DOH Files Emergency Regulations for ACFs and ALPs

Carla Erhartic

The Department of Health (DOH) filed emergency regulations on May 25, 2018 regarding the admission and retention standards for all adult care facilities (ACFs). The regulatory amendments come as a result of a lawsuit filed by the Fair Housing Justice Center alleging that DOH and four New York City ACFs discriminate against current and prospective residents who use wheelchairs, thereby violating the Americans with Disabilities Act (ADA), the Fair Housing Act, the Patient Protection and Affordable Care Act, and the Rehabilitation Act. The emergency regulatory changes address the issue of the lawsuit without significantly changing the retention standard and are effective immediately. Click here to view the emergency regulations.

Summary of the Regulatory Changes

Essentially, the regulations for adult homes, enriched housing programs, assisted living programs (ALPs), residences for adults, and family type homes for adults contain the following amendments:

  • Language prohibiting the admission of someone who “is chronically chair-fast and unable to transfer, or chronically requires the physical assistance of another person to transfer” is deleted. The other admission and retention standards remain intact, however.
  • The following language is added: “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 Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. and with the provisions of this section.”

According to the Regulatory Impact Statement, this regulatory change is designed to prevent a provider’s exclusion of an applicant on the sole basis that such individual is a person who primarily uses a wheelchair for mobility, thereby aligning with the provisions of the ADA. Please let Amy Kennedy know if you have any questions or comments.  Email her at akennedy@nyscal.org