NYSDOH Issues Emergency Regulation Impacting Admission/Retention Standards

Carla Erhartic

NYSCAL has learned that a lawsuit has been filed against several Adult Care Facilities and Assisted Living Programs as well as the New York State Department of Health claiming violations of the American with Disabilities Act (ADA) and other laws pertaining to admission and/or retention of residents that use wheelchairs.

Last Friday the Department of Health promulgated an emergency regulation changing the admission/retention standards for adult homes (Part 487.4); enriched housing programs (Part 488.4) and assisted living programs (Part 494.4). In summary, the change in regulation is as follows:  

  • For adult homes and enriched housing programs (and by extension assisted living residences [ALRs] that do not have enhanced ALR [EALR] certification):
  • Adds a provision 487.4/488.4 (a-1): "An operator shall not exclude an individual on the sole basis that such individual is a person who primarily uses a wheelchair for mobility, and shall make reasonable accommodations to the extent necessary to admit such individuals, consistent with the American with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. and with the provision of this section."
  • Deletes the admission/retention standard that reads: "is chronically chairfast and unable to transfer, or chronically requires the physical assistance of another person to transfer." 
  • For ALPs:
  • Adds a provision 494.4 (a-1): "An operator shall not exclude an individual on the sole basis that such individual is a person who primarily uses a wheelchair for mobility, and shall make reasonable accommodations to the extent necessary to admit such individuals, consistent with the American with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. and with the provision of this section.”
  • Deletes the admission/retention standard that reads: "is chronically chairfast and requires lifting equipment to transfer or the assistance of two persons to transfer." 

The Department is accepting public comment on this regulation and NYSCAL will be responding. Since it has been issued as an "emergency" regulation, it is immediately in effect. We will provide more information to you as it becomes available. Please contact Amy Kennedy at 518-462-4800, Ext. 17 or via email at akennedy@nyscal.org if you have questions related to this issue.