CELJ comments on the Adult Care Facility Regulations.

November 1, 2018

Via email (regsqna@health.ny.gov) and mail

Katherine Ceroalo

New York State Department of Health

Bureau of House Counsel, Regulatory Affairs Unit

Corning Tower Building, Rm. 2438

Empire State Plaza

Albany, New York 12237

Re: Proposed Amendment of Parts 487, 488, 490 and 494 of Title 18 NYCRR (Admission and Retention Standards for Adult Care Facilities)

 Dear Ms. Ceroalo:

We are writing to comment on the Department of Health (“DOH”)’s proposed amendments to its adult care facility (ACF) regulations. ACFs include adult homes, assisted living facilities, enriched housing, residences for adults, and family type homes for adults.The Center for Elder Law & Justice (CELJ) is a non-profit civil legal services agency serving eight Western New York counties. We provide comprehensive free legal services to older adults, people with disabilities, and those who are financially eligible.  We have partnered with the local regional Long Term Care Ombudsman Program to increase advocacy and representation for those who reside in ACFs and other long-term care settings to ensure rights are upheld and individuals reside in their desired and appropriate setting of their choosing.

While the proposed amendment makes an attempt to address discrimination against individuals with disabilities, it is not enough. The regulations still require that ACFs discriminate against individuals with disabilities in order to comply with DOH regulatory requirements. For example ACF operators are still prohibited from admitting (or retaining) an individual who chronically requires the physical assistance of another person to walk or climb stairs.[1] Individuals who use wheelchairs, under this requirement, would still be barred from residing in an ACF solely for needing the physical assistance of another to walk or climb stairs. The discriminatory provisions do not end there. DOH regulations bar people who are chronically bedfast; people who are dependent on medical equipment; and people who have chronic unmanaged urinary or bowel incontinence.[2] These DOH regulations do not comply with the federal Americans with Disabilities Act or Olmstead v. L.C., 527 U.S. 581, 599-600 (1999), which held that unjustified segregation of persons with disabilities constitutes discrimination. Nor do the regulations afford for individualized assessments of persons with a disability seeking to reside (or continue to reside) in an ACF. Instead, the regulations require ACFs deny individuals with disabilities from admittance. There is no reasonable accommodation for the disability considered or provided. DOH must remove the provisions that bar individuals with disabilities from residing in an ACF. The result of the above provisions is the mass institutionalization of individuals with disabilities.  The institutionalization of people with disabilities directly violates the Olmstead decision. While the nursing home setting may be the appropriate and desired option for some individuals, it should not be the default option for all. We urge the DOH to strike all of its discriminatory admission and retention regulations.

Sincerely, 

Lindsay Heckler Staff Attorney

[1] 18 NYCRR § 487.4(c)(9); 18 NYCRR § 488.4(c)(9); 18 NYCRR § 489.7(b)(9); 18 NYCRR § 490.4(c)(11); 18 NYCRR § 487.4(c)(10); 18 NYCRR § 488.4(c)(10); 18 NYCRR § 489.7(b)(10); 18 NYCRR § 490.4(c)(12) [2] 18 NYCRR § 487.4(c)(8); 18 NYCRR § 488.4(c)(8); 18 NYCRR § 489.7(b)(8); 18 NYCRR § 490.4(c)(10); 18 NYCRR § 494.4(d)(e)(2);18 NYCRR § 487.4(c)(11); 18 NYCRR § 488.4(c)(11); 18 NYCRR § 489.7(b)(11); 18 NYCRR § 490.4(c)(13)