Assisted Living: New York Bill Compared to Connecticut Law

OLR Research Report


July 15, 2002		2002-R-0584
ASSISTED LIVING: NEW YORK BILL AND CONNECTICUT LAW

By: Helga Niesz, Principal Analyst

You asked for a description of the New York governor's assisted living bill and a comparison of it to current Connecticut law.

SUMMARY

Assisted living is available to people who do not need full nursing home services, but require some health care, nursing, or assistance with activities of daily living, such as dressing, eating, bathing, toileting, or transferring from a bed to a chair. In Connecticut, private assisted living facilities are aimed at people age 55 or older. The New York bill targets this population and younger disabled adults.

The New York bill (S7545), which we have enclosed, was referred to the Senate Rules Committee on June 5, 2002. But the legislature adjourned in late June without taking any action on it. The bill would have required the New York Department of Health to regulate, inspect, and supervise assisted living residences; required them to register with the department; set admission standards; and given the health commissioner enforcement powers. It would have required an assisted living residence to execute a detailed residency agreement with a tenant, specified the agreement's content, and required other disclosures before the resident moves in, including a listing of the residents' rights and disclosures about termination of residency agreements. It also would have required disclosures in marketing materials.

Although people informally refer to "assisted living facilities," Connecticut law never uses that term and does not license the physical facilities where assisted living services are provided. Instead, the state licenses the assisted living services agencies (ALSAs) that provide these services, which include nursing services and help with activities of daily living. The ALSA can only provide these services at a "managed residential community" (MRC) that meets certain requirements, including providing certain core services.

Connecticut regulations also require certain disclosures, primarily by the ALSA, not the MRC. The state has no specific requirements for a detailed residency agreement or specific disclosures in marketing materials. The regulations do require the ALSA to make certain disclosures and give its clients a "bill of rights" containing certain information. Some of the required items are the same as those in the proposed New York residency agreement, statement of rights, marketing materials, and other disclosures.

NEW YORK'S BILL (S7545)

Assisted Living Residence Registration and Definition

The bill would have required entities that hold themselves out as providing assisted living services to register with the state Department of Health and comply with the bill's requirements. It defined "assisted living" as providing or arranging for:

1. room, board, common dining and leisure space, and other services required in the bill or under regulations,

2. a home-like setting for five or more adult residents unrelated to the provider, and

3. services for eligible people who are unable, or substantially unable, to live independently and who are at least 55 years old, or who are physically disabled, at least 18 years old, and in need of assistance with activities of daily living.

According to the bill, assisted living services would include direction and assistance with activities of daily living (bathing, dressing, grooming, eating, ambulation, toileting, or similar tasks), monitoring, home health care services, case management, housekeeping, laundry, linen, activities, and the preparation and periodic review of each resident's individualized service plan. Additional services could also include concierge-like services and transportation.

Under the bill, assisted living would not have included residential health care facilities, general hospitals, continuing care retirement communities, residential services for mentally ill people, homeless shelters for adults, naturally occurring retirement communities. The bill also would have exempted adult homes, enriched housing programs, residences for adults, and assisted living programs that do not market themselves as providing assisted living services.

The bill would have required a provider to give each resident considerate and respectful care designed to permit a resident to age in place and to promote his dignity, autonomy, independence, and privacy in the least restrictive and most home-like setting commensurate with his preference and physical and mental status.

Department Duties and Administrative Procedures

Under the bill, the health commissioner would have had to develop registration application forms and establish registration procedures and timeframes and set the annual registration fee. The bill specifies the minimum information on an application. Among other items, the application would have had to state whether the provider intended to serve people with dementia or cognitive impairment in a special program or in special units or areas and document to the department's satisfaction that these residents' needs could be appropriately and safely met. The documentation would have had to include at least (1) a written description of specialized services, staff training and background, or other relevant special characteristics and (2) information about the character, competence, and financial resources of anyone who would be providing personal care, monitoring, home health care, or other services.

No assisted living residence could have begun operating until it received the department's written approval. The department could grant its approval only if the applicant demonstrated good moral character; was competent to operate the residence; had adequate financial resources; and showed that the building, equipment, staff, standards of care, and records complied with the law. Applicants would have the right to an administrative hearing if their applications are disapproved. After approval, the provider would have to notify the department of certain subsequent changes.

The bill would have required the provider to file a financial statement with the department at least annually, following standards the department sets, and accompanied by an independent licensed accountant's opinion. The provider would also have to maintain (1) a written plan detailing procedures for proper protection of residents and staff in case of an actual or threatened emergency or disaster, (2) a record of accidents or incidents involving residents, and (3) any additional records required by the department. The bill would have prohibited a provider from releasing facts and information that are part of an individual resident's records without his written permission, except in certain specified cases.

The bill would have required the commissioner, among other duties, to issue regulatory changes related to home health care and assisted living; make appropriate referrals to other government agencies if the provider or resident does not comply with legal requirements; and revoke, suspend, or limit a registration, after a hearing, if he determines a provider has not complied with the law.

Any provider who violates the bill would have been subject to a civil penalty up to $ 5,000 for each violation and in some cases $ 10,000 for recurring violations.

The bill also would have allowed the health department to investigate the affairs and management of any assisted living residence. It would have required the department to conduct at least one unannounced full inspection of each facility annually, except that it could alternatively inspect residences that were in compliance at their most recent full inspection only every 18 months.

The full text of the bill is available at http: //assembly. state. ny. us/leg/?bn=S07545&sh=t

CONNECTICUT

Connecticut's rules on assisted living are in Department of Public Health (DPH) regulations. These regulations were first issued in 1994 and, among other things, require ALSAs to be licensed.

Assisted living services are defined as nursing services and assistance with activities of daily living provided to clients living in a managed group environment (e. g. , an MRC) that has support services that encourage clients age 55 or older to maintain a maximum level of independence. The living units must include a full bathroom, but they need not offer food storage and preparation equipment, only access to it (Conn. Agencies Reg. , § 19-13-D105).

The MRC itself must, at a minimum, provide the following "core" services:

1. three meals a day,

2. regularly scheduled housekeeping and laundry service for personal laundry and linens,

3. regularly scheduled transportation for personal shopping, social and recreational events, healthcare appointments and similar needs,

4. maintenance service for the living units, and

5. social and recreational programs.

In addition, the MRC must provide 24-hour security, emergency call systems in each living unit, washers and dryers, and common use space big enough to accommodate 50% of the tenant population.

Each MRC must employ an on-site service coordinator with a human services background and prior supervisory or management experience. The coordinator's main responsibilities include making sure services are available to the clients, helping tenants meet their needs, establishing collaborative relations with other service agencies and community resources, establishing a tenant council, serving as a liaison with the ALSA's quality assurance committee, and ensuring that a tenant information system is in place.

The ALSA must have a supervisor, who must be a registered nurse. The supervisor's responsibilities include coordinating and managing all nursing and assisted living aide services rendered to the tenants.

Any agency providing assisted living services must be licensed as an ALSA. Assisted living services may be offered in one of several ways: (1) an MRC, for example, could provide only the "core" services and contract with an ALSA for the assisted living services; (2) the MRC, which the state would not otherwise regulate, could become an ALSA; or (3) a home health care agency could contract with the MRC, but would need to obtain an ALSA license in addition to its home health care license.

Table 1 compares the major provisions and consumer protections in the New York bill to the Connecticut regulations.

Table 1: Comparison of New York Assisted Living Bill with Connecticut Law

	*New York Bill (S7545)*	*Connecticut Assisted Living Law*
Licensing	Would require an "assisted living residence" to register with the Department of Health and obtain and maintain all other required licenses, permits, registrations, or other government approvals.	DPH licenses the ALSA, which may but does not have to be the facility itself. The facility where services are provided does not have to be licensed, but must at least qualify as an MRC by offering "core" services and must give DPH unrestricted access to the community, tenants, and tenant-related documents (CGS § 19a-490(l), Conn. Agencies Reg. § 19-13-D105 (b) and (c) (3) and (9)).
Physical Facility Regulation	Registration would apply to the physical "assisted living residence. "	No licensing of MRC physical facilities required. But MRC must notify DPH of its intention to provide assisted living services and submit certain required information, including, among others, evidence of compliance with local zoning ordinances and building codes, as well as the state fire safety code; a description of how the MRC informs residents that it is not licensed; how it informs residents of the assisted living and home health care services available; how residents can obtain itemized costs of services delivered; and an attestation that it is regularly delivering the required "core" services (Conn. Agencies Reg. § 19-13-D105 (c)).
Initial and Periodic Resident Assessments	Would require provider, jointly with a home care services agency, to conduct an initial pre-admission assessment to determine whether an individual is appropriate for admission. Provider could not admit anyone unless the assessment determines that he is eligible and that the residence can meet his needs. Reassessment required at least every year or as often as needed to respond to changes in condition or determine continued eligibility. The assessments would have to use a specific assessment tool approved by the Department of Health. The decision to admit or retain an individual would have to be based at least in part on a review of a physician's report, which the prospective resident must submit. The bill prescribes in detail what the physician's report would have to contain.	The ALSA can provide services to clients with chronic and stable conditions as determined by a physician at least annually. The determination must be in writing and kept in the client's service record. Each ALSA must establish written criteria for admission to assisted living services and written policies for discharge (Conn. Agencies Reg. § 19-13-D105 (e) (7), (8), and (9)). An ALSA registered nurse must be responsible for developing a client service program and instructions for assisted living aides and for assessments done as often as necessary based on the client's changing condition, but at least every six months (Conn. Agencies Reg. § 19-13-D105 (h) (3) (B) and (C)).
Individualized Service Plan	Would require the provider, upon admitting a resident, to develop an individualized service plan for him, in conjunction with the resident or the resident's representative, his physician, and a home care agency. The plan would have to be reviewed and revised at least every year or as often as needed to reflect changing care needs. To the extent possible, it would have to accommodate the resident's preferences and include the services to be provided and state when, how often, and by whom they would be provided.	"Client service program" means a written schedule of assisted living services to be provided to, reviewed with, and agreed to by the client or the client's representative (Conn. Agencies Reg. § 19-13-D105 (a) (6)). An ALSA registered nurse must develop the client service program within seven days of admission and review it at least every six months. The program must reflect the client's preferences and be explained to, reviewed with, and agreed to by the client (Conn. Agencies Reg. § 19-13-D105 (k) (2)(H)). The ALSA may contract with another organization to develop the client service program, but a written contract between them must specify each participating entity's responsibilities (Conn. Agencies Reg. § 19-13-D105 (e) (5) (D)).
Changing Circumstances and Disclosures	The provider would have to adjust the amount of assistance and services according to the resident's changing needs. It would also have to inform the resident, before admission, that the provider will make reasonable efforts to help the resident age in place, but there may come a point where the provider cannot furnish adequate and appropriate services to support the resident safely and he may no longer be eligible to stay there. If this happens, the provider would have to initiate procedures to terminate the residency agreement.	An ALSA registered nurse must be responsible for prompt action when a change in the client's condition requires a change in his service plan (Conn. Agencies Reg. § 19-13-D105 (h) (3) (C)).
Consumer Protections	Would prohibit the provider from (1) accepting prepayments for more than three months in advance; (2) using deceptive or coercive marketing practices; (3) barring the state ombudsman, his representative, or a local ombudsman entry to the residence or not cooperating with them while they are carrying out their duties; (4) preventing residents or staff from communicating freely and privately with the ombudsman; (5) using physical or chemical restraints on residents; or (6) terminating a residency agreement or evicting a resident except as allowed by this bill and existing landlord-tenant law (residents are considered tenants and have all the rights that other tenants have).	No specific provisions, but using deceptive or coercive marketing practices would probably be covered under Connecticut's Unfair Trade Practices Act. Connecticut regulations provide for termination of assisted living services by the ALSA and landlord-tenant law would apply to the MRC (see below).
Residency Agreement	Would require the provider to execute a residency agreement with the resident and specifies the agreement's contents, including, among other items, the term of the agreement, a description of the services to be provided in the base rate and supplemental services available for an additional fee, and fee schedules for service costs. The agreement would have to include (1) a statement of whether the provider will accept non-private payment sources, such as pensions, social security, supplemental security income, Medicare, or Medicaid; (2) a statement of what a privately paying resident can expect if he can no longer afford payment; (3) a description of the process and terms for modifying, amending, or terminating the agreement; and (4) a description of the complaint resolution process. The agreement would also have to list, among other items, the criteria for admission and continued residence, referral procedures if the contract is terminated, billing and payment procedures, and a contact at the residence for inquiries.	No specific requirement for a residency agreement or its contents, but MRCs are to some extent subject to normal landlord-tenant laws. An MRC must include in its notification to DPH, a description of the information provided to tenants informing them of the assisted living and home care services available for individual use and information on how to obtain the itemized cost of services provided (Conn. Agencies Reg. § 19-13-D105(c) (1) (E)). Some of the required items in New York's residency agreement are included in the bill of rights the ALSA must provide and explain to the client at the time of admission to services (see below). The ALSA must establish a written complaint procedure that gives the client the right to file a complaint without discrimination or reprisal from the agency and describes how the agency will address and investigate complaints, and ensure that the agency will promptly attempt to resolve the complaints. The agency must maintain a complaint log and make it available to DPH upon request (Conn. Agencies Reg. § 19-13-D105 (e) (12)).
Pre-agreement Disclosures	Would require the provider to disclose to anyone expressing an interest in residing in the facility, upon request or prior to admission, whichever occurs first, in conjunction with marketing materials and the residency agreement, and to current residents who have not previously received the information: (1) the consumer information guide the health commissioner must develop; (2) the provider's legal or beneficial ownership interest in any entity that provides care, material, equipment, or other services to residents; (3) any pre-admission charges or fees; (4) information on the resident's ability to obtain services from entities with whom the provider does not have an arrangement, specifying who will be responsible for payment; (5) a statement that residents can choose their own health care providers for services the agreement does not cover, subject to limits that their third party payor may impose; (6) a statement about the availability of public funds to pay for services; (7) the health department's toll-free telephone number for reporting complaints; and (8) a statement about the availability of ombudsman services.	No specific requirement for early disclosure or requirements for marketing materials. But the ALSA must inform the client of some of these items at the time of admission to services and some are covered by the bill of rights (see below).
Residents' Bill of Rights	A provider would have to adopt and make public a statement of residents' rights and responsibilities, post it conspicuously in a public place, and give a copy of it to the resident at or before admission. The statement, at a minimum, would give residents the right to: 1. participate voluntarily in assisted living (prospective residents must receive enough information to make an informed choice); 2. exercise their civil and religious liberties, including the right to independent personal decisions and knowledge of available choices; 3. have private communications and consultations with his physician, attorney, and any other person; 4. present grievances to the residence's staff or administrator, to government officials, or to any person without fear of reprisal, and to join with others to work for improvements in resident care; 5. manage his own financial affairs; 6. have privacy in treatment and in caring for personal needs; 7. choose their own health care providers for services not covered by the residency agreement; 8. confidentiality in the treatment of personal, social, financial and medical records, and security in storing personal possessions; 9. receive courteous, fair, and respectful care and treatment and a written statement of the services provided by the residence, including those that have to be offered on an as-needed basis; 10. receive or send personal mail or any other correspondence without interception or interference by the provider; 11. not to be coerced or required to do work of staff members or contractual services and, if they voluntarily perform work at the residence, to receive fair pay for it; and 12. receive adequate, appropriate assistance with activities of daily living, to be fully informed of their medical condition and proposed treatment, unless medically contraindicated, and to refuse medication, treatment, or services, after being fully informed of the consequences.	ALSA must have a written clients' bill of rights and responsibilities and provide and explain it to each client at the start of services. The explanation must be documented in the client's service record. The bill of rights must include: 1. a description of available services, charges, and billing mechanisms with the assurance that any changes will be given to the client orally or in writing at least 15 days before they become effective; 2. criteria for admission to service; 3. information about the right to participate in planning for, and changes in, the care to be furnished, the frequency of visits, and the nurse supervising the care and how to contact her; 4. client responsibility for participation in the development and implementation of the client service program and the client's right to refuse recommended services; 5. the right to be free from physical and mental abuse and exploitation and to have personal property treated with respect; 6. an explanation of confidentiality of personal information in the ALSA's files; 7. the policy on the client's access to his service record; 8. an explanation of the complaint procedure and right to file a complaint without discrimination or reprisal, the ALSA's responsibility to promptly investigate the complaint, and how to register a complaint with DPH; 9. the client's right to have services provided by someone other than an employee of the ALSA; 10. circumstances under which the client may be discharged form the ALSA; 11. a description of Medicare-covered services and billing and payment requirements for these services; 12. information advising the client of his rights under state law to make medical decisions, including issuing advance directives such as living wills and durable power of attorney for health care decisions; 13. the right to make individual arrangements with an ALSA that does not have a formal contract with the MRC; and 14. the client's right to terminate or reduce ALSA services at any time (Conn. Agencies Reg. § 19-13-D105 (m)). (Some of these items are covered by the New York bill's provisions for the residency agreement and early disclosures and marketing materials. )
	A resident can also initiate a court action against a provider for violating the written residency agreement or the resident's rights.
Residency Agreement Termination Conditions	Would prohibit a provider from terminating a residency agreement unless: 1. the resident is no longer eligible for residence; 2. the resident's behavior poses an imminent risk of death or serious physical harm to himself or another person; 3. the resident has failed to make timely payments for authorized charges; 4. the resident's repeated behavior directly impairs his own or another resident's well-being, care, or safety or substantially interferes with the residence's orderly operation; or 5. the provider has had its authorization to operate a residence limited, revoked, or suspended or has voluntarily surrendered the authorization.	Each ALSA must develop a written discharge policy for terminating its services to a client and define at least the following categories: 1. change in client's condition (the client's condition is no longer chronic and stable), 2. routine discharge (the care goals have been met and the client no longer needs the services), 3. emergency discharge (safety issues place the client or staff in immediate jeopardy and prevent the agency from delivering services), 4. financial discharge (the client's insurance or financial resources have been exhausted), and 5. premature discharge (care goals have not been met and the client continues to need assistance) (Conn. Agencies Reg. § 19-13-D105 (e) (9)).
Agreement Termination Procedures	No residency agreement termination or involuntary discharge could occur until the provider gives the resident or his responsible party 30 days' notice and includes the termination reasons, the proposed discharge date, a statement of the resident's right to object, and a statement that if the resident does not leave voluntarily, the provider will start eviction proceedings. The provider would also have to give the resident a list of free legal services agencies in the region and other available community resources that provide resident advocacy services. But the notice could take place after the fact if the person is being sent for medical treatment to a hospital or nursing home or is being removed by a law enforcement officer because his behavior poses an imminent risk of death or serious physical harm.	No specific requirements.
Consumer Information Guide	The health commissioner, in consultation with the State Office of Aging director and assisted living providers, must develop a consumer information guide to help the consumer choose an assisted living residence.	No requirement for a specific government-sponsored.

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