Section 1001.8 - Consumer and Resident Protections

1001.8 Consumer and Resident Protections

(a) General. An operator of an assisted living residence must provide each resident with considerate and respectful care and promote the resident’s dignity, autonomy, independence and privacy in the least restrictive and most home-like setting commensurate with the resident’s preferences and physical and mental status.

(b) Resident Rights.

(1) Each operator of an assisted living residence must adopt and post conspicuously in a public place in the residence a statement of the rights and responsibilities of residents and shall treat each resident in accordance with the provisions of such statement.

(2) Resident’s rights and responsibilities shall include but not be limited to the following:

(i) Every resident’s participation in assisted living shall be voluntary, and prospective residents shall be provided with sufficient information regarding the residence to make an informed choice regarding participation and acceptance of services;

(ii) Every resident’s civil and religious liberties, including the right to independent personal decisions and knowledge of available choices, shall not be infringed;

(iii) Every resident shall have the right to have private communications and consultations with his or her physician, attorney, and any other person;

(iv) Every resident, resident’s representative and resident’s legal representative, if any, shall have the right to present grievances on behalf of himself or herself or others, to the residence’s staff, administrator or assisted living operator, to governmental officials, to long term care ombudsmen or to any other person without fear of reprisal, and to join with other residents or individuals within or outside of the residence to work for improvements in resident care;

(v) Every resident shall have the right to manage his or her own financial affairs;

(vi) Every resident shall have the right to have privacy in treatment and in caring for personal needs;

(vii) Every resident shall have the right to confidentiality in the treatment of personal, social, financial and medical records, and security in storing personal possessions;

(viii) Every resident shall have the right to receive courteous, fair and respectful care and treatment and a written statement of the services provided by the residence, including those required to be offered on an as-needed basis;

(ix) Every resident shall have the right to receive or to send personal mail or any other correspondence without interception or interference by the operator or any person affiliated therewith;

(x) Every resident shall have the right not to be coerced or required to perform the work of staff members or contractual work;

(xi) Every resident shall have the right to have security for any personal possessions if stored by operator;

(xii) Every resident shall have the right to receive adequate and appropriate assistance with activities of daily living, to be fully informed of their medical condition and proposed treatment, unless medically contraindicated, and to refuse medication, treatment or services after being fully informed of the consequences of such actions, provided that an operator shall not be held liable or penalized for complying with the refusal of such medication, treatment or services by a resident who has been fully informed of the consequences of such refusal;

(xiii) Every resident and visitor shall have the responsibility to obey all reasonable regulations of the residence and to respect the personal rights and private property of the other residents;

(xiv) Every resident shall have the right to include their signed and witnessed version of the events leading to an accident or incident involving such resident in any report of such accident or incident;

(xv) Every resident shall have the right to receive visits from family members and other adults of the resident’s choosing without interference from the assisted living residence; and

(xvi) Every resident shall have the right to written notice of any fee increase not less than forty-five days prior to the proposed effective date of the fee increase, provided however, providing additional services to a resident in accordance with section 461-c(2) of the Social Services Law, shall not be considered a fee increase pursuant to this paragraph in the following situations:

(a) if a resident, resident representative or legal representative agrees in writing to a specific rate or fee increase, through an amendment of the residency agreement, due to the resident’s need for additional care, services or supplies, the operator may increase such rate upon less than forty-five days written notice;

(b) if the operator provides additional care, services or supplies upon the written order of the resident’s primary physician, the operator may, through an amendment to the residency agreement, increase such rate upon less than forty-five days written notice; or

(c) in the event of an emergency which affects the resident, the operator may assess additional charges for the benefit of the resident as are reasonable and necessary for services, materials, equipment and food supplies during such emergency.

(xvii) Every resident of an assisted living residence that is also certified to provide enhanced assisted living and/or special needs assisted living shall have a right to be informed by the operator, by a conspicuous posting in the residence, on at least a monthly basis, of the then-current vacancies available, if any, under the operator’s enhanced and/or special needs assisted living programs.

(xviii) Every resident of an enhanced assisted living residence shall have the right to refuse consent to advanced tasks performed by an advanced home health aide, in which case the operator shall provide for the performance of such tasks by a registered professional nurse.

(3) Waiver of any provision contained in paragraph (2) of this section shall be void.

(4) Each assisted living operator shall give a copy of the statement of rights and responsibilities to each resident at or prior to the time of admission to the residence, the resident’s representative and resident’s legal representative, if any, and to each member of the residence’s staff and any current resident.

(c) Resident organizations.

(1) The operator shall encourage and assist residents to organize and maintain committees, councils, or such other self-governing body as the residents may choose.

(2) The operator shall:

(i) assure that the residents’ organization:

(a) meets as often as the membership deems necessary;

(b) is chaired and directed by the residents; and

(c) may meet with any member of the supervisory staff, provided that reasonable notice of the request is given to such staff;

(ii) appoint a staff person to act as an advisor to the residents’ organization, who shall serve as a liaison between the organization and administration to report all problems, issues and suggestions discussed by the residents which require administrative action; and

(iii) assure that any complaints, problems or issues reported by the residents’ organization to the designated staff person or administration are addressed and that a written report addressing the problems, issues or suggestions is sent to the organization.

(d) Family organizations.

(1) The operator shall encourage and assist residents’ families and representatives who so desire to organize and maintain committees, councils, or such other self-governing body as the residents’ families and representatives may choose.

(2) The operator shall:

(i) assist the residents’ family and representative organization:

(a) in meeting as often as the membership deems necessary;

(b) in assuring the organization is chaired and directed by the residents’ families and/or representatives; and

(c) in meeting with any member of the supervisory staff, provided that reasonable notice of the request is given to such staff;

(ii) appoint a staff person to act as an advisor to the residents’ family and representative organization, who shall serve as a liaison between the organization and administration to report all problems, issues and suggestions discussed by the families and representatives which require administrative action; and

(iii) assure that any complaints, problems or issues reported by the residents’ family and representative organization, if formed, to the designated staff person or administration are addressed, and that a written report addressing the problems, issues or suggestions is sent to the organization.

(iv) assure that the residents’ family and representative organization, if formed, have the freedom to meet without interference and be provided space to conduct such meetings.

(e) Grievances and recommendations. The operator shall develop written procedures and shall establish and maintain a system to receive and respond, within 21 days of receipt, to grievances and recommendations for change or improvement in residence operations and programs which are presented by residents and their family and representatives, in accordance with section 487.5 (c) and 488.5 (b) of Title 18 NYCRR.

(f) Residency agreements and disclosures.

(1) An operator of an assisted living residence must comply with the following standards in addition to the applicable standards contained in sections 487.5 (d), (e) and (f) and 488.5 (c) of Title 18 NYCRR.

(2) Every operator shall execute with each resident a written residency agreement, in no less than twelve point type and written in plain language, which satisfies the requirements of this section. Such agreement shall:

(i) be dated and signed by the operator, the resident, resident’s representative, and resident’s legal representative, if any, and any other party to be charged under the agreement;

(ii) contain the entire agreement of the parties and shall include the disclosures required by subdivision (5) of this section.

(3) The resident, resident’s representative and resident’s legal representative, if any, shall be given a complete copy of the agreement and all supporting documents and attachments and any changes whenever changes are made to the agreement.

(4) The residency agreement shall include, at a minimum:

(i) the name, telephone number, street address and mailing address of the residence;

(ii) the name and mailing address of the owner of the residence and at least one natural person authorized to accept personal service on behalf of the owner of the residence;
(iii) the name and address of the assisted living operator and at least one natural person authorized to accept personal service on behalf of the operator;

(iv) a statement, to be updated as necessary, describing the licensure or certification status of the assisted living operator and any provider offering home care services or personal care services under an arrangement with the residence, including a specific listing of such providers;

(v) the effective period of the agreement;

(vi) a description of the type and amount of services and any limitation thereto, to be provided to the resident and the base rate to be paid by the resident for those services;

(vii) a description of any additional services available for an additional, supplemental, or community fee from the assisted living operator directly or through arrangements with the operator, stating who would provide such services, if other than such operator;

(viii) a rate or fee schedule, including any additional, supplemental, or community fees charged for services provided to the resident, with a detailed explanation of which services and amenities are covered by such rates, fees, or charges;

(ix) a description of the process through which the agreement may be modified, amended, or terminated, and setting forth the terms and time frames under which the agreement may be terminated by either party;

(x) a description of the complaint resolution process available to residents;

(xi) the name of the resident’s representative and resident’s legal representative, if any, and a description of the representative’s responsibilities;

(xii) the criteria used by the operator to determine who may be admitted and who may continue to reside in the residence, including criteria related to the resident’s care needs and compliance with reasonable rules of the residence;

(xiii) procedures and standards for termination of contract, discharge and transfer to another dwelling or facility;

(xiv) billing and payment procedures and requirements;

(xv) procedures in the event the resident, resident’s representative or resident’s legal representative are no longer able to pay for services provided for in the resident agreement or for additional services or care needed by the resident;

(xvi) terms governing the refund of any previously paid fees or charges in the event of a resident’s discharge from the assisted living residence or termination of the resident agreement, and
(xvii) clear notice to the consumer that the operator cannot mandate that a resident or other person agree to a guarantor of payment as a condition of admission unless the operator has reasonably determined, on a case by case basis, that the prospective resident would lack either the current capacity to manage financial affairs and/or the financial means to assure payment due under the residency agreement.

(5) In conjunction with any marketing materials and with the residency agreement required by this section, the assisted living operator shall disclose on a separate information sheet in plain language and in twelve point type the following to (a) any individual who expresses an interest in residing in the residence, and to his or her designated representative and his or her legal representative, if any, upon request or prior to admission, whichever occurs first, and (b) any current resident and to his or her designated representative and his or her legal representative, if any, if such information has not previously been disclosed to them:

(i) the Consumer Information Guide developed by the commissioner;

(ii) a statement: listing and describing the residence’s licensure and stating whether it has an enhanced assisted living certificate and/or special needs enhanced assisted living certificate and the availability of enhanced assisted living and/or special needs beds; stating the maximum number of enhanced assisted living beds and/or special needs assisted living beds the operator is currently approved to provide; and stating that the operator will post prominently in the residence, on at least a monthly basis, the then-current number of vacancies under its enhanced assisted living and/or special needs assisted living programs.

(iii) any ownership interest in excess of ten percent on the part of the operator, whether legal or beneficial, in any entity which provides care, material, equipment or other services to residents;

(iv) any ownership interest in excess of ten percent on the part of any entity which provides care, material, equipment or other services to residents, whether legal or beneficial, in the operator;

(v) a statement regarding the ability of residents to receive services from service providers with whom the operator does not have an arrangement;

(vi) a statement that residents shall have the right to choose their health care providers, notwithstanding any other agreement to the contrary;

(vii) a statement regarding the availability of public funds for payment for residential, supportive or home health services including, but not limited to availability of coverage of home health services under Title 18 of the Federal Social Security Act (Medicare);

(viii) the Department’s toll free telephone number for reporting of complaints regarding home care services and the services provided by the assisted living operator; and

(ix) a statement regarding the availability of long term care ombudsman services and the telephone number of the local and state long term care ombudsman.

(6) An operator shall use the Model Residency Agreement for assisted living residences developed by the Department, or a Department-approved substitute. Any proposed substitute Residency Agreement must include or otherwise address every provision required by statute or regulation included in the Model Residency Agreement in a manner acceptable to the Department.

(7) Assisted Living Residency Agreements and related documents executed by each resident, resident’s representative or resident’s legal representative shall be maintained by the operator in files from the date of execution until three years after the agreement is terminated. The agreements shall be made available for inspection by the commissioner upon request at any time.

Effective Date: 
Wednesday, December 12, 2018
Doc Status: 
Complete