N.Y. Comp. Codes R. & Regs. tit. 18 § 505.29

Current through Register Vol. 46, No. 51, December 18, 2024

Section 505.29 - Foster family care demonstration programs

(a) Definitions.

(1) Foster family care is assistance with personal hygiene, dressing, and feeding and the performance of tasks essential to the maintenance of a foster family care recipient's health and safety within a foster family care home which is ordered by a physician, provided in accordance with a plan of care, and supervised by a registered professional nurse.

(2) A foster family caregiver is a person who provides the following services in his or her home to one or two foster family care recipients pursuant to an admission agreement with a sponsoring agency and the standards set forth in this section: room and board; supervision of, or assistance with, activities of daily living; and personal care and other related services which are necessary to maintain the recipient in the community.

(3) A foster family care demonstration program is a demonstration program the purpose of which is to determine whether foster family care is an appropriate alternative to institutional placement for elderly or disabled persons who lack the homes, the resources, or the family support to live in the community.

(4) A respite caregiver is a person who provides foster family care for up to 21 days per year, as determined by the sponsoring agency, as a substitute for a foster family caregiver.

(5) A sponsoring agency is a general hospital, a residential health care facility (RHCF), a certified home health agency, a long-term home health care program, or a social services district which administers a foster family care demonstration program.

(b) Contracts and agreements.

(1) Contract. The sponsoring agency, other than a sponsoring agency which is a social services district, must have a written contract with the social services district. A sponsoring agency which is a social services district must have a written contract with the department. The contract must specify the parties' functions and responsibilities, include provisions governing the contract's renewal and termination prior to expiration, and include all reimbursement provisions and any other provisions the department may require. The contract's term must not exceed one year, and the contract may be renewed for additional one year terms with the department's approval. The contract must provide that either party may terminate the contract only upon 60 calendar days written notice to the other party. The social services district must submit the contract to the department for its review and must not implement the contract until the department has approved it. The department will approve or disapprove the contract in writing within 60 business days after it receives the contract.

(2) Admission agreement. The sponsoring agency, the foster family care recipient, and the foster family caregiver must execute a written admission agreement at or prior to the recipient's admission to the foster family care demonstration program. The agreement must be printed in legible and easily read type and include the following provisions:

(i) the date the recipient is admitted to the foster family care demonstration program, which will also be the agreement's effective date;

(ii) a description of any payments the sponsoring agency or recipient must make to the foster family caregiver;

(iii) a description of the personal fund accounting services the foster family caregiver will provide for the recipient;

(iv) a statement that the recipient may terminate the admission agreement at any time;

(v) a description of the conditions under which the foster family caregiver or sponsoring agency may terminate the admission agreement;

(vi) a statement that the foster family caregiver or sponsoring agency may terminate the agreement only upon 60 calendar days' written notice to each of the other parties to the agreement, except in an emergency as determined by the social services district; and

(vii) a statement that the sponsoring agency must notify the social services district when the admission agreement is terminated and assist the district to make alternative arrangements for a recipient who continues to be eligible for medical assistance (MA).

(c) Sponsoring agency responsibilities. The sponsoring agency is responsible for the following general activities:

(1) recruiting persons who meet eligibility requirements for the receipt of foster family care services, as specified in subdivision (d) of this section;

(2) participating in the authorization process for foster family care services by obtaining a physician's order and completing a nursing assessment and a social assessment and recommending to the social services district whether a person is appropriate for the foster family care demonstration program, as specified in subdivision (e) of this section;

(3) providing, or arranging for the provision of, nursing supervision, as specified in subdivision (f) of this section;

(4) performing case management services, including assisting the social services district to make alternative arrangements for a foster family care recipient whose admission agreement is terminated, as specified in subdivision (g) of this section;

(5) recruiting foster family caregivers and respite caregivers who meet the qualifications specified in subdivision (h) of this section;

(6) reviewing applications from prospective foster family caregivers and respite caregivers, as specified in subdivision (i) of this section;

(7) training foster family caregivers and respite caregivers, or arranging for them to be trained, in accordance with subdivision (j) of this section;

(8) terminating a foster family caregiver's or a respite caregiver's authority to provide foster family care services when he or she fails to comply with the requirements of this section;

(9) compiling statistical data regarding recipients, foster family caregivers, and respite caregivers and forwarding such data to the department at such times as the department may require and on a form the department approves; and

(10) for a sponsoring agency that is not a social services district, maintaining sufficient insurance coverage to protect the social services district from liability claims resulting from personal injury to recipients, foster family caregivers, respite caregivers, or other occupants of the foster family care home which result from acts, omissions, or negligence of sponsoring agency personnel.

(d) Eligibility for foster family care services.

(1) Subject to paragraph (2) of this subdivision, a person must meet the following requirements to be eligible to participate in a foster family care demonstration program:

(i) be eligible for MA;

(ii) be at least 65 years old or disabled and at least 18 years old;

(iii) be medically eligible for RHCF services or personal care services; and

(iv) have been determined by the sponsoring agency to be capable of being cared for in the community if a suitable home environment and medical support services are provided and to lack a home, the resources, or the family support to live in the community.

(2) A person is not eligible to participate in a foster family care demonstration program if he or she meets any of the following characteristics:

(i) has a chronically unstable medical condition, which is a condition that exhibits, or may exhibit, sudden deterioration or improvement and requires frequent medical or nursing judgment to determine changes in the person's plan of care;

(ii) has a serious and persistent mental disability which manifests as gross confusion or nocturnal wandering;

(iii) requires medical or mental health services which cannot be provided safely and effectively by the foster family caregiver;

(iv) repeatedly behaves in a manner which causes or may reasonably be expected to cause a danger to the recipient or to other occupants of the foster family care home or which interferes with the foster family caregiver's operation of the home;

(v) refuses or is unable to comply with a prescribed treatment program, including a prescribed medication regimen under which the person self-administers medications;

(vi) is chronically bedfast;

(vii) has chronic and unmanaged urinary or bowel incontinence, is unwilling to participate in a bladder/bowel management program, and cannot otherwise maintain his or her personal hygiene;

(viii) has a communicable disease or health condition which is dangerous to other occupants of the foster family care home; or

(ix) depends on medical equipment unless:

(a) the equipment is not a safety hazard; and

(b) use of the equipment does not restrict the recipient to his or her bedroom, inhibit the recipient from participating in the activities of the foster family care home, or impede the recipient's mobility or the mobility of other occupants of the foster family care home.

(e) Authorizations for foster family care services. This subdivision sets forth the sponsoring agency's and the social services district's responsibilities for authorizing foster family care services.

(1) The sponsoring agency must obtain a physician's order for services. The physician's order must be based upon the person's medical condition as determined by a medical examination that is conducted within 30 calendar days before the sponsoring agency receives the request for foster family care services. The physician's order must include the person's medical history and current medical condition and the person' prescribed medication regimen.

(2) Within five business days after receiving the request for foster family care services, the sponsoring agency must complete a nursing assessment of the person.

(i) The nursing assessment must include the following:

(a) a review and interpretation of the physician's order;

(b) an evaluation of the person's medical and service needs and a plan of care based on those needs;

(c) information on the person's ability to self-administer medications;

(d) recommendations on methods of assisting the person in activities of daily living; and

(e) a determination whether the person is medically eligible for RHCF services or personal care services but is capable of being cared for in the community if a suitable home environment and medical support services are provided.

(ii) The nursing assessment must be completed by a registered professional nurse who meets the requirements set forth in section 505.14 of this Part for registered professional nurses who perform nursing assessments for personal care services recipients.

(3) The sponsoring agency must timely complete a social assessment of the person. The social assessment must include an evaluation of the potential contribution of informal caregivers, such as family and friends, to the person's care and must otherwise meet the requirements set forth in section 505.14 of this Part for social assessments of personal care services recipients.

(4)

(i) If the sponsoring agency is not a social services district, the sponsoring agency must recommend to the social services district whether placement in the foster family care demonstration program is appropriate for the person. The sponsoring agency's recommendation must be based on the physician's order, the nursing assessment, and the social assessment.

(ii) When a sponsoring agency which is not a social services district recommends that placement in the foster family care demonstration program is not appropriate for the person, the sponsoring agency must forward the following documents to the social services district: the sponsoring agency's recommendation that placement in the foster family care demonstration program is appropriate for the person, the physician's order, the nursing assessment, and the social assessment.

(iii) When a sponsoring agency which is not a social services district recommends that placement in the foster family care demonstration program is not appropriate for the person, the sponsoring agency must forward the following documents to the social services district: the sponsoring agency's recommendation that placement in the foster family care demonstration program is not appropriate for the person, the physicians's order, the nursing assessment, and the social assessment.

(5) The social services district is responsible for determining whether placement in the foster family care demonstration program is appropriate for the person. The social services district's determination must be based upon the following documents: the physician's order; the nursing assessment; the social assessment; the district's evaluation of the cost-effectiveness of foster family care services compared to institutional long-term care; and, if the social services district is not a sponsoring agency, the sponsoring agency's recommendations required pursuant to paragraph (4) of this subdivision.

(6) When the social services district determines that placement in the foster family care demonstration program is appropriate for the person, it must complete an authorization for foster family care services. The authorization must be completed prior to the delivery of foster family care services and must not exceed a period of one year.

(7) An independent medical review of the case must be completed by the local professional director appointed pursuant to section 365-b of the Social Services Law, a physician designated by the local professional director, or a physician under contract to the social services district if there is disagreement between the physician's order, the social assessment, or the nursing assessment or if there is a question regarding the amount or type of foster family care services required. The independent medical review will result in a final determination whether foster family care services are appropriate for the person.

(8) Foster family care services can be reauthorized for one year periods. Each reauthorization must follow the procedures outlined in paragraphs (1) through (7) of this subdivision.

(9)

(i) A social services district must notify the person in writing, on forms required by the department, of the decision to authorize, deny, reauthorize, reduce, or discontinue foster family care services. The notice must meet the notice requirements set forth in Part 358 of this Title.

(ii)

(a) Except as provided in clause (b) of this subparagraph, a foster family care services applicant or recipient is entitled to a fair hearing in accordance with the requirements of Part 358 of this Title.

(b) Neither a foster family care services applicant or recipient, a foster family caregiver, a respite caregiver, nor any other person or entity is entitled to a fair hearing when a sponsoring agency terminates a foster family caregiver's or a respite caregiver's authority to provide foster family care services or when a social services district or the department terminates its contract with a sponsoring agency.

(iii) A foster family care services recipient for whom the social services district proposes to reduce or discontinue foster family care services is entitled to aid continuing in accordance with the requirements of Part 358 of this Title.

(f) Nursing supervision.

(1) The sponsoring agency must provide, or arrange for the provision of, nursing supervision.

(2) Nursing supervision must be provided by a registered professional nurse who meets the requirements set forth in section 505.14(f)(3) or this Part for registered professional nurses who perform nursing supervision for personal care services recipients.

(3) Nursing supervision includes the following activities:

(i) evaluating the recipient's health status, medical needs, the adequacy of the foster family care services provided, and the foster family caregiver's or respite caregiver's ability to provide foster family care services;

(ii) making an initial nursing supervisory visit to the foster family care home within 72 hours after the recipient's placement in the home to ensure that the foster family caregiver understands the recipient's medical needs and has been trained to address those needs;

(iii) determining the frequency of subsequent nursing supervisory visits, which must occur at least every 90 calendar days, by considering the recipient's medical needs and the foster family caregiver's ability to provide foster family care services;

(iv) maintaining records of nursing supervisory visits and providing a copy of the records to the case manager; and

(v) reporting to the sponsoring agency any change in the recipient's condition or any action which might jeopardize the recipient's health or safety.

(g) Case management.

(1) The sponsoring agency is responsible for case management from the day the sponsoring agency first has contact with the recipient to the day the recipient leaves the foster family care demonstration program.

(2) Case management activities include the following:

(i) arranging for the delivery of all needed services;

(ii) monitoring the foster family care services a recipient receives and assessing whether his or her continued participation in the foster family care demonstration program is appropriate;

(iii) assessing the foster family caregiver's or the respite caregiver's compliance with the provisions of this section during each visit to the foster family care home;

(iv) providing opportunities for the recipient to participate in activities within or outside of the foster family care home and assisting in arranging the recipient's transportation to activities outside of the foster family care home;

(v) assisting the recipient to:

(a) attend to personal financial matters;

(b) establish and maintain ties with family, friends, and occupants of the foster family care home; and

(c) participate in the daily routine of the foster family care home, including orienting the recipient to the foster family care home; and

(vi) assisting the social services district to make alternative arrangements for a recipient who continues to be eligible for MA when the recipient, the foster family caregiver, or the sponsoring agency terminates the admission agreement or when the sponsoring agency's contract with the social services district or the department is terminated.

(3) The case manager must maintain current records of its compliance with this subdivision's requirements and notify the social services district whenever there is a change in the recipient's condition or circumstances.

(4) The case manager must visit the recipient at least once every 90 calendar days.

(h) Foster family caregiver and respite caregiver qualifications. A foster family caregiver and respite caregiver must meet the following qualifications:

(1) be at least 21 years old;

(2) demonstrate sufficient income, not derived solely from the foster family care demonstration program, to meet the household expenses of the foster family caregiver and any other occupants of the home, except that a respite caregiver need not meet this requirement;

(3) not be otherwise employed in or out the home while providing foster family care services unless the social services district has approved the employment in writing;

(4) be able to speak, read, and write English and speak the recipient's predominant language; record messages; keep simple records concerning the recipient and the services provided; and understand and implement directions provided by the sponsoring agency, the nurse supervisor, or the social services district;

(5) demonstrate maturity, emotional and mental stability, and experience in caregiving and homemaking;

(6) demonstrate a sympathetic attitude toward recipients;

(7) be in good physical health, as evidenced by the documentation which the Department of Health requires for employees of certified home health agencies pursuant to 10 NYCRR 763.4; and

(8) live in the foster family care home.

(i) Applying to become a foster family caregiver or a respite caregiver.

(1) A person who seeks to become a foster family caregiver or a respite caregiver must submit an application to the sponsoring agency. An application must include the following information:

(i) the names and addresses of each of the applicant's employers during the previous five years;

(ii) the names and addresses of two persons, unrelated to the applicant, who are acquainted with the applicant's desire and ability to provide foster family care services;

(iii) a statement listing the applicant's education, caregiving and homemaking experience, and community activities; and

(iv) a statement of the applicant's current income and the sources of that income, except that this requirement does not apply to respite caregiver applicants.

(2) The sponsoring agency must assist the applicant to complete the application and obtain the information listed in paragraph (1) of this subdivision.

(3) A sponsoring agency which is not a social services district must send the following information to the social services district within 10 business days after the day the sponsoring agency receives a person's application to become a foster family caregiver or a respite caregiver: a copy of the application; comments regarding the applicant's character, competence, and, except for a respite caregiver applicant, the applicant's financial ability to provide foster family care; and recommendations whether the social services district should approve the application. Within 20 business days after the day the social services district receives this information, it must approve or deny the application and send the applicant and the sponsoring agency a written notification of its determination. The social services district's approval or denial must be based on such information and, except for a respite caregiver applicant, on a survey of the applicant's home conducted by a district representative and a sponsoring agency representative.

(4) A sponsoring agency which is a social services district must send the applicant a written notification of its approval or denial of the application within 30 business days after receiving the application. The district's approval or denial must be based on its assessment of the applicant's character and competence and, except for a respite caregiver applicant, on the district's assessment of the applicant's financial ability to provide foster family care. The social services district's approval or denial of a foster family caregiver's application must also be based on a survey of the applicant's home conducted by a district representative.

(5) If a social services district denies a person's application to become a foster family caregiver or a respite caregiver, neither the person nor the sponsoring agency is entitled to a fair hearing to review the denial.

(j) Training.

(1) Each foster family caregiver and respite caregiver must successfully complete a training program approved by the department. An approved training program must meet the basic training, periodic and continuous in-service training, and on-the-job instruction and supervision requirements specified in section 505.14(e) of this Part for persons who provide personal care services.

(2) Before providing foster family care services, a foster family caregiver or respite caregiver must successfully complete the prescribed part of the basic training program, as specified in section 505.14(e)(3) of this Part. Within three months after the foster family caregiver or respite caregiver begins providing services, he or she must complete the entire basic training program. The department may waive the requirement that the foster family caregiver or respite caregiver complete a basic training program under the circumstances specified in section 505.14(e)(4) of this Part.

(k) Foster family caregiver and respite caregiver responsibilities for recipients.

(1) Supervision. A foster family caregiver or respite caregiver must supervise recipients. Supervision includes the following:

(i) knowing each recipient's general physical location;

(ii) monitoring the recipient to identify abrupt or gradual changes in the recipient's behavior or appearance which indicate his or her needs should be reassessed or that he or she needs additional medical or social services, and promptly reporting such changes to the sponsoring agency;

(iii) monitoring the foster family care home and grounds to protect recipients from harm; and

(iv) handling emergencies occurring in the home.

(2) Food services.

(i) The foster family caregiver or respite caregiver must provide recipients with the following daily meals and snacks:

(a) three nutritionally balanced meals a day which meet recipients' dietary needs, include a hot entree at lunch or dinner, and vary in menu and preparation; and

(b) at least two nutritious snacks between meals.

(ii) The foster family caregiver or respite caregiver must consider each recipient's prescribed dietary regimen, food allergies, and food preferences when planning, preparing, and serving meals and snacks. If a recipient requires a modified diet, the foster family caregiver or respite caregiver must provide the recipient with meals and snacks which conform to his or her dietary requirements.

(iii) The foster family caregiver or respite caregiver must maintain food reserves sufficient for three days of meals and snacks.

(iv) The foster family caregiver or respite caregiver must store, prepare, and serve food to assure its safety and nutritional value.

(v) The foster family caregiver must maintain a sufficient supply of dishes, glasses, and utensils to meet recipients' needs.

(vi) The foster family caregiver or respite caregiver must not require recipients to dine separately from other occupants of the foster family care home.

(3) Personal care services. The foster family caregiver or respite caregiver must perform personal care services as outlined in the recipient's plan of care.

(4) Respite care. The foster family caregiver must notify the sponsoring agency when he or she requires a respite caregiver.

(l) Foster family caregiver responsibilities for the foster family care home.

(1) Home maintenance and renovations.

(i) A foster family caregiver must operate and maintain the foster family care home in good repair, in a sanitary condition, and in compliance with this section and with the State Uniform Fire Prevention and Building Code or other local fire and building code.

(ii) A foster family caregiver may renovate or remodel his or her home only with the sponsoring agency's and the social services district's approval. Renovation or remodeling plans must comply with this section and with the State Uniform Fire Prevention and Building Code or other local fire and building code.

(2) Recipients' bedrooms.

(i) A recipient's bedroom may be located only on the first or second floor of a foster family care home that is of frame or ordinary construction, as defined by Part 704 of the State Uniform Fire Prevention and Building Code, and whose structural elements are unprotected by fire-resistant materials. A recipient's bedroom may be located only on the first through the sixth floors of a foster family care home that is of frame or ordinary construction, as defined by Part 704 of the State Uniform Fire Prevention and Building Code, and whose structural elements are protected by fire-resistant materials.

(ii) A recipient's bedroom must have adequate light and ventilation and have sufficient floor space to contain the following required furnishings: a chair; a nightstand; a lamp; a dresser; adequate closet space; and a standard size single bed which is neither a rollaway bed, a metal cot, a folding bed, nor a bed higher than 36 inches from the floor.

(iii) A recipient's access to his or her bedroom must not be through another bedroom or bathroom. A recipient's access to a bathroom must not be through another bedroom.

(iv) A recipient must not be required to share a bedroom with another recipient unless both consent.

(v) A recipient's bedroom must be equipped with a hinged door. If chainlocks, hasps, bars, padlocks, or similar devices are used in the foster family care home, they must not inhibit a recipient's access to an exit or his or her movement in the foster family care home.

(vi) Windows in a recipient's bedroom must be furnished with curtains, shades, or blinds.

(vii) The foster family caregiver must supply each recipient with the following clean bed linens and supplies: a set of bed sheets, a pillow of average bed size, a pillowcase, a blanket, a bedspread, and adequate towels and washcloths. The foster family caregiver must change each recipient's bed sheets, pillowcase, towels, and washcloths every week and more often if necessary.

(viii) Electric blankets must not be used on recipients' beds.

(3) Other furnishings and equipment.

(i) A foster family care home's furnishings and equipment must be clean, constructed to withstand daily use, and in good repair.

(ii) Each foster family care home must have a working telephone.

(4) Heating and cooling.

(i) The foster family care home must have a permanently installed central heating system capable of maintaining required temperatures.

(ii) When the temperature outside the foster family care home is 65 degrees Fahrenheit or colder, the temperature in recipients' bedrooms and common areas must be at least 68 degrees Fahrenheit. When the temperature outside the foster family care home is 85 degrees Fahrenheit or hotter, the foster family caregiver must take steps to maintain a comfortable environment in recipients' bedrooms and common areas.

(5) Smoke and fire protection.

(i) Smoke detectors which meet Underwriters Laboratories standards must be installed in the following locations:

(a) In a multi-level foster family care home, at the top of all stairways and in recipients' bedrooms that are located more than 20 feet from the top of stairways;

(b) In a single level foster family care home, in all corridors leading to recipients' bedrooms; and

(c) In a multi-level or single level foster family care home, in any other locations recommended by the local fire department.

(ii) An ABC-rated fire extinguisher which meets National Fire Protection Association standards must be properly installed in the kitchen.

(iii) Portable electric space heaters must not be used in a foster family care home.

(iv) Building exits and corridors must be free of obstructions at all times.

(v) Fire escapes, if required by a local fire and building code, must be installed and maintained according to such code.

(6) Disaster and emergency plan. The foster family caregiver must develop a disaster and emergency plan in consultation with the sponsoring agency and the social services district. The plan must include procedures for evacuating the home and temporarily providing essential services to recipients.

(i) The sponsoring agency must train all recipients, foster family caregivers, respite caregivers, and other occupants of the foster family care home to evacuate the home during a fire or other emergency.

(ii) The foster family caregiver must conduct semi-annual evacuation drills for all recipients, foster family caregivers, and other occupants of the foster family care home and record the date and time of each drill and the length of time that the evacuation required.

(m) Payment for foster family care.

(1) Provided other funds are not available, the cost of foster family care services provided under this section will be paid out of funds appropriated to the MA program if Federal financial participation is available.

(2) The department will make payments to a sponsoring agency, at a rate the department and the Division of the Budget approve, for expenditures for foster family care services provided to foster family care recipients in accordance with the provisions of this section.

(3) No payments will be made to a sponsoring agency for foster family care services expenditures unless the sponsoring agency supports its claim for payment with documentation, as required by the department, of the foster family care services provided to each recipient.

(n) Recordkeeping and confidentiality requirements. The sponsoring agency, the foster family caregiver, and any respite caregivers must perform the following recordkeeping activities:

(1) collect, maintain, and submit such information, records, or reports as required by the department and the social services district and make such records available for review at the department's or the district's request; and

(2) maintain the confidentiality of recipients' records in accordance with section 369 of the Social Services Law and Part 357 and Subpart 360-8 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 505.29