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October 27, 2014

Reminder: Social Adult Day Services Providers Contracting with MLTCs Must Comply with NYSOFA Regulations

Social Adult Day Services programs ("SADS")1 provide a variety of structured and comprehensive long term care services to functionally impaired individuals in a community setting. SADS offer socialization, supervision, monitoring, personal care and nutrition services in a protective setting for less than a 24 hour period. SADS programs are regulated by the New York State Office for the Aging ("NYSOFA") under 9 NYCRR 6654.20 only if they receive NYSOFA funding. However, the New York State Department of Health ("Department") requires all SADS providers contracting with Managed Long Term Care ("MLTC") plans to meet the standards and requirements of 9 NYCRR 6654.20.2

SADS and MLTC Contracts

Medicaid participants that meet eligibility criteria may access SADS through MLTC plans. On May 8, 2013, the Department issued MLTC Policy 13.11 to clarify directives regarding SADS and MLTC plans. The Department confirmed that MLTC plans may only contract with SADS programs that demonstrate compliance with NYSOFA minimum requirements for operation:

All MLTC plans are required to have a formal process for credentialing providers on a periodic basis (initially and not less than once every three years) and for monitoring provider performance. Plans should enter into contracts only with providers which have demonstrated capacity to perform the needed contracted services. Although there is not a specific license or certification, in order to be assured of enrollee health and safety, all providers of Social Day Care services must meet the standards and requirements of 9 NYCRR 6654.20. MLTC Policy 13.11.

The Department continues to work with the Office of the Medicaid Inspector General ("OMIG"), which is conducting audit activities related to provider enrollments. OMIG's 2014-2015 Workplan announced continued investigation of SADS programs suspected of overcrowding, inappropriate solicitation of Medicaid patients, and enrollment of unqualified participants in the MLTC program. OMIG will also conduct credential verification and record reviews of the documentation provided in response to subpoenas.

NYSOFA Social Adult Day Care Regulations Overview: 9 NYCRR 6654.20

Policies and Procedures: The NYSOFA regulations set forth specific policies and procedures that SADS are required to establish, follow and have filed on site for review. These policies must address participant eligibility, admission and discharge protocols, individualized service plan development based on initial client assessments, staffing plans and training, service delivery, annual program self-evaluations, confidential record keeping, emergency preparedness and participant rights.

Staffing: Under the regulations, SADS programs must maintain an adequate number of qualified staff, which may include volunteers, to perform required regulatory functions and to ensure the health, safety and welfare of participants. Staff sign-in documentation should demonstrate that at least two (2) staff members, one of whom must be a paid employee, are with participants throughout the day. All volunteers who may have contact with participants must undergo staff training and comply with health status requirements.

Training: The NYSOFA regulations require SADS providers to complete and maintain adequate records of mandated staff and volunteer trainings. These records must include information regarding the training subject matter, qualifications of the trainers, staff attendance and documentation of staff competency. All staff and volunteers must undergo orientation training and complete in-service trainings annually to develop, review, or expand skills or knowledge.

Participant Rights: The regulations also set forth specific patient rights that SADS providers must protect and promote. These include a participant's right to be treated with dignity and respect, and to be free from abuse and physical or chemical restraint, coercion, discrimination or reprisal by the program. Participants must be free to accept or refuse the services and activities offered and all personal information must be kept confidential. These participant rights must be adequately posted throughout the facility and provided to each participant at admission.

If you have questions or require further assistance regarding the information contained in this Legal Alert and the impact on your organization or you are interested in opening a social model day care, please contact Melissa Zambri at (518) 429-4229 or Ms. Zambri would like to thank Law Clerk Jamie Dughi Hogenkamp for her assistance with this Legal Alert.

1 Also known as Social Adult Day Care Centers ("SADCC").
2 Note, however, that the New York State Legislature in its most recent session considered expanding NYSOFA oversight. Although never passed in the NYS Senate, legislation was introduced and passed in the Assembly during the 2013-2014 Session requiring all SADS programs to comply with NYSOFA regulations to ensure that all programs are subject to oversight. S5397A-2013. Also note that the New York City Council has proposed legislation to regulate these programs as well in recent years.

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