reasonable and appropriate notice, the resident is unable to pay (or have SSI
and/or Medicaid pay for) his or her stay, resident may not be discharged if: (a) a charge is in dispute, (b) an appeal or a denial of benefits is pending; or (c) funds are not actually available or, it they are, the resident is cooperating with the home in getting the funds.

Discharge Notice

B) When a facility moves for an involuntary discharge/transfer for any reason, it must issue a 30 day
written notice (hand delivered) to the resident, his next of kin and his designated representative.
C) The written notice must include:

1) A statement informing the resident of the right to appeal this discharge/transfer
decision to the DOH with a telephone number to call.
2) A list of free local legal services and advocacy resources, including the local social services district and Ombudsman.
3) The reason for the termination, the date of the termination, and that the resident has the right to remain in the facility until appeal or court proceeding has concluded.
4) The operator shall abide by state-defined procedures in the event the resident or surrogate can no longer pay for the residence's services.
5) The operator shall abide by terms governing the refund of any prepaid fees or charges in the event of discharge or termination of the resident agreement.

Discharge Rights

D) The resident has the right to remain in the facility while any appeal is pending.
E) The resident has the right to object to the termination of the agreement and the subsequent discharge. In such instances that a resident objects to the discharge, in addition to the appeal rights described below, a facility must obtain prior court approval before initiating discharge proceedings.
F) The facility must guarantee that, upon discharge or transfer, the resident or the resident's representative shall receive a final written statement of his or her payment account and personal allowance account, and be immediately returned any monies, property or things of value held in trust or in custody by the operator or which come into possession of the operator after discharge or transfer.
G) When the basis for a discharge or transfer no longer exists, and the resident is now deemed appropriate for placement or retention in the facility, the operator shall readmit him, even if involuntary termination proceedings have begun.
H) Transfer of a resident without notice of termination shall not be deemed a termination of the residency agreement. Such removal shall not relieve the operator from the requirement of proceeding,
subsequent to the removal of the resident, to terminate the residency agreement.
I) While legal action is in progress:

1) The operator shall not seek to amend the residency agreement in effect as of the date of the notice of termination.
2) The operator shall not fail to provide any of the care and services required by department regulations and the residency agreement.
3) The operator shall not engage in any action to intimidate or harass the resident.

J) The operator shall, in the event of a legal or voluntary discharge, assist any resident, proposed to be transferred or discharged, to the extent necessary to assure the resident's placement in care settings which are adequate, appropriate and consistent with his wishes.

Discharge Notification Requirements

K) In addition to the prescribed termination notice, the operator shall furnish to the resident a list of
agencies, including the Long Term Care Ombudsman Program, providing free legal services and
agencies engaged in resident advocacy services within the geographic vicinity of the facility.
Such lists must be provided or approved by the department and shall include names, addresses and telephone numbers.
L) A copy of the termination notice shall be filed by the operator with the appropriate DOH regional office within five days after the notice is served upon the resident.

Discharge Planning

M) The operator must assist any resident, proposed to be transferred or discharged, to the extent necessary, to assure the resident's placement in care settings which are adequate, appropriate and consistent with his/her wishes. A individualized discharge plan must be written and signed by the resident/representative.

Discharge Appeals

N) The resident has the right to appeal any discharge to DOH and has the right to stay in the facility under the appeal decision is reached.
O) Materials concerning the appeals process must be distributed to residents, their next of kin, and their representatives during both admission and upon serving notice of involuntary discharge.

XI. Disclosure

A) The operator shall collect and maintain such information, records or reports as determined by the department to be necessary.
B) All facilities are required to disclose, at a minimum, the information listed in this provision in any marketing materials and in the admissions package.
C) At minimum, all facilities must disclose:

1) The name, street address and mailing address of the residence
2) The name, street address and mailing address of the residence.
3) The Name and mailing address of the owner of the residence and at least one natural person authorized to accept personal service on behalf of the owner of the residence.
4) The name and address of the operator.
5) The name and address of at least one natural person authorized to accept personal service on behalf of the operator
6) A statement of the licensure status of the operator and any provider providing home health care service under an arrangement with the residence.

D) DOH may examine the books and records of any facility to determine the accuracy of the annual financial statement.
E) The operator shall post the following documents:

1) Operating certificate.
2) Inspection report for the most recent complete or summary inspection, with any related follow-up inspection reports.
3) Statement of rights of residents
4) Month worth of menus.
5) Monthly activities schedules.
6) Evacuation procedures.
7) Notice prohibiting employee acceptance of remuneration, tips or gratuities.
8) Schedule of times residents may have access to their personal allowance accounts.
9) Procedures for presenting grievances and recommendations.
10) Discharge process.
11) Name/title of any in-house medical personnel.

F) Each facility must provide information listed in this section with any marketing materials provided to potential residents. Such materials must include:

1) The names of any entity with an ownership interest in the facility, including any ownership interest in the facility held by the facility's operator and names and addresses of members of the Board of Directors, if applicable.
2) The facility's financial information, including ownership, liabilities and assets.
3) A full list of services provided by the facility.
4) Staffing levels and the training staff has received.
5) A complete list of resident conditions the facility cares for.
6) A list of services not covered by the basic rate and any additional costs for those services.
7) A list of specialized activities available for disabled or cognitively-impaired persons.

XII. Consumer Information

The State, through either the State office on Aging and/or the Department of Health, will create:
1) A consumer guide to assisted living to be widely distributed and made available on the Internet.
2) A check list of indices that will allow consumers to easily compare the provisions at facilities, including, but not limited to: activities, services and rates.
3) An Internet Web site that offers comparative information on all licensed assisted living facilities as well as the information in a hard-copy publication.

XIII. Oversight

A) In the absence of a state-funding mechanism, a $50 per bed surcharge will be assessed annually to each facility, the proceeds of which will be divided between the funding of additional inspectors for the DOH and the local Long-Term Care Ombudsman.
B) The purview of the State Office for the Aging's Long-term Care Ombudsman Program will be expanded to include assisted living facilities.
C) Any assisted living facility that violates any provision of this law shall be liable for a civil penalty not to exceed $5000 for each violation. Any assisted living facility, which within a 24 month period commits a violation for which it previously was assessed a civil penalty during such period, shall be liable for a civil penalty not to exceed $10000 for each recurring violation.

XIV. Licensed Adult Homes

A) These regulations will not affect the existing regulations for adult homes, enriched housing or Assisted Living Programs (ALPs). Adult homes, enriched housing and ALPs are still State categories of senior housing, which shall not be impinged by this legislation. Existing licensed adult
homes that meet the definition of assisted living, however, will need to meet all of the regulations covering an assisted living facility. Other than ALPs, facilities will need to apply for licensure and go through a character and competence review.
B) DOH may create a fast track program for licensing these already licensed facilities, but all of the provisions for licensure will need to be met.

XV. Risk Taking

A) Facilities may not prevent residents from participating in activities of their choice or refusing treatment, unless it can demonstrate that such activities will pose a threat or burden to others, or that the individual does not understand the consequences of their behavior.
B) DOH will develop guidelines which include the responsibility of a facility to effectively explain any risks involved in resident actions to assure informed resident consent (or informed family consent for the cognitively impaired).
C) If self-directing residents expect to be away from the facility for overnight, they must provide the facility with information on how they can be contacted and where they can be reached.

1) If a self-directing resident is missing at bed time or for 12 consecutive hours, the facility is responsible for locating the resident and notifying the authorities.
2) If a cognitively-impaired resident is missing, the facility is responsible for locating the resident and alerting the local authorities immediately.

XVI Program Review

Five years from the date the new assisted living legislation takes effect an independent body will conduct a year-long review of the program, focusing on DOH's ability to meet consumer needs and effectively monitor assisted living programs.

NHCC's Subcommittee on Assisted Living

Ann Berson,
Alzheimer's Association, NYC Chapter

Judy Brickman,
social work consultant, NYC Department for the Aging

Ellen Ensig-Brodsky,
US Federal LTC Surveyor, Retired

Olivia Filerman and Ethel Paley,
Women's City Club of NY

Janet Haebler, MSN, RN,
New York State Nurses' Association

Margaret Hadad,
Long Term Care Ombudsman Program of MHA Westchester

Geoff Lieberman,
Coalition of Institutionalized Aged and Disabled

Cynthia Rudder and Mike Eskenazi,
Nursing Home Community Coalition of New York State