M E M O R A N D U M - LeadingAge New York

M E M O R A N D U M 

TO: 

FROM: 

Adult Care Facilities and Assisted Living Members 

Diane Darbyshire, Policy Analyst 

DATE: June 15, 2007 

SUBJECT: 

ROUTE TO: 

Retention Standards Waivers Option Reinstated With Modifications 

Administrators, Program Directors 

DOC. ID # 32406702 

ABSTRACT: DOH makes retention standards waiver an option again, with conditions. 

Introduction 

The Center was pleased to hear Department of Health (DOH) officials announce at the 

NYAHSA Spring Institute that the retention standards waiver process, with some modifications, 

will again be available to adult care facility (ACF) operators and residents. This memo provides 

a copy of the “Dear Administrator” letter (DAL) outlining the requirements and providing the 

paperwork for this process. 

The Assisted Living Residence and Retention Standards Waivers 

The retention standards waiver option ceased to exist almost two years ago, after DOH issued the 

assisted living residence (ALR) application and DAL. The Assisted Living Reform Act 

designates the enhanced ALR (EALR) as the “aging in place” model for ACFs, thereby replacing 

the retention standards waiver option. Unfortunately, DOH has not yet approved any ALR 

applications, thereby leaving individuals who could have been cared for under the waivers in 

limbo. NYAHSA and The Center have consistently advocated for the reinstatement of this 

option when EALR licenses are issued, and outlined our stance again in our comments on the 

proposed ALR regulations. We are pleased that DOH has finally made retention standards 

waivers an option again, with certain parameters. 

Conditions for New Process 

According to DOH, a retention standards waiver will allow you to retain residents that exceed 

ACF retention standards, provide additional assistance with activities of daily living, and provide 

skilled nursing observation and assessment and services to residents in your facility

consistent with the Nurse Practice Act. You must make arrangements with an outside agency to 

provide these services to residents until you are approved and certified as an EALR. 

ACFs must apply, using the attached application provided at the end of this memo. The attached 

DAL describes certain criteria that ACFs must meet to be eligible to apply: 

• you must have applied for the EALR certification; and, 

• you must have residents in the facility who currently or may in the future exceed the 

retention standards for an adult home; and, 

• you must be able to demonstrate that the needs of the resident(s) can be safely and 

appropriately met at the residence. 

If you have applied for Special Need Assisted Living Residence (SNALR) certification and have 

residents who require services for aging in place, your facility must have an EALR application 

with the department in order for those residents to remain in the facility. Retention standards 

waivers for the requested EALR/SNARL beds must be approved by the department as well. 

The department reiterates that ACFs are not permitted to retain residents who require EALR 

services without obtaining an approved retention standard waiver, and individuals who exceed 

the ACF retention standards cannot be admitted to an ACF. 

Questions about the waiver process should be directed to Stephanie Guelpa or Linda O’Connell 

at DOH, (518) 408-1133. 

Conclusion 

We are pleased that DOH has decided to make the waiver option available once again in the 

interim until the ALR is implemented. Attached you will find the DAL and waiver application. 

If you have any questions regarding the contents of this memo, contact me at 

ddarbyshire@nyahsa.org or 518-449-2707, ext. 162. 

N:\NYAHSA\Policy\ddarbyshire\ACF DALs\Memo DAL Retention Standards Wavier Option.doc 

Attachment

STATE OF NEW YORK 

DEPARTMENT OF HEALTH 

161 Delaware Avenue Delmar, NY 12054-1393 

Richard F. Daines, M.D. 

Commissioner 

June 6, 2007 

DAL: HCBC 07-07 

Subject: Retention Standard Waiver 

Dear Administrator: 

As many of you know, the Department has completed most of the activities required to 

implement the Assisted Living Reform Act. This new program allows Assisting Living 

Residences (ALR) that are also certified as Enhanced Assisted Living Residences (EALR) to 

assist residents to age in place. However, since the ALR regulations are not yet finalized and 

some proposed EALR facilities have residents that are close to or currently exceeding the 

retention standards for adult homes, the Department has developed a Retention Standard Waiver 

for facilities that have filed an EALR application. 

In order to receive approval for a Retention Standard Waiver, you must have applied for 

the EALR certification and have residents in the facility who currently or may in the future 

exceed the retention standards for an adult home. You must be able to demonstrate that the 

needs of the resident(s) can be safely and appropriately met at the residence. If you have applied 

for Special Need Assisted Living Residence (SNALR) certification and have residents that 

require services for aging in place, your facility must have an EALR application with the 

Department in order for those residents to remain in the facility. Retention Standard Waivers for 

the requested EALR/SNARL beds must be approved by the Department as well. 

A Retention Standard Waiver will allow you to retain residents that exceed adult care 

facility (ACF) retention standards, provide additional assistance with activities of daily living, 

provide skilled nursing observation and assessment and services to residents in your facility 

consistent with the Nurse Practice Act. You must make arrangements with an outside agency to 

provide these services to these residents until you are approved and certified as an EALR. You 

are not permitted to retain residents who require EALR services without obtaining an approved 

Retention Standard Waiver. You may not admit residents to your facility that already exceeds 

ACF retention standards. Additionally, the Department has also determined that Retention 

Standard Waivers will not be appropriate in non-EALR facilities.

The enclosed waiver request must be completed and sent to: 

Bureau of Adult Care Facility Quality and Surveillance 

New York State Department of Health 

161 Delaware Avenue 

Delmar, New York 12054 

Attn: Linda O’Connell 

If you have any questions regarding the above or the waiver process, please call 

Stephanie Guelpa or Linda O’Connell at (518) 408-1133. 

Sincerely, 

Judith R. Mooney 

Acting Assistant Director 

Division of Home and Community Based Care


RETENTION STANDARD WAIVER REQUEST 

Office of Long Term Care 

Facility Name: 

Application # 

EALR 

Address: 

I. Resident Characteristics 

A. Indicate the current number of residents exceeding retention 

standards 

Which Special Needs Residents Would You Retain?: 

Those Who Require: 

# Residents 

__________ 

# Residents 

Assistance of 1 Person to Transfer? 

487.4(b)(9); 488.4(b)(9) 

Assistance of 1 Person To Walk? 

487.4(b)(10); 488(b)(10) 

Assistance of 1 Person to use Stairs? 

487.4(b)(11); 488.4(b)(11) 

Assistance with Chronic Incontinence? 

487.4(b)(12); 488.4(b)(12) 

Assistance with Medical Equipment from Other Than 

Approved Community Resources? 

487.4(b)(14)(iv); 488.4(b)(14)(v) 

________ Assistance with Eye drops? 

________ Assistance with Injections? 

________ Catheter Care? 

________ Colostomy Care? 

________ PRN medication Administration? 

________ Skilled observations needing to be reported to physician 

__________ 

__________ 

__________ 

__________ 

__________


________ Dressing changes? 

________ Any other nursing service consistent with the Nurse 

Practice Act: List: ________________________ 

________________________________________ 

Total Number of Residents to be Retained 

(Count those with multiple special needs only once) 


__________ 

__________ 

__________ 

B. Yes No 

Will These Residents Be Medically Stable? _____ _____ 

Will These Residents be Self-Directing? _____ _____ 

If Not, will they accept Direction? _____ _____ 

If Not, do they have surrogates to assist in 

managing care and affairs? 

_____ _____ 

C. How will you ensure that these residents will continue to be involved in the life and 

activities of the facility? 

D. What additional services will you arrange for with an outside agency? 

E. How will the additional services support the health and safety of the individual? 

F. How will approval of Retention Standards Waiver effect other residents?



II. 

The Services Plan 

A. Indicate how you will ensure the health and safety of the retained residents in terms of the 

residents’ mobility, cognitive capabilities and location in the facility. 

B. Describe in detail the retention limits/functional and behavioral thresholds. Please 

consult ACF Directive 6-91, Attachment E, prior to preparing this response. Attach 

additional pages as necessary. 

C. How will you arrange for service provision? 

_______ 

_______ 

________ 

As a provider of Title XIX (MA) Personal Care, 

attach Letter of Intent with LDSS 

Using Qualified Existing Community Based Home Care Providers, 

attach Letter of Intent with Agencies in compliance with ACF 

Directive 1-92. 

Using Qualified LHCSA 

attach copy of contract and certification 

A consultant (RN or MD) is also required if the facility is not an approved Home Care 

provider [487.3(g)(2); 487.9(k); 488.3(F)(3)]. Attach documentation of arrangements 

with a consultant, if required. 

D. Attach your current personnel schedule and indicate how you will augment staffing to 

accommodate the special needs of the retained residents. Even if you plan to contract 

with a Home Care Provider, you must indicate the number of staff, state whether they are 

facility or Home Care Staff, and identify the shifts they will be working.



E. How will you provide or arrange for the additional staff training needed to care for the 

retained residents? If you are not arranging for 100% coverage by a Home Care Provider 

for 24 hours/7 days, facility staff will also be providing care and must be trained. 

F. Attach your current Disaster and Emergency Plan and clearly indicate the modifications 

to accommodate a more dependent population. Indicate when you submitted your plan to 

the Regional Office and when was it approved? 

G. Attach an Evacuation Plan, which specifically describes how you will meet the 

emergency needs of those residents with mobility impairments.



H. Describe the Plan and Arrangements for increased frequency of Medical Reviews. 

I. Describe the Plan and Arrangements for increased frequency of case management 

reviews. 

J. Attach a Sample of a written Individual Service Plan (ISP), including the frequency of reevaluation. 

You must re-evaluate the resident’s needs at the time of entry, 45 days after 

entry, every 6 months thereafter, and more frequently if necessary. 

K. If you are planning to, or are currently using a Home Care Agency, is this Individual Care 

Plan in addition to that required by the Community? 

Yes ________ 

No ________


III. 

The Facility 


A. Attach an Architectural Floor Plan indicating rooms and areas to be used under this 

waiver. 

B. Briefly describe your facility’s construction. 

C. Yes No 

Automatic Sprinkler System throughout the building? ____ ____ 

(Attach a copy of the most recent inspection.) 

Connected to Central Fire Response Stations? ____ ____ 

Equipped with Centralized Emergency Call System? ____ ____ 

Equipped with Supervised Smoke Detection System? 

Equipped with handrails on both sides of resident-use 

corridors and stairways? ____ ____ 

Smoke barriers dividing each floor? ____ ____ 

C. Attach documentation of compliance with: 

487.11(F)(1) or 488.11(c) - (Smoke Detector System) 

487.11(K)(15) or 488.11(G)(15) – (Equipment Inspected/Tested) 

Other Waivers 

A. Provide the Regulation Citation and/or a Description of any other waivers currently in 

effect in your facility.



B. How will continuation of these waivers effect the residents with special care needs? 

Attach this RSWP request to the “ACF Waiver Request/Equivalency Notification 

Form” (DOH-4235), completing Section A and under Section B II. Waivers - 

check program waiver. II Waivers B. and C should not be completed because 

this information is addressed on this RSWP request form. The operator must 

then sign and date the form and sent it to the appropriate Regional Office for a 

recommendation.

M E M O R A N D U M - LeadingAge New York

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