Social Adult Day Care Programs

Adopted Rules: Closed to Comments

Effective Date: 
Saturday, February 8, 2020
Agency:

NYC DEPARTMENT FOR THE AGING 

NOTICE OF ADOPTION OF FINAL RULE

ON SOCIAL ADULT DAY CARE PROGRAMS

OPERATING IN NEW YORK CITY 

NOTICE IS HEREBY GIVEN THAT pursuant to the authority vested in the Department for the Aging (“DFTA”) by sections 1043 and 2402 of the New York City Charter and section 21-204 of the Administrative Code of the City of New York that DFTA is adopting the following rule regarding social adult day care programs operating in New York City.  Notice of Public Hearing and Opportunity to Comment on the proposed rule was published in the City Record on November 20, 2019.  A public hearing on the proposed rule was held on December 20, 2019. 

Statement of Basis and Purpose of Rule 

Local Law 9 of 2015, codified at section 21-204 of the Administrative Code, authorizes and requires the Department for the Aging (DFTA) to regulate social adult day care (SADC) programs. These programs are structured programs which provide functionally impaired adults with supervision, care, nutrition, and opportunities to socialize, along with related services. A functionally impaired individual is a person who requires the assistance of another person in at least one of the following activities of daily living (toileting, mobility, transferring, or eating) or who needs supervision due to a cognitive and/or psycho-social impairment. 

Due to concerns about potential violations of non-compliance in the SADC industry, Local Law 9 required the appointment of an ombudsperson within DFTA. The ombudsperson is responsible for receiving comments and complaints about SADCs and investigating those complaints. As appropriate, the ombudsperson will respond to those investigations by, among other things, alerting the managed long term care (MLTC) plans known to be reimbursing a particular SADC and by notifying other government regulators of the results of its investigation. 

DFTA is now promulgating rules in accordance with Section 21-204 of the Administrative Code. This rule adds a new Chapter 2 regarding SADCs to Title 69 of the Rules of the City of New York, separated into three new subchapters. 

Subchapter 1 sets out rules for the ombudsperson complaint process, which covers the processing of complaints received, reviewed and accepted as a SADC complaint by the ombudsperson. Upon acceptance of the complaint, the ombudsperson will refer the complaint to relevant government entities, as warranted, or conduct an investigation. After an investigation, the ombudsperson can make factual determinations, approve corrective action plans and impose civil penalties. 

Section 2-01 of these rules defines key terms for these rules. Notably, a definition of a dismissed complaint is included for situations where, in accordance with these rules, no further action by DFTA is required or appropriate. In order to limit complaints without merit, Section 2-02 provides that complaints may only be filed by a person associated with a SADC, either as a client, a relative of a client, or as an employee, contractor, or volunteer. The ombudsperson may at their discretion accept other complaints for investigation where warranted. 

Sections 2-03 and 2-04 describe the processing of received complaints. The ombudsperson will inform the SADC that is the subject of a complaint and check that the entity has registered with Department as required by law. The ombudsperson will determine whether a complaint is within the ombudsperson’s capacity to investigate, or if it is necessary to refer it to another governmental entity or entities, as appropriate. When all the elements of a complaint are referred to another agency, the complaint will be considered to be no longer before the ombudsperson, and be properly filed with the other agency. 

Complaints that are not entirely referred to another agency will be investigated by the ombudsperson in accordance with Section 2-05. The ombudsperson may seek information from the SADC or any associated Managed Long Term Care (MLTC) plans to ascertain the validity of the complaint and conduct its investigation. Where warranted, the ombudsperson may also visit the SADC location and other locations relevant to the complaint matter. Section 2-06 requires the ombudsperson to make a factual determination after investigating either to dismiss the complaint, or find evidence of a violation of Section 21-204 of the Administrative Code. 

Section 2-07 allows a SADC or MLTC to timely appeal a factual determination made by ombudsperson, to the Commissioner for the Aging. Section 2-08 describes the process for correcting a violation described in factual determination of the ombudsperson. The SADC will work with its associated MLTCs to develop and implement a corrective action plan to resolve the violation. If the SADC fails to develop or does not implement a corrective action plan, the Department may issue a notice of violation and a civil penalty for the violation, returnable to the Office of Administrative Trials and Hearings (OATH).                                                    

Subchapter 2 of this rule is concerned with registrations of SADCs. Section 21-204(c) of the Administrative Code requires SADCs to register certain information with the Department and regularly update that information. Subchapter 2 details the information required to be submitted with a registration and sets a fee of $900 for registering and $240 for updating information with the Department. 

Subchapter 3 provides a schedule of civil penalties for violations of Administrative Code Section 21-204 or these rules, as allowed by Local Law 9.  

A hearing was held on December 20, 2019. In response to the comments received, the Department made a change to allow the ombudsperson to waive the consent required from an MLTC to a proposed corrective action plan if the MLTC is not responsive. The Department is also clarifying that the ombudsperson may dismiss spurious complaints that may be filed by competitors or other disinterested parties that lack merit. No other changes are being made to this rule. 

The Department received seven written comments and 20 people testified at the hearing. Several comments suggested that the civil penalties for violation of the law are too high, or suggested the penalties be capped or otherwise limited. The Department believes the proposed penalties are appropriate. Administrative Code § 21-204(c) provides the penalties to be assessed for violations of the law and rules, and requires that penalties be assessed for each day that a SADC has not registered with DFTA as required by law. 

There were also several comments suggesting the registration fees were too costly. The Department disagrees. The fees set by this rule are based on a careful analysis of the cost of enrolling a SADC in the registration system and updating information. SADCs only need to register once, and must keep the information in the registry up to date, as required by Administrative Code § 21-204(b)(2). 

Lastly, several comments suggested that these rules may no longer be necessary or are not appropriate because many of the issues that plagued the industry when Local Law 9 was originally enacted are no longer prevalent. The Department does not agree, and believes these rules are necessary and required by the law.