VOLUME B-1 (Title 18)

Article 3 - Child-Care Agencies - OCFS

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Part 441 - GENERAL - OCFS

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PART 441

GENERAL

(Statutory authority: Constitution, art. XVII, Section 2; Executive Law,
Section 750; Social Services Law, SectionSection 20, 34, 153, 374-b, 387, 398-a, 409-f,
462; L. 1979, ch. 611; L. 1983, ch. 570, Section 7)
Sec.
441.1 Applicability
441.2 Definitions
441.3 Voluntary authorized agencies; general terms and conditions
441.4 Policy and policy manuals
441.5 Age requirements for care
441.6 Solicitation of funds
441.7 Records and reports
441.8 Abuse or maltreatment of children
441.9 Discipline
441.10 Work experiences for children
441.11 Religion
441.12 Money and personal property
441.13 Education
441.14 Social services
441.15 Special services
441.16 Disaster and emergency plans
441.17 Restraint of children in care
441.18 Children's privacy rights
441.19 Appropriate custodial conduct
441.20 Family Court review of the status of children in foster care
441.21 Casework contacts
441.22 Health and medical services

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Part 442 - INSTITUTIONS - OCFS

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PART 442

INSTITUTIONS

(Statutory authority: Constitution, art. XVII, Section 2; Executive Law,
Section 750; Social Services Law, SectionSection 20, 34, 355, 363-a, 387, 462)
Sec.
442.1 Concurrent care of juvenile delinquents and persons in need of
supervision with dependent, destitute, abandoned and neglected
children
442.2 Room isolation
442.3 Public authorized agency
442.4 Buildings and equipment
442.5 Fire protection
442.6 Sleeping accommodations
442.7 Bathing and toilet facilities
442.8 Dining facilities
442.9 Living rooms
442.10 Recreation facilities
442.11 Health facilities
442.12 Kitchens
442.13 Food storage
442.14 Telephones
442.15 Accident prevention
442.16 Sanitation
442.17 Mother and baby facilities; special provisions
442.18 Personnel; voluntary authorized agencies
442.19 Child care services
442.20 Recreation
442.21 Health and medical services
442.22 Nutrition services
442.23 Discontinuance of operation
442.24 Respite care and services in group residences
442.25 Exceptions

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Part 443 - CERTIFIED AND APPROVED FOSTER FAMILY BOARDING HOMES - AGENCY PROCEDURE FOR CERTIFICATION, APPROVAL AND SUPERVISION - OCFS

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PART 443

CERTIFIED AND APPROVED FOSTER FAMILY BOARDING HOMES -

AGENCY PROCEDURE FOR CERTIFICATION, APPROVAL AND SUPERVISION

(Statutory authority: Social Services Law, Sections 20, 34, 355,
363-a, 371, 374, 375, 376, 377, 378, 379, 395, 424-a, 427)
Sec.
443.1 Definitions
443.2 Community relations
443.3 Agency requirements
443.4 Supervision
443.5 Removal from foster family care
443.6 Return to foster family care after interruption in care; return
to a family boarding home following placement in a foster care
institution
443.7 Agency procedures for approving relative foster homes on an emergency basis

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Part 444 - REQUIREMENTS FOR LICENSED, CERTIFIED AND APPROVED FOSTER FAMILY BOARDING HOMES - OCFS

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PART 444

REQUIREMENTS FOR LICENSED, CERTIFIED AND APPROVED

FOSTER FAMILY BOARDING HOMES

(Statutory authority: Social Services Law, Sections 20, 34, 358-a,
372-b, 373-a, 375, 376, 377, 378, 379, 384-a, 398-b, 450)
Sec.
444.1 Definitions
444.2 Foster homes
444.3 Applications and forms
444.4 Register, certificate and license to be kept
444.5 Requirements for license and certificate
444.6 Annual renewal of certificates and licenses; reopenings and
changes in certified and licensed foster homes
444.7 Nonrenewal certificates or licenses; involuntary decertification
444.8 Requirements for approval of relative foster homes
444.9 Annual review of approved relative foster homes; reopenings and
changes in approved foster homes
444.10 Nonrenewal or revocation of an approval for relative foster homes
444.11 Approval of certified or approved foster homes as providers of
respite care and services

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Part 445 - SCHOOL NOTIFICATIONS - OCFS

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PART 445

SCHOOL NOTIFICATIONS

(Statutory authority: Constitution, art. XVII, Section 2; Education Law,
Section 3202; Executive Law, SectionSection 747, 750; Social Services Law, Sections 20, 34)
Sec.
445.1 School district notification of a foster child placed in a foster
boarding home, agency boarding home or group home
445.2 Confidentiality

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Part 446 - DESIGNATED EMERGENCY FOSTER FAMILY BOARDING HOME CARE - OCFS

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PART 446

DESIGNATED EMERGENCY FOSTER FAMILY BOARDING HOME CARE

(Statutory authority: Social Services Law, Sections 20, 34, 395)
Sec.
446.1 Scope
446.2 Definition
446.3 Establishing a designated emergency foster family boarding home
446.4 Reimbursement for designated emergency foster family boarding home
care
446.5 Mandated training for foster parents providing care in designated
emergency foster family boarding homes
446.6 Intake for designated emergency foster family boarding homes
446.7 Services for children in designated emergency foster family boarding home care

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Part 447 - AGENCY BOARDING HOMES - OCFS

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PART 447

AGENCY BOARDING HOMES

(Statutory authority: Constitution, art. XVII, Section 2;
Social Services Law, Sections 20, 34, 374-b, 398-a, 462)
Sec.
447.1 Conditions of operations of an agency boarding home program
447.2 Requirements for each agency boarding home
447.3 Exceptions
447.4 Procedure for initiation of agency boarding home program
447.5 Notice to the department of the opening of an agency boarding
home; periodic reports
447.6 Discontinuance
447.7 Supervised independent living
447.8 Waivers
447.9 Approved respite care and services provider

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Part 448 - GROUP HOMES - OCFS

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PART 448

GROUP HOMES

(Statutory authority: Constitution, art. XVII, Section 2;
Social Services Law, Sections 17, 20, 21, 34, 374-c, 387, 462)
Sec.
448.1 Definitions
448.2 Conditions of operation of a group home program
448.3 Requirements for each group home
448.4 Enforcement; exceptions
448.5 Procedure for initiation of group home program
448.6 (Reserved)
448.7 Discontinuance
448.8 (Reserved)
448.9 Recreation
448.10 Approved respite care and services provider

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Part 451 - GROUP EMERGENCY FOSTER CARE - OCFS

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PART 451

GROUP EMERGENCY FOSTER CARE

(Statutory authority: Social Services Law, Section 20(3)(d), 34(3)(f), 395)
Sec.
451.1 Applicability
451.2 Establishment and operation of group emergency foster care
programs
451.3 Limitations on reimbursement
451.4 Intake
451.5 Services
451.6 Staffing requirements

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Article 4 - Residential Programs for Victims of Domestic Violence - OCFS

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Part 452 - GENERAL PROVISIONS - OCFS

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PART 452

GENERAL PROVISIONS

(Statutory authority: Social Services Law, Sections 20 [3][d], 34[3][f],
art. 6-A)
Sec.
452.1 Scope
452.2 Definitions
452.3 Application for operating certificate
452.4 Required documentation in support of an application to operate a
residential program for victims of domestic violence
452.5 Issuance, condition, duration and revocation of operating certificates
452.6 Renewal of the operating certificate
452.7 Amendment of the operating certificate
452.8 Supervision and inspection by the department
452.9 General operational standards
452.10 Confidentiality

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Part 453 - STANDARDS FOR DOMESTIC VIOLENCE SHELTERS AND DOMESTIC VIOLENCE PROGRAMS - OCFS

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PART 453

STANDARDS FOR DOMESTIC VIOLENCE

SHELTERS AND DOMESTIC VIOLENCE PROGRAMS

(Statutory authority: Social Services Law, Sections 20[3][d], 34[3][f],
art. 6-A)
Sec.
453.1 Scope
453.2 Definitions
453.3 General requirements for operation
453.4 Emergency services
453.5 Nutrition
453.6 Staffing
453.7 Security
453.8 Environmental standards
453.9 Disaster and emergency plans

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Part 454 - STANDARDS FOR SAFE HOME NETWORKS AND SAFE HOMES - OCFS

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PART 454

STANDARDS FOR SAFE HOME NETWORKS AND SAFE HOMES

(Statutory authority: Social Services Law, Sections 20[3][d], 34[3][f],
art. 6-A)
Sec.
454.1 Scope
454.2 Definitions
454.3 General requirements for operation of a safe home network
454.4 Responsibility for placement
454.5 Maximum length of stay
454.6 Safe home network responsibilities/resident responsibilities
454.7 Emergency services
454.8 Staffing
454.9 Requirements for approving safe homes
454.10 Responsibilities of safe home networks and safe homes
454.11 Records and reports
454.12 Supervision of safe homes

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Part 455 - STANDARDS FOR DOMESTIC VIOLENCE SPONSORING AGENCIES AND SAFE DWELLINGS - OCFS

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PART 455

STANDARDS FOR DOMESTIC VIOLENCE

SPONSORING AGENCIES AND SAFE DWELLINGS

(Statutory authority: Social Services Law, Sections 20[3] [d], 34[3] [f],
art. 6-A)
Sec.
455.1 Scope
455.2 Definitions
455.3 General requirements for operation of a domestic violence sponsoring agency
455.4 Maximum length of stay
455.5 Domestic violence sponsoring agency and resident responsibilities
455.6 Emergency services
455.7 Staffing
455.8 Security
455.9 Environmental standards for safe dwellings
455.10 Records and reports
455.11 Supervision of domestic violence safe dwellings

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Article 5 - Adult and Family Services - OCFS

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Part 456 - INFORMATION AND REFERRAL SERVICES - OCFS

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PART 456

INFORMATION AND REFERRAL SERVICES

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
456.1 General
456.2 Information and resource referral system (IRRS)
456.3 Publicizing information and referral services
456.4 Outreach for information and referral services

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Part 457 - PROTECTIVE SERVICES FOR ADULTS - OCFS

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PART 457

PROTECTIVE SERVICES FOR ADULTS

(Statutory authority: Social Services Law, Sections 20, 34, 309, 473,
473-a, 473-b, 473-c; Mental Hygiene Law, art. 81)
Sec.
457.1 General
457.2 PSA client case record
457.3 Eligibility for PSA
457.4 Staffing standards
457.5 Duties and responsibilities
457.6 Serving involuntary clients
457.7 Coordination and utilization of community resources
457.8 Annual plan for the provision of PSA
457.9 Immunity from civil liability
457.10 Short-term involuntary protective services orders
457.11 Orders to gain access to persons believed to be in need of
protective services
457.12 Community guardianship
457.13 Notice
457.14 Informing referral sources
457.15 Reports to law enforcement officials
457.16 Confidentiality

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Part 458 - RESIDENTIAL PLACEMENT SERVICES FOR ADULTS - OCFS

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RESIDENTIAL PLACEMENT SERVICES FOR ADULTS

(Statutory authority: Social Services Law, Sections 20[3][d], 34[f], 34-a)
Sec.
458.1 Scope
458.2 Development and monitoring of family-type homes for adults
458.3 Assessment and placement services
458.4 Supervision of, and services provided to, residents in family-type
homes for adults
458.5 Supportive services to residents in other certified facilities
458.6 Eligibility for services
458.7 Record requirements

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Part 459 - COMMUNITY SENIOR CITIZENS CENTERS - OCFS

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PART 459

COMMUNITY SENIOR CITIZENS CENTERS

(Statutory authority: Social Services Law, Sections 20, 34, 370)
Sec.
459.1 Responsibilities of social services officials
459.2 Definitions
459.3 Administrative requirements
459.4 Program requirements
459.5 Eligibility for services
459.6 Other requirements
459.7 Reimbursement
459.8 Validation process under group eligibility requirements
459.9 Specific validation procedures
459.10 Reporting
459.11 Use of validation percentages

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Part 460 - HOMEMAKER SERVICE - OCFS

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PART 460

HOMEMAKER SERVICE

(Statutory authority: Social Services Law, Sections 20, 34, 131, 344, 407)
Sec.
460.1 General
460.2 Homemaker program standards
460.3 Selection of homemakers

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Part 461 - HOME-DELIVERED MEALS - OCFS

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PART 461

HOME-DELIVERED MEALS

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
461.1 Definitions
461.2 Eligibility
461.3 Authorization
461.4 Responsibility for payment
461.5 Utilization of other resources
461.6 Reimbursement

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Part 462 - NONRESIDENTIAL SERVICES FOR VICTIMS OF DOMESTIC VIOLENCE - OCFS

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PART 462

NONRESIDENTIAL SERVICES FOR VICTIMS OF DOMESTIC VIOLENCE

(Statutory authority: Social Services Law, Sections 20, 34; L.1993,ch.53)
Sec.
462.1 Scope
462.2 Definitions
462.3 Social services district requirements
462.4 Service requirements
462.5 Staffing requirements
462.6 Client eligibility requirements
462.7 Records and reports
462.8 Reporting of child abuse
462.9 Confidentiality
462.10 Reimbursement for social services district expenditures

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Part 463 - FAMILY-PLANNING SERVICES - OCFS

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PART 463

FAMILY-PLANNING SERVICES

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
463.1 Scope
463.2 The offer
463.3 Educational services
463.4 Social services
463.5 Medical services
463.6 Conditions for providing services
463.7 Documentation
463.8 Reporting
463.9 Reimbursement

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Part 464 - VOLUNTEER SERVICES PROGRAM - OCFS

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PART 464

VOLUNTEER SERVICES PROGRAM

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
464.1 Volunteer services program
464.2 Procedure for initiating volunteer program
464.3 Organizational responsibility for implementation of volunteer
program
464.4 Recruitment, utilization, training and assignment of volunteers
464.5 Reimbursement for out-of-pocket expenses
464.6 Coordination with casework and administrative services
464.7 Workers' compensation for volunteer workers

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Part 465 - CONFIDENTIALITY OF INFORMATION COLLECTED BY THE CHILD CARE REVIEW SERVICE - OCFS

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PART 465

CONFIDENTIALITY OF INFORMATION COLLECTED

BY THE CHILD CARE REVIEW SERVICE

(Statutory authority: Social Services Law, Sections 20, 34, 442, 444)
Sec.
465.1 Confidentiality and access of information
465.2 Notification to the child or representative
465.3 Failure to comply with confidentiality and access provisions

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Article 6 - Operating Certificates--Children's Facilities - OCFS

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Part 476 - GENERAL- OCFS

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PART 476

GENERAL

(Statutory authority: Constitution, art. XVII, Section 2;
Social Services Law, Section 460-b, 460-d, 460-f)
Sec.
476.1 Applicability
476.2 Terms and conditions

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Part 477 - ISSUANCE OF OPERATING CERTIFICATES - OCFS

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PART 477

ISSUANCE OF OPERATING CERTIFICATES

(Statutory authority: Constitution, art. XVII, Section 2;
Social Services Law, Sections 20, 34, 355, 460-b, 460-d, 460-f)
Sec.
477.1 Initial issuance
477.2 Renewals
477.3 Applications
477.4 Approval of application
477.5 Denial of application
477.6 Coordination with other application procedures

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Article 7 - Certificates of Incorporation; Miscellaneous Corporate Matters - OCFS

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Part 481 - GENERAL - OCFS

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GENERAL

(Statutory authority: N.Y. Const., art. XVII, Section 2;

Social Services Law, SectionSection 460-b, 460-d, 460-f)
Sec.
481.1 Applicability
Volume: B Statutory Authority: (Statutory authority: N.Y. Const., art. XVII, Section 2; Social Services Law, Sections 460-b, 460-d, 460-f)

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Part 482 - APPROVAL OF CERTIFICATES OF INCORPORATION - OCFS

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PART 482

APPROVAL OF CERTIFICATES OF INCORPORATION

(Statutory authority: N.Y. Const., art. XVII, Section 2;

Social Services Law, SectionSection 20, 34, 460-a)
Sec.
482.1 Applications
482.2 Special terms and conditions
482.3 Not-for-profit day-care corporation
482.4 Business day-care corporation
482.5 Approval of application

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Part 483 - MISCELLANEOUS - OCFS

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PART 483

MISCELLANEOUS

(Statutory authority: N.Y. Const., art. XVII, Section 2; Social Services Law,

SectionSection 20, 34, 355, 460-a, 460-c)
Sec.
483.1 Voluntary dissolution
483.2 Name of corporation
483.3 Denial of application

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Part 484 - DEVELOPMENT AND IMPROVEMENT OF COMMUNITY FACILITIES - OCFS

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PART 484

DEVELOPMENT AND IMPROVEMENT OF COMMUNITY FACILITIES

(Statutory authority: Social Services Law, Sections 20, 34, 410-m; Private
Housing Finance Law, Section 364)
Sec.
484.1 Fees and charges in connection with mortgage financing

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SubChapter D - Adult-Care Facilities

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Part 485 - GENERAL PROVISIONS

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Statutory Authority: 
Social Services Law, Sections 20, 34, 131-o, 209[2], 210[1], 363-a(2), 367-e, 460, 460-a--460-g, 461, 461-a--461-i, 461-k

Section 485.1 - Applicability

Section 485.1 Applicability. (a) This Part shall apply, except as may be otherwise limited, to adult-care facilities as defined herein. If any provision of this Part or of Parts 486, 487, 488, 490, 492, 493 or 494 of this Title or any portion thereof is held invalid, the remaining sections shall not be affected by such holding and shall remain in full force and effect.

(b) This Part shall not apply to State institutions for the education and support of the blind, the deaf and the dumb, facilities subject to the approval, visitation and inspection of the State Department of Mental Hygiene or the State Commission of Correction, facilities operated by or under the supervision of the Division for Youth or facilities subject to the supervision of the Department of Health pursuant to article 28 of the Public Health Law, nor to any housing projects established pursuant to the Private Housing Finance Law, the Public Housing Law, the former Membership Corporations Law or the Not-for-Profit Corporation Law, except for those distinct programs operated by such projects which provide supervision or personal care and which are approved or certified by the department.

(c) Any person, partnership, corporation, organization, agency, governmental unit or other entity which operates an adult-care facility is subject to the jurisdiction of the department and must comply with these regulations or cease operation.

(d) Any action to establish, operate, expand or modify an adult-care facility shall be subject to the approval of the department. No adultcare facility shall be operated unless and until the operator obtains the certification of the department.

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Effective Date: 
Wednesday, October 23, 2002

Section 485.2 - Definitions.

485.2 Definitions. (a) Adult-care facility shall mean a family-type home for adults, a shelter for adults, a residence for adults or an adult home, which provides temporary or long-term residential care and services to adults who, though not requiring continual medical or nursing care as provided by facilities licensed or operated pursuant to article 28 of the Public Health Law or articles 19, 23, 29 and 31 of the Mental Hygiene Law, are, by reason of physical or other limitations associated with age, physical or mental disabilities or other factors, unable or substantially unable to live independently.

(b) Adult home shall mean an adult-care facility established and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care and supervision to five or more adults unrelated to the operator.

(c) Enriched housing program shall mean an adult-care facility established and operated for the purpose of providing long-term residential care to five or more adults, primarily persons 65 years of age or older, in community-integrated settings resembling independent housing units. Such program shall provide or arrange the provision of room, and provide board, housekeeping, personal care and supervision.

(d) Residence for adults means an adult-care facility established and operated for the purposes of providing long-term residential care, room, board, housekeeping, case management, activities and supervision to five or more adults, unrelated to the operator, who are unable or substantially unable to live independently.

(e) Shelter for adults shall mean an adult-care facility established and operated for the purposes of providing temporary residential care, room, board, supervision, information and referral, and, where required by the department or otherwise deemed necessary by the operator, social rehabilitation services, for adults in need of temporary accommodations, supervision and services. Such definition shall not include facilities providing such temporary residential services to fewer than 20 persons, unless such facility is operated by a social services district.

(f) Family-type home for adults shall mean an adult-care facility established and operated for the purpose of providing long-term residential care, room, board, housekeeping, supervision and/or personal care to four or fewer adults unrelated to the operator.

(g) Unrelated to the operator of a family-type home shall mean that the relationship between the operator and the resident is not that of spouse, parent or parent-in-law, child or stepchild.

(h) Public home means an adult home, shelter for adults or residence for adults operated by a social services district.

(i) Private proprietary adult-care facility shall mean an adult-care facility which is operated for compensation and profit.

(j) An operator shall include any natural person or entity which provides or purports to provide residential care and services in an adult-care facility.

(k) Operating certificate shall mean a time-limited, nontransferable document issued by the department to signify approval to operate an adult-care facility.

(l) Application shall mean the process of submitting prescribed data and information to the department for an operating certificate for a proposed facility, or for the modification or renewal of the operating certificate of an existing facility.

(m) Certification shall mean the issuance of an operating certificate by the department, following appropriate review and such site visits as may be necessary, authorizing an operator to operate an adult-care facility.

(n) Determination of public need is the process by which the department, in consultation with appropriate State and local planning agencies, determines whether there is a need for more adult-care facility beds in a prescribed geographic area.

(o) Prescribed geographic area shall mean the county in which the proposed program is located, unless:

(1) the department determines that another geographic area is more appropriate because an applicant proposes to serve a special, ethnic or religious population, or because of population density, adult-care facility distribution or service availability; or

(2) the applicant demonstrates, to the satisfaction of the department, that another geographic area defining the service area is more appropriate.

(p) Department shall mean the New York State Department of Social Services.

(q) Commissioner shall mean the Commissioner of the New York State Department of Social Services.

(r) (1) Services for nonresidents in adult homes, residences for adults and enriched housing programs means an organized program of services which an operator of an adult home, residence for adults or enriched housing program is authorized to provide to residents of such facilities but which are provided to nonresidents who are aged or disabled for the purpose of enabling such persons to remain in or return to the community. Such services may include an organized day program, temporary residential care, or other services the facility is authorized to provide.

(2) Eligible nonresident participant means a person 18 years of age or older who is not a resident of an adult home, residence for adults or enriched housing program and who, by reason of social, physical, and/or mental dependencies, requires nonresident services provided by such facilities or programs in order to remain in or return to the community.

(3) Day program means an organized program for nonresidents of adult homes, residences for adults or enriched housing programs which includes personal care, supervision and such other services which the operator is authorized to provide to residents of such facilities but which are provided for less than 24 hours during any period of the day or night.

(4) Temporary residential care means the provision of care to frail or disabled adults on behalf of or in the absence of the person's caregiver for up to six weeks in any 12-month period, in an adult home, residence for adults or enriched housing program. Care includes those services that the adult home, residence for adults or enriched housing program is authorized to provide to residents of such facilities.

(s) Assisted living program means an entity which is approved to operate pursuant to section 485.6(n) of this Title, and which is established and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care, supervision, and providing or arranging for home health services to five or more eligible adults unrelated to the operator.

 

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Section 485.3 - Responsibility of government agencies.

485.3 Responsibility of government agencies. (a) The commissioner, acting directly or through local social services districts, and with the cooperation of other State agencies, shall have the authority and responsibility to:

(1) promote the development of sufficient and appropriate residential care programs for dependent adults;

(2) prescribe and promulgate regulations, standards, policies and procedures governing the establishment and operation of adult-care facilities which assure the protection of the health, safety and wellbeing of the residents in the least restrictive environment available and which provide residents with the opportunity for maximum privacy, personal development and independence;

(3) authorize, through the issuance of operating certificates, qualified operators to establish and operate adult-care facilities;

(4) approve, prior to endorsement by a justice of the Supreme Court and filing with the Secretary of State, certificates of incorporation or amendments thereto of not-for-profit corporations which have among their purposes the establishment and operation, or fundraising for the eventual establishment and operation, of any adult-care facility subject to the jurisdiction of the department; and

(5) administer a system of supervision, inspection and enforcement for adult-care facilities which assures compliance with regulations and the maintenance of standards of care.

(b) The Offices of the Department of Mental Hygiene:

(1) shall join with the department in the inspection of any adult-care facility, other than family-type homes for adults, which cares for a significant number of mentally disabled persons, and may, by mutual agreement with the department, participate when the number of mentally disabled persons is less than significant or where the inspection and supervision of family-type homes for adults is involved; and

(2) may propose additional standards to protect the health, safety and well-being of mentally disabled persons. Such standards may, with the approval of the department, be adopted and promulgated as regulations by the department and shall apply to adult-care facilities which care for a significant number of mentally disabled persons.

(3) For purposes of this Chapter, an adult-care facility is considered to have a significant number of mentally disabled persons when:

(i) for the purpose of joint inspections with an Office of the Department of Mental Hygiene, the resident population is composed of 25 percent or more persons released or discharged from any facility operated or certified by an Office of the Department of Mental Hygiene; or

(ii) for the purposes of requiring a written agreement between an operator and a mental health service provider, 25 percent or more of the resident population or 25 residents, whichever is less, have been released or discharged from any facility operated or certified by an Office of the Department of Mental Hygiene.

(c) Local social services districts. The commissioner has delegated responsibility for the inspection and supervision of family-type homes for adults to the commissioner of the local social services district in which the facility is located. The commissioner of the local social services district shall perform such duties and make such reports regarding these facilities as are prescribed by the department.

(d) For the purposes of the assisted living program, the Department of Health will:

(1) propose and, with the approval of the department, promulgate any standards deemed necessary to implement the assisted living program; and

(2) coordinate surveillance and enforcement efforts with the department.

 

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Section 485.4 - Certificates of incorporation.

485.4 Certificates of incorporation. (a) Any proposed or existing not-for-profit corporation desiring to file or amend a certificate of incorporation for the purpose of establishing and operating, or for the purpose of fundraising for the eventual establishment and operation of, an adult-care facility shall, prior to the endorsement of such certificate by a justice of the Supreme Court and filing with the Secretary of State, secure the written approval of the commissioner.

(b) In no event shall any existing corporation or other entity hold itself out as being authorized to operate or to raise funds for operation of a facility subject to the approval of the department without having secured the prior written approval of the department.

(c) A request for approval of a certificate of incorporation or amendment thereto for the purpose of establishing and operating an adult-care facility shall be submitted to the department in accord with the application procedures set forth in this Part.

(d) A request for approval of a certificate of incorporation or amendment thereto for the purpose of soliciting funds for the eventual establishment and operation of an adult-care facility shall contain such information as may be required to determine that the not-for-profit corporation has the competency to develop and operate a facility in compliance with applicable law and regulations, and would be successful in raising funds necessary to establish the proposed facility within a period of not more than five years from the date of the department's approval.

(e) The board of directors of a not-for-profit corporation shall have a minimum of seven members.

(f) No officer of the board of directors of a not-for-profit corporation may be, either at the time of application or thereafter, the chief administrative officer, executive director, administrator, or an employee responsible for any financial operation of the facility or program.

(g) A request from a proposed or existing not-for-profit corporation for approval of a certificate of incorporation, or amendment thereto, for the purpose of soliciting funds for the eventual establishment and operation of an adult-care facility, shall include:

(1) the certificate of incorporation and amendments thereto;

(2) a description of the governing structure of the proposed organization, including any governing boards and advisory committees;

(3) an applicant profile for each member of the board of directors and the executive director or chief administrative officer, if any;

(4) a description of the type of facility, the anticipated location, capacity, population and services;

(5) evidence of a public need for the proposed facility;

(6) statements of support from local governing bodies, elected officials, community service organizations and others potentially affected by the establishment of the proposed facility;

(7) statement of assets and liabilities, sources and amounts of working capital, loan commitments (including purpose, source, type and amount), anticipated revenues and expenses for the initial and second year;

(8) evidence that actual or potential financial resources for the establishment and operation exist and can be reasonably expected to be successfully raised within a period of not more than five years from the date of the department's approval;

(9) names and locations of each and every facility licensed by the department, the Department of Mental Hygiene pursuant to articles 19, 23 and 31 of the Mental Hygiene Law, or the Department of Health pursuant to article 28 of the Public Health Law, with which the applicant(s) is, or has been within the past 10 years an administrator, employee, incorporator, director, operator, sponsor, principal stockholder or owner; and

(10) signed authorization allowing the commissioner or designees or agents to undertake such investigations as may be necessary to ascertain the validity of statements represented to the department or to ascertain from independent sources the character, competence and standing in the community of the applicant.

(h)(1) The department shall approve or disapprove a certificate of incorporation, or amendment to an existing certificate, by either endorsement or by notice of disapproval. A certificate of incorporation not acted upon within 60 days of the receipt of all required information and documentation shall be deemed to be disapproved.

(2) Any notice of disapproval shall be in writing and shall include the reasons for disapproval.

 

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Section 485.5 - Operating certificates.

 

485.5 Operating certificates. (a) Only a natural person or partnership composed only of natural persons, a not-for-profit corporation, a public corporation, a social services district or other governmental agency may be issued an operating certificate by the department for the purpose of operating an adult care facility. Family-type homes for adults may be issued an operating certificate only if the operator is a natural person or persons. Enriched housing programs may be issued an operating certificate only if the operator is a public agency, public corporation or a not-for-profit corporation.

(b) An operating certificate for an adult care facility shall:

(1) specify the name and location of the facility, the name of the operator, the type of facility and services to be provided, the capacity of the facility, any conditions or limitations and the duration of the certificate;

(2) be nontransferable; and

(3) remain the property of the department.

(c) An operating certificate shall not be issued for a period in excess of four years. The department may issue an operating certificate for a period of less than four years.

(d) No facility shall be operated other than in accord with the terms and conditions of the operating certificate and the regulations of this Title pertaining to the specified type of facility.

(e) No operator shall, for purposes of advertisement, represent the facility by any designation or terminology other than that which is contained on the operating certificate.

(f) No operator shall change or modify a facility, or the services originally approved and stipulated by the operating certificate, without the prior written approval of the department.

(g) An operator shall not, without the prior written approval of the department:

(1) transfer responsibility for operation of the facility to another person or entity; or

(2) change the composition of a partnership.

(h) An operator of a not-for-profit corporation must annually provide to the department in writing the names and addresses of the current members of the board of directors.

(i) No person, corporation, home, institution, hotel or other residential facility or accommodation, other than a facility or agency which possesses a valid operating certificate, as required under the provisions of this Title, the Mental Hygiene Law or Public Health Law, shall hold itself out, advertise, or otherwise in any form or manner represent that it is a facility offering accommodations and services for dependent, aged or disabled adults.

(j) In the event that an operator elects to close a facility and to surrender an operating certificate:

(1) The operator shall notify the appropriate regional office of the department in writing at least 120 days prior to the anticipated date of closure.

(2) Such written notice shall include a proposed plan for closure. The plan shall be subject to department approval and shall include timetables and shall describe the procedures and actions the operator will take to:

(i) notify residents of the closure, including provisions for termination of admission agreements and involuntary discharge;

(ii) assess the needs and preferences of individual residents;

(iii) assist residents in locating and transferring to appropriate alternative settings; and

(iv) maintain compliance with these regulations until all residents have relocated.

(3) The operator shall take no action to close the facility prior to department approval of the plan for closure.

(4) The operator shall implement the approved plan to insure that arrangements for continued care which meets each resident's social, emotional and health needs are effectuated prior to closure.

(5) Failure to notify the department of intent to cease operations, failure to submit an approvable plan, to execute the approved plan, or closure before all residents have been appropriately relocated, may result in the imposition of civil penalties.

(k) In the event of the death of the operator of a private proprietary adult care facility, the department may give approval to a plan submitted by the remaining partners, the operator's spouse or executor for the continued operation of the facility, on a temporary basis, under the outstanding operating certificate. Such plan shall be submitted within 30 days of the death of the operator and shall include notice of intent from the remaining partners, spouse or another applicant to file an application for a new operating certificate and a proposed timetable for application or a plan for closing the facility. The proposed timetable for application shall not exceed 90 days unless the applicant can demonstrate that extension is necessary. Approval under this subdivision to operate the facility shall continue only while the facility is in compliance with regulations.

(l) The operating certificate of any facility may be revoked, suspended, limited or an application for renewal denied upon a determination by the department that the operator has failed to comply with these regulations or the requirements of State or local laws or regulations applicable to the operation of the facility. Parts 486 and 343 of this Title shall apply.

(m) The department may revoke, suspend, modify, or limit an operating certificate of a shelter for adults, residence for adults or adult home upon determining that:

(1) Such action would be in the public interest because:

(i) in the case of revocation, suspension or limitation, such action would conserve resources by restricting the number of beds, or the level of services, or both, to those beds or services which are actually needed, after taking into consideration the total number of beds necessary to meet the public need, and the availability of facilities or services such as ambulatory, home care or other services which may serve as alternatives or substitutes for the services provided by a shelter for adults, residence for adults or adult home; and

(ii) in the case of modification, the level of care and the nature and type of services provided by a facility or required by all or some of the individuals seeking admission to such facility or required by all or some of the residents of such a facility, is inconsistent with the operating certificate of the facility.

(2) Whenever the department proposes to revoke, suspend, modify or limit an operating certificate with respect to any particular facility based upon any of the factors set forth in paragraph (1) of this subdivision, the department must publish in a newspaper of general circulation in the geographic area of the facility at least 30 days prior to making such a determination an announcement that such a determination is under consideration and an address to which interested persons can write to make their views known. The facility may request a public hearing, to be held in the county in which the facility is located, to discuss the department's proposed action. The department must take all public comments into consideration in making its determination.

(3) The department must, upon making a determination described in this subdivision with respect to any facility, notify such facility of the determination at least 30 days in advance of taking the proposed action to revoke, suspend, modify or limit the facility's operating certificate. The department must schedule an administrative hearing to provide the facility with an opportunity to contest the department's determination. In no event will the revocation, suspension, modification or limitation take effect prior to the 30th day after the date of the notice or prior to the effective date specified in the notice or prior to the date of the hearing decision, whichever is later.

(n) The operating certificate of any facility shall be revoked, suspended or limited if an operator is:

(1) unable, by reason of loss of access or loss of right of possession to a facility, to continue to operate as certified;

(2) unable, by reason of catastrophe such as fire or flood, to operate as certified for a period in excess of 60 days.

(o) The operating certificate of any facility shall be revoked, suspended, limited, or an application for an operating certificate denied, if an individual operator, or a member of the board of directors, the executive director or chief administrative officer of a notfor-profit operator is or has been within 10 years:

(1) convicted of a class A, B or C felony;

(2) convicted, in another state or in Federal court, of a crime which would, if committed in New York State, be considered a class A, B or C felony; or

(3) convicted of a felony or class A misdemeanor related to the provision of care for dependent adults or children.

(p) Notwithstanding subdivision (n) of this section, revocation, suspension or limitation of an operating certificate or denial of an application shall not be automatic if the individual holds a valid certificate of relief from disabilities issued in accord with the State Correction Law. Any decision to take action to deny, revoke, suspend or limit a certificate in such instances shall be based on consideration of the following factors:

(1) the bearing the criminal offense or offenses for which the individual was previously convicted will have on his fitness to perform related duties or responsibilities;

(2) the time which has elapsed since the occurrence of the criminal offense;

(3) the age of the individual at the time of the occurrence of the criminal offense;

(4) the seriousness of the offense;

(5) any information produced by the individual to demonstrate rehabilitation and good conduct; and

(6) the interest of the department in protecting the safety and welfare of residents or potential residents of adult care facilities.

(q) Any operating certificate issued by the commissioner to the operator of an adult care facility shall remain the property of the department and upon voluntary or involuntary closure shall be surrendered to the department by personal delivery to a designated representative or by certified or registered mail.

(r) Continuation of facility operation after revocation, suspension or limitation of an operating certificate shall be the basis for imposition of sanctions in accordance with Part 486 of this Title.

 

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Section 485.6 - Application.

 

485.6 Application. (a) Approval to operate an adult care facility shall be granted only to an operator who satisfactorily demonstrates and documents, on forms and in a manner prescribed by the department, that:

(1) The operator:

(i) is of good moral character and standing in the community;

(ii) has the competence to effectively operate the proposed program;

(iii) has developed a facility and program of operation which is in compliance with applicable law and regulations; and

(iv) possesses sufficient financial resources to successfully establish and operate the proposed program.

(2) There exists a public need for the establishment and operation of the proposed facility.

(3) If more than one applicant proposes to establish an adult care facility in the same prescribed geographic area or to serve the same population, approval shall not be based solely on the date of application. The department will compare such factors as demonstrated competence, financial feasibility, the adequacy of the proposed program of care and services and the responsiveness of the application to the public need.

(4) A public hearing may be held by the department at its discretion to solicit comments and recommendations regarding the proposed adult home.

(b) Character and competence. (1) Determination of the adequacy of the applicant's character, competence and standing in the community of the proposed program, shall be made on assessment and verification of the information submitted by the applicant or solicited from other sources by the department, and shall be based upon such factors as financial status, education, experience, past or current performance in the management and operation of adult care facilities or like services to dependent adults; past business associations; letters of personal recommendation; information acquired through credit review, review of related public documents, public comment, or collateral contacts.

(2) If an applicant is, or within the past 10 years has been, an incorporator, director, operator, sponsor or principal stockholder of an adult-care facility, a facility certified by the Department of Mental Hygiene or a residential health care facility certified by the Department of Health, approval will be granted only if the department affirmatively finds that a substantially consistent high level of care is being or was being rendered in each such facility with which the applicant is or was affiliated. There may be a finding that a substantially consistent high level of care has been rendered where there have been violations of applicable rules and regulations that did not threaten to directly affect the health, safety or welfare of the patient or resident and were promptly corrected and not recurrent.

(c) Public need. (1) In determining whether there is a public need for adult home beds, the department must consider the following:

(i) the number of certified and occupied adult home beds per 1,000 population 65 years of age or older in the area to be served, as compared to a statewide average of the number of such beds per 1,000 population;

(ii) the number of persons over 65 years of age or older residing in the area to be served, and the number of persons in receipt of SSI residing in adult homes in the area to be served, as compared to statewide averages for each;

(iii) the percent of certified adult home beds that are occupied in the area to be served, as compared to the statewide average of occupied adult home beds;

(iv) the number of persons awaiting placement into certified adult homes in the area to be served, as determined by the department;

(v) recommendations from the local social services district and the local office for the aging in the area to be served and a recommendation, if available, from the regional health systems agency in the area to be served;

(vi) the availability of alternatives to adult homes, including certified family-type homes for adults and home care services in the area to be served; and

(vii) the number of certified beds per 1,000 population 65 years of age or older in the counties that are contiguous to the county in which the proposed adult home would be located, and the number of persons from contiguous counties who have moved into adult homes in the county in which the proposed adult home would be located and the number of persons who have moved from the county in which the proposed adult home would be located into adult homes in contiguous counties; and

(viii) such other information as the department may deem appropriate.

(2) In determining whether there is a public need for residence for adults beds, the department must consider the following:

(i) the number of certified residence for adult beds per 1,000 population 18 years of age or older in the area to be served, as compared to the statewide average of the number of such beds per 1,000 population;

(ii) the number of certified adult home beds occupied by persons who were discharged from psychiatric institutions per 1,000 population 18 years of age or older in the area to be served, as compared to the statewide average of the number of such beds per 1,000 population;

(iii) the availability of alternatives to residences for adults, including housing certified by the Office of Mental Health in the area to be served;

(iv) the projected need for beds for mentally disabled persons in the area to be served, as estimated by the Office of Mental Health;

(v) recommendations from the social services district and the local governmental unit designated pursuant to section 41.05 of the Mental Hygiene Law in the area to be served; and

(vi) such other information as the department may deem appropriate.

(3) The department may deny an application solely on the basis of a determination of lack of public need in advance of its consideration of any other certification criteria, including, but not limited to, the applicant's character and competence, architectural proposal, financial resources and the financial feasibility of the proposal, without waiving its right to consider such criteria at a later date.

(i) If the department denies an application solely on the basis of lack of public need and the applicant requests an administrative hearing to review that denial, the department, at is discretion, may review the other certification criteria required by this section and include the results as grounds for the denial to be considered at the administrative hearing.

(ii) Notice of any other grounds for the denial shall be mailed to the applicant at least 30 days prior to the date set for the administrative hearing.

(4) Without consideration of public need, the department may approve up to nine additional beds in any adult home or residence for adults in any five-year period.

(5) The following types of situations are excluded from determination of public need:

(i) applications related exclusively to a change of operator;

(ii) applications from the operator of a family-care home established under the Mental Hygiene Law and in operation prior to September 1, 1975;

(iii) application from a social services official to establish a public home;

(iv) construction or renovation designed to replace, on a bed-for-bed basis, an existing adult-care facility or part thereof for which the applicant holds a valid operating certificate. Such replacement shall be limited to the certified capacity of the existing facility and to the prescribed geographic area in which the existing facility was originally certified.

(d) The applicant shall submit part I of an application, which shall include:

(1) the type, name, exact location and proposed capacity of the facility;

(2) unless otherwise excluded by paragraph (c)(5) of this section, documentation of an unmet public need for the proposed facility, including but not limited to:

(i) demographic data on the proposed resident population-at-risk;

(ii) numbers of persons awaiting placement in other like adult care facilities;

(iii) location, capacity and occupancy of existing residential facilities and alternative services in the community;

(3) statements of support from local governing bodies, elected officials, community service organizations and others potentially affected by construction or expansion of the facility;

(4) in the case of a not-for-profit corporation, the certificate of incorporation and amendments thereto;

(5) in the case of a partnership, a copy of the partnership agreement;

(6) a description of the governing structure of the proposed organization, including any governing boards and advisory committees;

(7) an applicant profile for each individual or partner and for the officers of the board of directors and, if applicable, the executive director or chief administrative officer of a not-for-profit corporation;

(8) three current letters of reference from nonrelated individuals qualified to assess the applicant's ability to successfully operate a facility for each individual partner and for the officers of the board of directors of a not-for-profit corporation;

(9) documentation of education, training and experience that have prepared the applicant(s) to operate the proposed facility;

(10) statement of assets and liabilities, sources and amounts of working capital, loan commitments (including purpose, source, type and amount), lease agreements, anticipated revenues and expenses by operating division for the start-up, initial and second year of operation and other evidence that actual financial resources exist or can be successfully acquired to:

(i) successfully establish the proposed facility within the time periods set by the department;

(ii) insure financial viability for the period of the initial operating certificate; and

(iii) operate the facility in compliance with applicable law and regulations;

(11) a statement of real property ownership information, which shall include:

(i) the name and address and a description of the interest held by each of the following persons:

(a) any person who, directly or indirectly, beneficially owns any interest in the land on which the facility is located;

(b) any person who, directly or indirectly, beneficially owns any interest in the building in which the facility is located;

(c) any person who, directly or indirectly, beneficially owns any interest in any mortgage, note, deed or trust or other obligation secured in whole or in part by the land on which, or building in which, the facility is located; and

(d) any person who, directly or indirectly, has any interest as lessor or lessee in any lease or sublease of the land on which, or the building in which, the facility is located;

(ii) if any person named in response to subparagraph (i) of this paragraph is a partnership, then the name and address of each partner;

(iii) if any person named in response to subparagraph (i) of this paragraph is a corporation, other than a corporation whose shares are traded on a national securities exchange or are regularly quoted in an over-the-counter market or which is a commercial bank, savings bank or savings and loan association, then the name and address of each officer, director, stockholder and, if known, each principal stockholder and controlling person of such corporation;

(iv) if any corporation named in response to subparagraph (i) of this paragraph is a corporation whose shares are traded on a national securities exchange or are regularly quoted in an over-the-counter market or which is a commercial bank, savings bank or savings and loan association, then the name and address of the principal executive officers and each director and, if known, each principal stockholder of such corporation;

(v) for the purpose of this paragraph, the term controlling person shall mean any person who by reason of a direct or indirect ownership interest (whether of record or beneficial) has the ability, acting either alone or in concert with others with ownership interests, to direct or cause the direction of the management or policies of said corporation, partnership or other entity. Neither the department nor any employee of the department shall, by reason of his or her official position, be deemed a controlling person of any corporation, partnership or other entity or as a member of a board of directors or trustees of any corporation be deemed to be a controlling person of such corporation, partnership or other entity as a result of such position or his or her official actions in such position. The term principal stockholder shall mean any person who beneficially owns, holds or has the power to vote, 10 percent or more of any class of securities issued by said corporation;

(12) copies of all lease and purchase agreements;

(13) a signed agreement between an enriched housing operator and building manager if the applicant does not own or control the building in which the enriched housing program is to be located. This agreement shall outline the terms by which the enriched housing program will operate within the building and shall contain, but not be limited to, a statement from the building management which:

(i) grants approval for the enriched housing program to operate within the building;

(ii) delineates the building space to be available to the operator;

(iii) describes the services to be provided by the building management; and

(iv) provides for six months' minimum notice of termination of the agreement by either party;

(14) names and locations of each and every facility licensed by the department, the Department of Mental Hygiene pursuant to articles 19, 23 and 31 of the Mental Hygiene Law, the Department of Health pursuant to article 28 of the Public Health Law, or of any facility which, if located in New York State, would require such licensure with which the applicant(s) is, or has been within the past 10 years, an operator, administrator, employee, incorporator, director, sponsor, principal stockholder or owner;

(15) a description of the kinds of services to be provided to the proposed resident population;

(16) a description of the availability of existing:

(i) recreational, social, volunteer, religious and other community support services;

(ii) safety services, such as police and fire protection;

(iii) health, mental health and social support services;

(17) a preliminary staffing plan;

(18) a physical description of the facility, including land, buildings and equipment;

(19) if new construction, renovation or alteration is planned, architectural plans and specifications sufficient to determine financial feasibility and compliance with physical plant requirements;

(20) documentation of compliance with applicable local ordinances;

(21) signed authorization allowing the commissioner, his/her designees or agents, to undertake such investigations as may be necessary to ascertain the validity of statements represented to the department or to ascertain from independent sources the character, competence and standing in the community of the applicant.

(e) The department shall make a determination on a request for part I approval within 90 days of receipt of all required information from the operator and all required recommendations and information from local or State agencies or other sources. The operator shall be given written notice of the decision of the department, and advised of the availability of an administrative review in the event of an unfavorable determination.

(f) Within 90 days of notice of approval for part I, the applicant shall submit, on forms and in a manner prescribed by the department, the following part II information:

(1) The applicant for an adult home or residence for adults shall submit:

(i) a plan for administration, including personnel policies and proce dures, job descriptions, staff orientation and in-service training, planned staffing schedules;

(ii) the job descriptions and, prior to employment, the qualifications for the administrator and, if applicable, case manager and activities director;

(iii) a description of the proposed resident services program, including all services the applicant proposes to provide, admission and discharge policies, admission agreement, a statement of resident rules, and resident record forms including personal allowance records and procedures;

(iv) a description of provision for special services if mentally disabled, physically handicapped persons or persons with other special needs will be admitted to or are in residence in the facility. This plan shall include specifications of special activities and operating practices, adaptation of supervision, personal care and other services, and evidence of cooperation and coordination with other persons and agencies providing services to such residents;

(v) a disaster and emergency plan;

(vi) a description of food services, including the kitchen and dining layout, equipment, the service system and proposed menus;

(vii) a housekeeping plan;

(viii) a maintenance plan; and

(ix) a plan for use of volunteers if volunteers are to be used in the facility.

(2) The applicant for a shelter for adults shall provide the following information to the department:

(i) a plan for administration, including personnel policies and procedures, staffing schedules, admission and discharge policies, and a statement of resident rules;

(ii) a statement of qualifications of the administrator;

(iii) a description of resident services;

(iv) a disaster and emergency plan;

(v) a description of food services, including a kitchen layout, equipment and food service system; and

(vi) a plan for the volunteers, if volunteers are to be used in the facility.

(3) If applicable, complete architectural plans and specifications for any planned construction, renovation or alteration.

(g) Within 90 days of notice of approval of part II of an application which involves no construction or renovation, and at least 30 days prior to anticipated occupancy, the applicant shall request a final facility inspection. Such inspection shall not be conducted until requested modifications or changes have been made; the qualifications of the proposed administrator and, if applicable, case manager and activities director, have been submitted and approved; actual staffing schedules and hiring is complete; and the applicant can provide, at the time of inspection, written documentation of compliance with local codes and ordinances.

(h) For an application which involves construction or renovation, the applicant shall:

(1) within 90 days of the notice of approval of part II, notify the department, in writing, of the date such construction or renovation will start and of the anticipated completion date, which shall be within 18 months of the date of part II approval; and shall submit copies of all applicable construction or renovation contracts;

(2) submit a written report on the progress of the construction or renovation every 90 days;

(3) at least 30 days prior to anticipated occupancy, request a final architectural inspection. Such inspection shall not be conducted until all fire protection systems are installed and operational, and the applicant can provide written documentation of compliance with applicable local codes and ordinances;

(4) at least 30 days prior to anticipated occupancy, but following the architectural inspection, request a final facility inspection. Such inspection shall not be conducted until requested modifications or changes have been made; the qualifications of the proposed administrator and, if applicable, case manager and activities director, have been submitted and approved; actual staffing schedules and hiring is complete; and the applicant can provide, at the time of inspection, written documentation of compliance with local codes and ordinances.

(i) The department will notify the applicant in writing of the need for any required or supplemental information. If the applicant fails, at any point in the application process, to provide the information, or to complete construction or renovation or other required activities within the specified time period, the application may be denied for failure to proceed.

(j) An applicant may submit a written request for a 90-day extension of any of the specified timetables. Extension may be granted upon determination that:

(1) the need for extension is caused by circumstances beyond the applicant's control; and

(2) the need for extension is not caused by the applicant's inability to secure financing.

(k) Upon determination by the department that the proposed operator of a facility has satisfied all conditions specified in the application and that the facility meets and will be operated in compliance with department regulations, the department shall issue the operator an operating certificate.

(l) If during the review of any part of the application, the department determines that the applicant should not be granted approval, the department shall give written notice of disapproval which includes the reasons for disapproval.

(m) An applicant or operator may, in writing and in accordance with Part 343 of this Title, request administrative review of a decision by the department under this section.

(n) Assisted Living Program.

(1) Approval to operate an assisted living program will be granted only to an applicant which satisfactorily demonstrates and documents, on forms and in a manner prescribed by the department, that the applicant is:

(i) a natural person or partnership composed only of natural persons, a not-for-profit corporation, a public corporation, a social services district or other governmental agency which possesses or is eligible, pursuant to this Part, to apply for an adult care facility operating certificate; and

(ii) either an entity which possesses or is eligible, pursuant to Title 10 of the NYCRR, to apply for:

(a) licensure as a home care services agency;

(b) authorization as a long-term home health care program; or

(c) a certificate of approval as a certified home health agency.

(2) The applicant must comply with all requirements of this Part, Part 494, and with applicable sections of Article 36 of the Public Health Law and Title 10 NYCRR.

(3) An applicant proposing to operate an assisted living program must submit an application to the department. The department will transmit a copy of the application and accompanying documents to the Department of Health.

(4) The commissioner, after consultation with the Commissioner of the Department of Health, will establish periods for the submission of assisted living program applications. Such application submission periods shall be based upon the public need for assisted living program beds, as determined by the Department of Health. If such public need is determined to exist, application submission periods shall be established at least annually. All applications received during each such period will be processed and reviewed comparatively in a group.

(5) In addition to the other requirements of this Part, the application must include:

(i) documentation of existing certification or application for certification as either an adult home or enriched housing program and either:

(a) documentation of existing licensure, or application for licensure, as a home care services agency; or

(b) documentation of existing certification or application for certification as a home health agency; or

(c) documentation of approval or application for approval as a longterm home health care program;

(ii) a copy of a proposed contract with a social services district in accordance with the requirements of section 494.4(h) of this Title;

(iii) if the applicant is not a long-term home health care program or certified home health agency, a copy of a proposed contract with a longterm home health care program or certified home health agency for the provision of services;

(iv) a detailed description of the proposed program including:

(a) the proposed number of residents to be served by the program;

(b) the location of the program;

(c) the target population to be served by the program;

(d) the budget for the program;

(e) the staffing plans for the program; and

(f) the operating standards and services to be provided by the program; and

(v) the anticipated date of operation for the program, or the anticipated number of days from issuance of department approval to program operation.

(6) In addition to the standards contained in other subdivisions of this section, applications to operate an assisted living program will be evaluated on the following criteria:

(i) the appropriateness of the proposed target population;

(ii) the extent to which the program will admit and retain individuals whose care is paid for at public expense;

(iii) the relation of the proposed program to the target population;

(iv) the proposed number of residents;

(v) the geographic location of the proposed program;

(vi) the geographic distribution of existing and proposed programs within a health systems agency region;

(vii) the public need for the assisted living program and the particular type of adult care facility and the particular type of home care program that the applicant intends to establish;

(viii) the extent to which the proposed program will increase the supply of existing adult home or enriched housing beds;

(ix) the character, competence and standing in the community of the applicant;

(x) the financial responsibility of the applicant;

(xi) the financial feasibility of the program;

(xii) the anticipated construction and operating costs;

(xiii) the anticipated date of operation of the program;

(xiv) a description of existing contracts, referral, or other service relationships with the social services districts;

(xv) a description of existing contracts, referral, or other service relationships with other providers or services in the community to serve the residents of the program; and

(xvi) the buildings, equipment, staff, standards of care and records of the adult care facility to be employed in the program must comply with applicable federal, State and local laws, rules and regulations.

(7) Applications will be rated in accordance with the criteria in paragraph (6) of this subdivision and other requirements of this Part, with first consideration given to applications which:

(i) commit to the admission and retention of individuals eligible for or in receipt of Supplemental Security Income, Home Relief or Medical Assistance;

(ii) will increase the supply of existing adult home or enriched housing beds; and

(iii) demonstrate the ability to commence service provision most quickly.

(8) An application for an assisted living program will not be approved unless the commissioner has determined:

(i) that there is a public need for the assisted living program and that the commissioner has received written notice of approval of public need for the assisted living program from the Commissioner of the Department of Health;

(ii) that the Commissioner of the Department of Health has provided written notice of the Department of Health's approval of:

(a) the applicant as either a licensed home care service agency, certified home health agency or long-term home health care program; and

(b) where applicable, the public health council; and

(iii) that the assisted living program will be operated in compliance with applicable federal, State and local laws, rules and regulations.

(9) The commissioner or commissioner's designee must notify the applicant in writing of whether the application to establish and operate an assisted living program has been approved or disapproved, including, in the case of disapproval, the reason for disapproval. The written approval of the commissioner or commissioner's designee constitutes authorization to operate an assisted living program.

(10) An applicant for approval to operate an assisted living program who fails, neglects or refuses to submit documentation or information requested by the department, within 30 days or such longer period as may be specified by the department, will be deemed to have abandoned or withdrawn the application, and will receive written notice of the same from the department.

(11) An applicant for approval to operate an assisted living program who fails to submit complete or sufficient information or documentation within 30 days or such longer period as may be specified by the department will receive written notification that the application has been disapproved.

(12) Notwithstanding the provisions of subdivisions (h)(1) and (i) of this section, the failure, neglect or refusal of an applicant to complete construction or renovation and commence operation of an assisted living program within 18 months of issuance of approval of the application by the department constitutes an abandonment of the application and any such approval is deemed cancelled, withdrawn and annulled, unless an extension has been granted pursuant to paragraph (13) of this subdivision. The department will provide written notice of any such cancellation, withdrawal or annulment to the applicant.

(13) An applicant may submit a written request for a 90-day extension(s) of the timetable specified in paragraph (12) of this subdivision. Extension(s) may be granted upon a determination by the Department that:

(i) the need for extension is caused by circumstances beyond the applicant's control; and

(ii) the need for extension is not caused by the applicant's inability to secure financing.

 

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Section 485.7 - Renewal.

 

485.7 Renewal. (a) The operator of a facility shall be required to submit an application for renewal of an operating certificate, on forms and in the manner prescribed by the department, no more than 90 nor less than 45 days prior to expiration of said certificate. Such application shall include appropriate financial data, any new contracts, leases or rental agreements and documentation that the facility is in compliance with applicable regulations, codes and ordinances.

(b) Renewal shall be dependent upon demonstration of the operator's continuing ability to operate the facility in compliance with department regulations.

(c) If application is made for renewal by an operator of a facility for which the department has issued a statement of charges, or by an operator who is or has been within the period of the prior operating certificate an incorporator, director, sponsor, principal stockholder or operator of any other adult-care facility, community residence or residential health-care facility for which enforcement action has been initiated for failure to meet the standards of that department or agency, the department may deny or withhold renewal until the operator submits documentation which affirmatively demonstrates that the operator is competent to continue operation of the facility for which renewal is sought.

(d) Failure to submit an application for renewal of an operating certificate within the time limits established by subdivision (a) of this section may constitute grounds for the imposition of civil penalties or for denial of that or any subsequent application for renewal.

(e) Failure to submit an application for renewal will be considered surrender of an operating certificate. The operator must submit a plan for closure as required by section 485.5(j) of this Part and must remain responsible for operating the facility in compliance with applicable department regulations until closure or transfer of all residents is accomplished.

(f) If the department determines that an application for renewal of an operating certificate should not be approved, or that an operating certificate should be limited or modified, the department must give notice to the operator. The operator may, in writing and in accordance with Part 343 of this Title, request administrative review of a decision by the department not to renew his or her operating certificate. The department must schedule an administrative hearing to provide an operator, whose certificate is to be limited or modified, with an opportunity to contest the department's determination. In no event will the limitation or modification take effect prior to the 30th day after the date of the notice or prior to the effective date specified in the notice or prior to the date of the hearing decision, whichever is later.

 

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Section 485.8 - Application for family-type homes.

 

485.8 Application for family-type homes. Application to establish and operate a family-type home for adults shall be submitted to the commissioner of the local social services district in which the proposed facility is located, and shall be in accordance with the requirements of section 489.4 of this Title.

 

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Section 485.9 - Receivership.

 

485.9 Receivership. (a) Receiver appointed upon application of the commissioner.

(1) When the department revokes or temporarily suspends the operating certificate of a facility and the commissioner determines that appointment of a receiver is necessary to protect the health, safety and welfare of the residents of a facility, the commissioner may seek the appointment of a receiver by applying to the Supreme Court in the county where the facility is situated for an order directing the operators, owners and prime lessors, if any, of the premises to show cause why the commissioner, or at the discretion of the commissioner his designee, should not be appointed receiver to take charge of the facility.

(2) The commissioner shall not be required to seek the appointment of a receiver or to assume the responsibilities of a receiver directly or indirectly through his designee; nor shall any court be authorized to compel the commissioner to assume the responsibilities of a receiver or to appoint a designee to assume such responsibilities.

(3) The department may, if it deems appropriate, grant an operating certificate to any facility operating or scheduled to operate under a receiver. The duration of the operating certificate shall not exceed the duration of the receivership.

(4) Any receiver appointed upon application of the commissioner shall have all of the powers and duties of a receiver appointed in an action to foreclose a mortgage on real property, together with the following additional powers and duties:

(i) The receiver shall, with all reasonable speed but, in any case, within six months after the date on which the receivership was ordered, unless otherwise extended by the court, provide for the orderly transfer of all residents in the facility to other facilities or make other provisions for their continued safety and care.

(ii) The receiver shall operate the facility in compliance with regulations of the department.

(iii) The receiver, with the approval of the commissioner, shall incur expenses as may be necessary to operate the facility. He shall collect incoming payments from all sources and apply them to the costs incurred in the performance of his functions as receiver. The receiver shall honor all existing leases, mortgages and chattel mortgages that have previously been undertaken as obligations of the owners or operators of the facility. No security interest in any real or personal property comprising the facility or contained within the facility, or in any fixture of the facility, shall be impaired or diminished by the receiver. The receiver shall compensate the owners of any goods held in inventory for those goods which he uses or causes to be used by reimbursing the costs of such goods, except that no such compensation shall be made for any such goods for which owners have already been reimbursed.

(iv) The receiver shall not be required to file any bond.

(5) Notwithstanding paragraph (4) of this subdivision and, except in the case where the receiver is assuming an existing bona fide arm'slength lease, the commissioner shall determine a reasonable monthly rental for the facility, based on consideration of all appropriate factors, including the condition of such facility. The rent, as determined by the commissioner, shall be paid by the receiver to the owners or prime lessors as may be directed by the court for each month that the receivership remains in effect. In the event that the amount established by the commissioner is less than the currently valid lease, the obligation of the operator shall not be altered or diminished.

(6) The receiver:

(i) shall be intitled to a fee and reimbursement for expenses as determined by the commissioner, based upon consideration of all appropriate factors relating to the operation of the facility, to be paid as a charge against the operator, not to exceed the fees, commissions and necessary expenses authorized to be paid to receivers in an action to foreclose a mortgage;

(ii) shall be liable only in his official capacity for injury to person and property by reason of conditions of the facility in a case where an owner or operator would have been liable; he shall not have any liability in his personal capacity, except for gross negligence and intentional acts;

(iii) may, subject to approval by the commissioner, ratify any collective bargaining agreement in effect between the operator and the employees of a facility, or suspend such collective bargaining agreement; provided, however, that the receiver, in his official capacity, remains liable for payment of wages and salaries at the rates and levels in effect at the time of his appointment; and

(iv) shall notify the commissioner of any lien or conveyance made in contemplation of receivership with an intent to remove an asset of the facility from the jurisdiction and use of the receiver, or to hinder or delay the receiver in the execution of his duties and responsibilities as receiver.

(7) (i) Any person who is served a copy of an order of the court appointing the receiver shall, upon being notified of the name and address of the receiver, make all payments for goods supplied by the facility, or services rendered by the facility, to the receiver. A receipt shall be given for each such payment, and copies of all such receipts shall be kept on file by the receiver. The amount so received shall be deposited by the receiver in a special account which shall also be used for all disbursements made by the receiver.

(ii) Any person who refuses or omits to make such payment after such service and notice may be sued therefor by the receiver. Such person shall not in such suit dispute the authority of the receiver to incur or order such expenses, or the right of the receiver for any such payments made to him. The receipt of the receiver for any sum paid to him shall, in all suits and proceedings and for every purpose, be as effectual in favor of any person holding the same as actual payment who would have been entitled to receive the sum so paid. No resident shall be discharged, nor shall any contract of rights be forfeited or impaired, nor any forfeiture or liability be incurred, by reason of any omission to pay any owner, contractor or other person any sum so paid to the receiver.

(8) All transactions involving the receivership shall be on the accrual basis of accounting.

(9) Obligations of the operators, owners or prime lessors.

(i) The operators, owners or prime lessors shall not be relieved of any civil or criminal liability or obligation incurred, or any duty imposed by law, by reason of acts or omissions of such persons prior to the appointment of any receiver. During the period a facility is operated by a receiver, the operator, owner or prime lessor, if any, shall continue to be liable for all obligations for the payment of taxes or other operating and maintenance expenses of the facility, and the owner or other appropriate person shall continue to be liable for the payment of mortgages or liens.

(ii) Expenses incurred by a receiver to meet the operating and maintenance expenses of the facility and the basic needs of the residents of the facility shall be deemed the obligations of the operator, and not the obligations of the receiver or the State.

(iii) The receiver shall not be responsible for any obligations incurred by the owner, operator or prime lessor, if any, prior to the appointment of the receiver.

(iv) The receiver shall be entitled to use for operating and maintenance expenses, and for the basic needs of the residents of the facility, a portion of the revenues due the operator during the month in which the receiver is appointed. This portion shall be established on the basis of the amounts of the operating and maintenance expenses for such month. Such amounts shall be prorated by dividing the number of days of the receivership appointment by the number of days in the month.

(v) Any sums determined to be due and owing by the receiver to the owner, operator or prime lessor shall be offset by any charges determined to be the obligations of the owner, operator or prime lessor.

(10) The court shall terminate the receivership only under any of the following circumstances:

(i) six months after the date on which it was ordered, except that the court may extend such period for good cause shown;

(ii) when the department grants an operator a new operating certificate; or

(iii) at such time as all of the residents in the facility have been provided alternative modes of care, either in another facility or otherwise.

(11) At the time of termination of the receivership, the receiver shall render a full and complete accounting to the court and shall dispose of any profit or surplus as instructed by the court.

(12) Payments to receivers appointed upon application of the commissioner.

(i) The commissioner is authorized to make payments to a receiver only if the receiver demonstrates to the satisfaction of the commissioner that the facility's funds which are available are insufficient to meet operating and maintenance expenses of the facility and the basic needs of the residents of the facility.

(ii) The operator shall be liable for all monies made available to the receiver pursuant to this paragraph.

(iii) Any payments made by the commissioner to a receiver shall be made without any obligation on the part of the social services district, in which the receiver-operated facility is located, to reimburse the department for any such payments.

(b) Court-appointed receiver without application of the commissioner.

(1) In the event of a transfer of possession of the premises of a facility from an approved operator to a court-appointed receiver, the department may authorize such court-appointed receiver to continue to operate the facility for a temporary period pending the filing and review of an application to the department by the receiver or by another person for an operating certificate.

(2) Such temporary authorization shall be granted and continued only if the court-appointed receiver agrees to and complies with the terms and conditions set by the department. Such terms and conditions shall include:

(i) operation of the facility in compliance with the regulations of the department;

(ii) a waiver by the receiver of any assessment of fees against the department, the commissioner, and the State;

(iii) submission of a statement of intention to apply or not to apply for certification as operator of the facility within 15 days after transfer of possession to the receiver;

(iv) if the receiver indicates an intention to apply for an operating certificate, submission of an application for an operating certificate within 90 days after the transfer of possession to the receiver, unless the time for such filing is extended by the department;

(v) if the receiver indicates no intention to apply for an operating certificate, agreement to cooperate fully with potential operators and the department in the orderly transfer of the facility to a certified operator or to provide for the orderly transfer of all residents in the facility to other facilities or make other provisions for their continued safety and care.

(3) The commissioner may make application to appear and advise the court of any objections he may have to the transfer of possession from the approved operator to any other persons, including a receiver, or of any objections he may have to continuing a receiver or any other person in possession.

 

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Section 485.10 - Contracts.

 

485.10 Contracts. (a) In the event that an operator contracts with a separate independent entity to perform any of the facility operations, the following conditions shall apply:

(1) The contractor shall demonstrate to the satisfaction of the operator that the contractor is:

(i) financially stable; and

(ii) able, by reason of past performance or like qualification, to perform the duties delegated by the operator.

(2) If required, the contractor shall be certified by any appropriate local or State agency or unit of government, and shall comply with said regulations. Documentation of such certification and compliance shall be provided to the operator and shall be available for inspection by the department staff or designees.

(3) The operator shall remain solely responsible for compliance with department regulations and the operation of the facility in compliance with all applicable laws and regulations.

(4) The contract shall:

(i) be in writing, dated and signed by all parties;

(ii) include each party's responsibilities and functions;

(iii) include all financial arrangements and charges;

(iv) specify those powers and duties delegated to the contractor by the operator;

(v) specify that the powers and duties not delegated to the contractor remain with the operator;

(vi) stipulate that the operator retains the authority to discharge any person working in the facility;

(vii) state the terms by which the contractor may hire and discharge persons working in the facility;

(viii) require the contractor to comply with all applicable provisions of law and regulations;

(ix) require the contractor to provide all information required by the department, and to cooperate with the department in carrying out inspection and enforcement activities;

(x) stipulate that the operator, notwithstanding any other provisions of the contract, remains responsible for operation of the facility in compliance with applicable law and regulations; and

(xi) specify the terms of the contract and the provisions governing renewal and termination prior to expiration.

(5) A copy of each contract shall be retained on file by the operator and shall be available for inspection.

 

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Section 485.11 - Records and reports.

 

485.11 Records and reports. (a) The operator shall collect and maintain such information, records or reports as determined by the department to be necessary.

(b) Operators of facilities subject to the inspection and supervision of the department shall supply and provide access to such information and records in such form and at such times as the department shall determine.

(c) No substitution for department forms may be made without prior written approval of the department.

(d) The department may request from any other State department or State or local agency, including the Department of Mental Hygiene, the Division for Youth and the Board of Social Welfare, and such other department or agency shall furnish such information as the department may require.

(e) Other State departments or State agencies may request such information as such department or agency may require for the proper discharge of its duties. Such departments and agencies shall safeguard the confidentiality of such information, records and reports in the same manner as the department.

(f) Confidentiality. (1) Officers, employees or designees of the department shall maintain the confidentiality of facts and information obtained as the result of submittal of any annual financial report, any inspection or investigation of a facility.

(2) Operators shall maintain the confidentiality of facts and information obtained and retained as part of individual resident records.

(3) No facts and information retained as part of individual resident records may be released to anyone other than the resident, the operator, his employees or agents, or an employee or designee of the department, without the written permission of the resident.

(g) Confidentiality of HIV and AIDS related information.

(1) An operator or employee must not require that an applicant for employment, prospective resident, resident, volunteer or employee undergo an HIV-related test.

(2) An operator or employee must not require an applicant for employment, prospective resident, resident, volunteer or employee to disclose confidential HIV related information.

(3) Confidential HIV related information means any information, in the possession of a person who provides one or more health or social services or who obtains the information pursuant to a release of confidential HIV related information, concerning whether an individual has been the subject of an HIV related test, or has HIV infection, HIV related illness or AIDS, or information which identifies or reasonably could identify an individual as having one or more of such conditions, including information pertaining to such individual's contacts.

(4) AIDS means acquired immune deficiency syndrome, as may be defined from time to time by the centers for disease control of the United States public health service.

(5) HIV infection means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.

(6) HIV related illness means any illness that may result from or may be associated with HIV infection.

(7) HIV related test means any laboratory test or series of tests for any virus, antibody, antigen or etiologic agent whatsoever thought to cause or to indicate the presence of AIDS.

(8) There must be no discrimination based on handicap, as that term is defined in section 303.7 of this Part, in determining admission, retention or employability; nor shall there be any adverse action on that basis against an applicant for employment, prospective resident, resident, employee or volunteer.

(9) Confidential HIV related information may be disclosed by an operator or employee only in accordance with the procedures set forth in this Part and only when appropriate services cannot be provided without disclosure.

(10) Except as specified in paragraphs (14) and (15) of this subdivision, an operator, employee or volunteer who obtains confidential HIV related information concerning any applicant for employment, prospective resident, resident, employee or volunteer must not disclose that information without specific written authorization to release that information from:

(i) the protected individual; or

(ii) a person authorized by law to consent to health care for the individual.

(11) The authorization to release confidential HIV related information must:

(i) be dated;

(ii) specify to whom disclosure is authorized;

(iii) specify the purpose for the disclosure;

(iv) specify the time period during which the release is effective;

(v) specify that the information to be disclosed is confidential HIV information; and

(vi) be signed by the protected individual or, if the individual lacks capacity to consent, a person authorized pursuant to law to consent to health care for the individual.

(12) A general authorization for the release of medical or other information cannot be used as an authorization to release confidential HIV related information.

(13) Whenever an operator or employee discloses confidential HIV information, that person must:

(i) enter a dated and signed notation of disclosure of HIV information in the protected individual's record; and

(ii) within 10 days of the date of disclosure if the disclosure is oral, and simultaneously when disclosure is written, give a written statement to the person to whom the HIV information is disclosed which states:

"This information has been disclosed to you from confidential records which are protected by State law. State law prohibits you from making any further disclosure of this information without the specific written consent of the person to whom it pertains, or as otherwise permitted by law. Any unauthorized further disclosure in violation of State law may result in a fine or jail sentence or both. A general authorization for the release of medical or other information is not sufficient authorization for further disclosure."

(14) Notwithstanding the requirements of this section, an operator may disclose confidential HIV related information to a health care provider or health facility when knowledge of the confidential HIV related information is necessary to provide appropriate care or treatment to the protected individual. No authorization for release of confidential HIV related information is required for such disclosure. However, the operator must follow the disclosure procedure specified in paragraph (13) of this subdivision.

(15) Notwithstanding the requirements of this section, an operator is obligated to release confidential HIV related information to authorized employees or agents of the department or social services districts when such information is reasonably necessary to supervise, monitor, or administer the facility and such employee or agent of the department or social services districts would, in the ordinary course of business have access to such records. Authorized employees and agents of the department or social services districts may obtain confidential HIV related information under this paragraph even though the adult care facility does not obtain the release specified in paragraph (10) of this subdivision. In addition, when information is released under this section by an adult care facility, the facility is not required to give the statement specified in paragraph (13) of this section to the employees or agents of the department or social services district nor is the facility required to indicate in any resident's record that the information was released.

 

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Section 485.12 - Personal allowances for Supplemental Security Income or Home

 

485.12 Personal allowances for Supplemental Security Income or Home Relief recipients. (a) Each resident of an adult care facility who is receiving Supplemental Security Income or Home Relief benefits and who is entitled to a monthly personal allowance by Social Services Law, section 131-o, or section 352.8(c) of this Title, shall be afforded the following protections:

(1) Each resident must receive a personal allowance equal to the amount stipulated in subdivision (b) of this section or section 352.8(c) of this Title.

(2) Any waiver of the right of an SSI or HR recipient to a personal allowance shall be void.

(3) The personal allowance may be used at the discretion of the resident for personal needs not provided by the operator pursuant to the law and regulations.

(4) The operator shall not demand, require or contract for payment of any part of the personal allowance or any income disregarded by the Social Security Administration in determining eligibility for Supplemental Security Income, in satisfaction of the basic facility rate for supplies and services or for any services or supplies, unless the resident elects to purchase such services or supplies and the department has determined that such services or supplies are not otherwise required to be provided by the operator pursuant to law, regulation or agreement, and the charges for such services or supplies are reasonable.

(5) Any individual who has not received or been able to control his/her personal allowance to the extent and in the manner required by section 131-o of the Social Services Law may maintain an action in his own behalf for recovery of any such funds and, upon a showing that the funds were intentionally withheld or misappropriated to other than the intended use, for recovery of additional punitive damages in an amount equal to twice the amount misappropriated or withheld.

(6) The department shall investigate any suspected misappropriation or withholding of personal allowance funds, and may maintain an action on behalf of any individual or group of individuals to recover any funds so misappropriated or withheld, including any punitive damages.

(7) In any case where the operator is suspected of misappropriating a resident's personal allowance, the department or its designee shall investigate and, where appropriate, take the steps necessary to insure recovery of resident funds, including referral for prosecution. Funds recovered in this manner shall be given to the respective resident or credited to his/her personal allowance account at the earliest possible date.

(8) Any person who intentionally withholds, commingles, borrows or pledges the personal allowance of an SSI recipient, or who demands, beneficially receives or contracts for payment of all or any part of the personal allowance in satisfaction of the facility rate for supplies and services, shall be guilty of a class A misdemeanor.

(b) Effective January 1, 1987, each resident receiving Supplemental Security Income benefits in an adult care facility as defined in Social Services Law, section 209, or Home Relief benefits as set forth in section 352.8(c) of this Title, is entitled to a monthly personal allowance out of such benefits in the following minimum amounts:

(1) In adult care facilities certified for level II Supplemental Security Income payments:

(i) Residents receiving total Supplemental Security Income benefits of $90 per month or less must have personal allowances consisting of their total Supplemental Security Income benefit amount in addition to any income disregarded by the Social Security Administration in determining the recipient's eligibility for Supplemental Security Income, except third-party payments from non-public sources treated as in-kind income.

(ii) Residents receiving Supplemental Security Income benefits greater than $90 per month, and having no other income, must have personal allowances of at least $90 per month.

(iii) Residents receiving Supplemental Security Income benefits greater than $90 per month, with other sources of income, must have personal allowances of at least $90 per month in addition to any income disregarded by the Social Security Administration, except third-party payments from non-public sources treated as in-kind income.

(iv) Residents receiving Supplemental Security Income who were "grandparented" from the Aid to the Aged, Blind and Disabled program (AABD), whose benefit amounts are above the standard Supplemental Security Income benefit levels, must have personal allowances of at least $90 per month in addition to any income disregarded by the Social Security Administration as described in subparagraph (i) of this paragraph.

(2) In adult care facilities certified for level I Supplemental Security Income payments:

(i) Residents receiving total Supplemental Security Income benefits less than $80 per month must have personal allowances consisting of their total Supplemental Security Income benefit amount in addition to any income disregarded by the Social Security Administration as described in subparagraph (1)(i) of this subdivision.

(ii) Residents receiving Supplemental Security Income benefits greater than $80 per month, and having no other income, must have personal allowances of at least $80 per month.

(iii) Residents receiving Supplemental Security Income benefits greater than $80 per month, with other sources of income, must have personal allowances of at least $80 per month in addition to any income disregarded by the Social Security Administration as described in subparagraph (1)(i) of this subdivision.

(iv) Residents who are "grandparented" from the Aid to the Aged, Blind and Disabled program (AABD), whose benefit amounts are above the standard Supplemental Security Income benefit levels, must have personal allowances of at least $80 per month in addition to any income disregarded by the Social Security Administration as described in subparagraph (1)(i) of this subdivision.

(3) In any month in which a resident receives a prorated SSI or HR benefit, the resident shall also be entitled to an identically prorated personal allowance.

 

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Section 485.13 - Certified long-term care ombudsmen.

 

485.13 Certified long-term care ombudsmen.

(a) (1) An operator must not restrict or prohibit the access to the residents of the facility nor interfere with the performance of the official duties of a duly authorized ombudsman certified by the State Office for the Aging.

(2) Such access shall be permitted for at least 10 hours between 9 a.m. and 8 p.m. daily.

(3) In addition to the access permitted under paragraph (2) of this subdivision, an operator shall not restrict access at other times if the ombudsman is seeking to investigate a complaint or is responding to a specific request of a resident.

(4) The operator shall not interfere with the privacy and confidentiality of the visits between the resident and the ombudsman.

(5) An operator may not retaliate nor take reprisals against any resident, employee or other person for having filed a complaint with or having provided information to a duly authorized ombudsman.

(b) (1) The operator shall not restrict or prohibit access to resident records maintained by the operator, provided that:

(i) the person seeking access has been specially designated as a records access ombudsman by the director of the State Office for the Aging; and

(ii) the resident or, where appropriate, a committee for an incompetent, has given express written consent.

(2) Access to records shall be permitted between 9 a.m. and 5 p.m., Monday through Friday.

(3) The operator shall designate a member or members of staff who shall be responsible for providing access to such records and, where necessary, interpretation of such records.

(4) Records access ombudsmen shall have the right to photocopy onsite such records; however, records shall not be removed from the facility by the ombudsman.

(5) The operator may charge a reasonable fee, not to exceed $1 per page, for photocopying.

(6) Disclosure to a duly designated records access ombudsman, pursuant to the express written consent of a resident, shall not, based solely on such disclosure, give rise to any claim as to a breach of confidentiality by the operator.

(7) Nothing in this section shall be construed to permit access to a physician's records, clergy records, or to other community service agency records, which are not maintained by the operator as part of the resident's records.

(c) The operator shall require anyone seeking access to the facility or to resident records as an authorized ombudsman to show identification and to sign a visitor's register or like record.

 

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Section 485.14 - Access to adult-care facilities.

 

485.14 Access to adult-care facilities. (a) An operator shall not restrict or prohibit access to the facility by:

(1) family members, guardians, friends of an individual resident and legal representatives, legal counsels and case managers;

(2) individuals representing community organizations or service agencies who will provide, free of charge, a service or educational program to residents; or

(3) an employee or representative of any public or private not-forprofit corporation, community organization or association whose primary purposes for visiting include assisting residents in resolving problems and complaints concerning their care and treatment, and in securing adequate services to meet their needs.

The operator shall make available a common area of the facility for such visits.

(b) Such access shall be permitted for at least 10 hours between 9 a.m. and 8 p.m. daily.

(c) The operator may require anyone seeking access to the facility to sign a visitor's register or like record.

(d) The operator shall not interfere with confidential visits with residents and persons assured access under this section.

(e) Persons assured access under this section shall not enter the living area of any resident without identifying themselves to the resident, stating the purpose of the visit, and receiving the permission of the resident and the resident's roommate to enter the living area.

(f) A resident shall have the right to terminate or deny any visit from persons assured access under this section.

(g) Notwithstanding subdivision (a) of this section, the operator may restrict or prohibit access to the facility or interfere with confidential visits with residents by individuals who the operator has reasonable cause to believe would directly endanger the safety of such residents.

(h) If the operator denies access for reasonable cause, the operator shall:

(1) record a written statement of the incident, including the reasons for denial, the date and time and identification of the individuals involved;

(2) maintain the statement at the facility; and

(3) make such statement available upon request to the resident involved and persons denied access.

(i) If the operator of a facility denies access, the person denied access may bring an action in Supreme Court in the county in which the facility is located for an order granting such person access to such facility. If the court finds that such denial was made in bad faith, the operator of the facility shall be liable for all costs, including reasonable attorney's fees, and the court may, in its discretion, assess a civil penalty not to exceed $50 per day for each day such access was denied.

(j) Public or private not-for-profit corporations, community organizations or associations who wish to have their employees or representatives assured access to facilities, under paragraph (a)(3) of this section, shall register with the department. Corporate organizations shall file a copy of the certificate of incorporation; others shall file agency bylaws or a written statement of purposes, including a description of the services or assistance the organization intends to make available to residents.

(k) The department shall maintain a registry of such organizations and shall provide periodic notice of changes to operators.

 

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Section 485.15 - Development grants for enriched housing programs.

 

485.15 Development grants for enriched housing programs. (a) The department may, to the extent funds are available for such purpose, award development grants to, and contract with, approved enriched housing programs.

(b) Grants shall be made for the purpose of defraying reasonable and necessary start-up expenses and reducing initial operating deficits incurred in the first 12 months of a program's operations resulting from initial low occupancy rates.

(1) Use of such grant funds may include, but shall not be limited to:

(i) administrative expenses, including staff salaries, office overhead and equipment;

(ii) rent prior to occupancy;

(iii) security deposits;

(iv) minor renovations of existing structures;

(v) furnishings and household equipment;

(vi) moving expenses of residents; and

(vii) reasonable anticipated operating deficits resulting from low initial occupancy rates.

(2) Awards for start-up expenses and initial operating deficits will be based upon:

(i) the quality of the proposed program;

(ii) demonstrated financial need;

(iii) geographic distribution of enriched housing programs; and

(iv) the availability of and demand for long-term care services in the geographic area to be served by the proposed program.

(c) Grants may be awarded for the purpose of moderate renovations or modifications of existing structures when determined to be necessary by the commissioner. Awards made for moderate renovation or modification will be based on:

(1) finding that, without such renovation or modifications, a geographic area may be underserved because of the lack of available or suitable existing structures;

(2) demonstrated financial need;

(3) confirmation that, when renovations or modifications are completed, the building will meet all applicable building and fire safety codes and enriched housing program site requirements; and

(4) documentation of a legally binding agreement for the use of the building by enriched housing programs for a minimum of seven years.

(d) Requests for development grants under either subdivision (b) or

(c) of this section shall be made using forms required by the department, and will be received and reviewed with the application for certification. Determination of awards will be made at such time that a final determination is made with respect to approving the establishment of, or granting an operating certificate for, an enriched housing program.

 

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Section 485.16 - Services for nonresidents of adult-care facilities.

 

485.16 Services for nonresidents of adult-care facilities. (a) No operator of a certified adult home, residence for adults or enriched housing program can provide services to eligible nonresident participants of such facilities as defined in section 485.2 of this Part without the prior written approval of the department.

(b) An operator of a certified adult home, residence for adults or enriched housing program must apply for department approval to provide services to nonresidents of such facilities. Applications must be on forms approved by the department. Such application must include a written description of the proposed nonresident service program including, but not limited to:

(1) a description of the services to be provided to nonresidents and a description of how such services would be coordinated with the services provided to permanent residents;

(2) a description of the physical space to be used including plans for how such space is to be used and coordinated with the space used by the permanent residents;

(3) the number of staff engaged in delivering services to nonresidents, including duties, hours to be worked and staff qualifications and how such staff would be coordinated with existing staff;

(4) the number of nonresidents to be served during the day, evening and night;

(5) a description of how the participant's community-based plan of care, if any, will be used and coordinated with the nonresident services program;

(6) a description of the information and referral services to be provided to participants and the participants' caregivers;

(7) the transportation services, if any, which are available to participants;

(8) a description of fees or charges, if any;

(9) a budget for the services to be provided;

(10) proposed forms, including any agreements which nonresidents must sign; and

(11) plans to insure that participants, staff and volunteers are included in the provisions for disaster and emergency planning contained in sections 487.12 and 488.12 of this Title.

(c) The department will issue a letter of authorization to the operator of the adult home, residence for adults or enriched housing program who has been approved to establish and operate a program of services for nonresidents of such facilities. Approval will be granted only when the department finds that a substantially consistent high level of care is being provided to residents of the facility or program.

(d) The commissioner or his/her designee will administer a system of supervision, inspection and enforcement for approved services for nonresidents in adult homes, residences for adults and enriched housing programs which assures compliance with department regulations and the maintenance of standards which would assure that appropriate care is provided to participants.

(e) In accordance with Part 486 of this Title, the department may rescind authorization for an operator of an adult home, residence for adults or enriched housing program to provide services to nonresidents.

(f) Nonresidents of adult homes, residences for adults or enriched housing programs who apply to receive services in such facilities must be admitted in compliance with the admission standards specified in department regulations for the particular facility.

(g) Services provided to nonresidents of adult homes, residences for adults or enriched housing programs must be provided in compliance with the department's regulations concerning the delivery of services to residents of such facilities.

 

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Section 485.17 - Long-term home health care program; AIDS home care program.

 

485.17 Long-term home health care program; AIDS home care program. (a) Services provided under the long-term home health care program (LTHHCP) or AIDS home care program (AHCP), as defined in section 505.21 of this Title, may be provided to a resident of an adult care facility, except a shelter for adults, who:

(1) has been deemed medically eligible by a physician for placement in a residential health care facility but who can remain in an adult care facility if he/she receives LTHHCP or AHCP services;

(2) as the result of an assessment authorized by a social services district has been determined appropriate to receive LTHHCP or AHCP services, provided the assessment is conducted prior to the provision of such services and in compliance with the provisions of section 505.21 of this Title; and

(3) meets the admission and continued stay criteria for the type of adult care facility in which the person is residing.

(b) LTHHCP or AHCP services may not duplicate or replace those services which the adult-care facility operator is required by law or regulation to provide.

(c) A representative of the adult-care facility must be consulted during the home assessment process in accordance with the provisions of section 505.21 of this Title.

(d) An operator of an adult-care facility must coordinate service delivery and case management services with the LTHHCP or AHCP program. The operator is solely responsible for managing and providing those services which the facility is required by law or regulation to provide.

(e) The commissioner may specify additional forms and reports regarding the provision of LTHHCP or AHCP services to residents of adult-care facilities for the purpose of preparing reports to the Governor and the Legislature.

 

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Part 486 - INSPECTION AND ENFORCEMENT

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Effective Date: 
Wednesday, November 21, 2018
Statutory Authority: 
Social Services Law, Sections 20, 34, 131-o, 460-a-460-g, 461, 461-a, 461-h

Section 486.1 - General provisions

Section 486.1 General provisions. (a) The department shall inspect and maintain supervision over all public and private adult care facilities as defined in Part 485 of this Title, excepting State institutions for the education and support of the blind, the deaf and the dumb, facilities subject to the approval, visitation and inspection of the Offices of the Department of Mental Hygiene, the State Commission of Correction, the Division for Youth or the Department of Health.

(b) Inspection and supervision of adult care facilities shall be undertaken by the department to ascertain whether all applicable provisions of law and regulations are being complied with.

(c) Inspection and supervision of adult care facilities shall include inquiry by the department into:

(1) general management and financial condition of the facility;

(2) operator's methods of administration;

(3) the development, implementation and updating of quality assurance activities for each area of operation of an adult home and residence for adults. (4) methods of, and the equipment and physical plant for, providing residential care and services for residents;

(5) qualifications and general conduct of operators and employees;

(6) condition of grounds, buildings and other property;

(7) whether the laws and regulations regarding residents' rights are obeyed; and

(8) any other matter relating to the management of the facility and care of residents.

(d) The department may undertake enforcement action against any operator of an adult care facility who fails to operate the facility in compliance with applicable provisions of law and regulation.

(e) Operators of facilities subject to the inspection and supervision of the department, or any person, corporation, society, association or other entity which operates or holds itself out as being authorized to operate any such facility, shall allow the commissioner or designees full access to the grounds, buildings, books and papers relating to the facility and shall provide any information required by the department.

(f) The commissioner or any person designated by the commissioner may undertake an investigation of the affairs and management of any facility subject to the inspection and supervision of the department, or of any person, corporation, society, association or organization which operates or holds itself out as being authorized to operate any such facility, or of the conduct of any officers or employers of any such facility. Persons empowered by the commissioner to conduct any such investigation are empowered to issue compulsory process for the attendance of witnesses and the production of papers, to administer oaths and to examine persons under oath, and to exercise the same powers in respect to the conduct of such an investigation as belong to referees appointed by the Supreme Court.

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Effective Date: 
Wednesday, October 23, 2002

Section 486.2 - Inspection.

 

486.2 Inspection. (a) Inspection shall mean a process of inquiry and investigation which shall include, but need not be limited to, announced and unannounced onsite investigations, private interviews with residents, review and investigation of the books and records of the facility, gathering of written, photographic or other physical evidence, and such collateral contacts as the department deems necessary for the purpose of determining compliance with applicable laws and regulations.

(b) The department, or a local social services district where appropriate, shall each year conduct a minimum of one full inspection of each adult care facility. Such inspection shall include, but need not be limited to, examination of the medical, dietary and social services records of the facility, as well as the minimum standards of construction, life safety standards, quality and adequacy of care, rights of residents, payments and all other areas of operation.

(c) In each private proprietary adult home or residence, the department shall conduct at least one additional inspection each year.

(d) The department or, where appropriate, a local social services district shall each year conduct a minimum of one unannounced full inspection of each adult care facility.

(e) The types of inspections undertaken by the department include, but are not limited to:

(1) complete inspections conducted prior to certification or renewal, or, in facilities with serious or continual deficiencies, to determine compliance with regulatory provisions in all areas of operation;

(2) summary inspections to determine compliance with key regulatory provisions in all areas of operation;

(3) partial inspections conducted to examine specific areas of operation; this inspection may examine key regulatory provisions in any one area or be a thorough examination of every regulation pertaining to that area;

(4) complaint inspections conducted in order to determine the validity of a complaint concerning a facility;

(5) follow-up inspections conducted in order to determine whether deficiencies noted during another inspection have been corrected; and

(6) such other inspections as may be necessary to ascertain compliance in a certified facility or to determine if an uncertified facility should be classified as an adult care facility.

(f) The requirement for a full inspection shall be satisfied by either a complete or summary inspection. In enriched housing programs a partial inspection may also satisfy the requirement for an unannounced full inspection.

(g) Partial, complete, summary or follow-up inspections qualify as the second inspection required for each proprietary adult home or residence. If a complaint investigation produces a complete, summary or partial inspection, such inspection qualifies as the second required inspection.

(h) An inspection report shall be made of each inspection, which shall identify and indicate in detail each area of operation inspected, including the premises, equipment, personnel, care and services, and whether each area of operation is or is not in compliance.

(i) A written report of inspection shall be sent to the operator, and shall include:

(1) a statement attesting that of the areas reviewed, if no violations or findings are noted in a given area, then said area(s) shall be deemed to be in compliance with applicable requirements;

(2) identification of any areas which are in violation of applicable requirements, including areas found in violation as a result of failure in systemic practices and procedures; and

(3) directions as may be appropriate as to the manner and time in which compliance with applicable requirements of law or regulations of the department shall be effected.

(j) Upon receipt of the report of inspection, but in no case later than 30 days following the date of issuance, the operator shall:

(1) correct the violations; or

(2) in the event that correction requires more than 30 days, submit an acceptable plan for correction.

(k) The operator shall notify the department, in writing, within one week after completion of corrective action.

(l) The operator shall post the inspection report for the most recent complete or summary inspection, and any related follow-up inspection reports, conspicuously in a public area of the facility which is accessible to residents and visitors.

(m) Inspection reports, excluding any confidential attachments, for the most recent two-year period shall be available for review upon request by residents or visitors.

(n) When a complaint investigation is being conducted, the department shall advise the operator of the complaint, review, findings, and prescribe corrective action. However, the operator shall not be advised of the conduct of a complaint investigation if such notice would jeopardize the complainant's confidentiality or when potential criminal wrongdoing is involved.

(o) After a complaint investigation has been completed, the department shall advise the complainant of the findings and corrective action, if any. However, a complainant shall not be advised of the outcomes of an investigation which is being contested by an operator or when civil or criminal action might be compromised by such notice.

 

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Effective Date: 
Wednesday, October 26, 2005

Section 486.3 - Inspection of uncertified facilities.

 

486.3 Inspection of uncertified facilities. (a) For the purposes of assessing whether an uncertified facility is an adult care facility subject to the certification and inspection of the department, the department may, inspect any facility which reasonably appears to the department to be an adult care facility. The needs of the residents, the care and services provided, the physical plant and the administration of the facility may be assessed in accord with applicable law and regulation.

(b) Upon arrival at the facility for purposes of conducting an inspection pursuant to this section, the department representative must give verbal notice to the operator, administrator or other person in charge that the inspection will be conducted unless such person objects to the inspection, and that if such person does object, the department is empowered to request the Attorney General to apply for a court order granting the department access to the facility.

(c) Denial of access. If access to the facility is denied to the department representatives by the operator, administrator or other person in charge, the department is authorized to request the Attorney General to apply, without notice to the operator, administrator or chairman of the board of directors of a not-for-profit facility, to the Supreme Court in the county in which the facility is located for an order granting the department access to such facility.

 

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Section 486.4 - Enforcement.

486.4 Enforcement. (a) Enforcement shall mean the action(s) undertaken or initiated by the department to assure that adult care facilities are established and operated in compliance with all applicable provisions of law and regulation.

(b) Enforcement actions undertaken by the department include, but are not limited to:

(1) issuance of notice of intention to initiate enforcement;

(2) conduct of hearings to determine if an operator has failed to comply with applicable law and regulation;

(3) determination, after hearing, that civil penalties should be imposed;

(4) determination, after hearing, to revoke, suspend or limit an operating certificate;

(5) issuance of a commissioner's order, or an order approved by a justice of the Supreme Court, requiring an operator to immediately remedy conditions dangerous to residents;

(6) temporary suspension or limitation of an operating certificate upon finding that resident health and safety are in imminent danger;

(7) request to the Attorney General to seek an injunction against an operator for violations or threatened violations of law or regulation; or

(8) request to the Attorney General to take such action as is necessary to collect civil penalties, seek criminal prosecution, or to bring about compliance with any outstanding hearing determination or order.

(c) The operating certificate of any facility may be revoked, suspended or limited upon a determination by the department, after a hearing in accordance with procedures set forth in Part 493 of this Title, that the operator has failed to comply with the requirements of State or local laws or regulations applicable to the operation of such facility.

(d) An operating certificate may be temporarily suspended or limited without a hearing for a period not in excess of 60 days upon written notice to the facility that the department has found that the public health, or an individual's health, safety or welfare is in imminent danger. If the department schedules an expedited hearing to begin during the suspension period, in a proceeding to suspend, revoke or limit the operating certificate, as set forth in section 493.8 of this Title, the temporary suspension will remain in effect until the hearing decision is issued.

(e) Any order or determination to limit an operating certificate shall specify the manner in which the operating certificate is to be limited. An operating certificate may be found subject to one or more of the following limitations:

(1) a limitation on the period of time for which such certificate remains effective, contingent on a determination that specified violations have been corrected or specified conditions have been met;

(2) a limitation on the number of persons for which such facility is authorized to provide care;

(3) a prohibition against the admission of new residents after a specified date; or

(4) a limitation on the type(s) of service to be provided.

(f) Violations or threatened violations of law or the regulations of the department, by any facility subject to the inspection and supervision of the department, may be enjoined by the Supreme Court. The Attorney General may seek such an injunction, in the name of the people, upon the request of the department. Service in such an action shall state the nature of the violation and shall be accomplished in the manner prescribed by the Civil Practice Law and Rules; provided, however, that an ex parte temporary restraining order may issue, notwithstanding the Civil Practice Law and Rules, if the court finds, on motion and affidavit, that such violation may reasonably be expected to result in imminent danger to the public health or to the health, safety or welfare of any individual in a facility subject to the department's inspection and supervision. The court, after a hearing, may issue a preliminary injunction or a permanent injunction enjoining a facility from admitting new residents, or directing the department and such facility to arrange for the transfer of residents to other facilities, or any other injunctive relief the court may deem necessary.

(g) Whenever the commission, after investigation, finds that any person, agency or facility subject to this regulation is causing, engaging in or maintaining a condition or activity which constitutes a danger to the physical or mental health of the residents of a facility subject to the inspection and supervision of the department, and that it, therefore, appears to be prejudicial to the interests of such residents to delay action for 30 days until an opportunity for a hearing can be provided in accordance with the provisions of this section, the commissioner shall order the person, agency or facility, by written notice setting forth the basis for such finding, to discontinue such dangerous condition or activity or take certain action immediately or within a specified period of less than 30 days. The commissioner shall, within 30 days of issuance of the order, provide the person, agency or facility an opportunity to be heard and to present any proof that such condition or activity does not constitute a danger to the health of such residents.

(h) Any official, operator or his agent, designee or employee of a facility who intentionally refuses to admit any officer or inspector of the department, or intentionally refuses or fails to furnish the information required by the department or any officer or inspector, shall be guilty of a misdemeanor.

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Effective Date: 
Wednesday, January 4, 2006

Section 486.5 - Civil penalties

486.5 Civil penalties. (a) Civil penalties for certified adult care facilities.

(1) Civil penalties of up to $1,000 per day, as specified in section 486.7 of this Part, may be assessed against adult care facilities, except those operated by a social services district, for violation of these regulations or of an order pursuant to subdivision 8 of section 460-d of the Social Services Law.

(2) Civil penalties shall be calculated from receipt of the report of inspection, except that civil penalties assessed pursuant to paragraph 4 of this section may be calculated from the date the violation occurs. The penalties shall cease to run on the date that correction is made, subject to verification by the department.

(3) No penalty can be imposed, except as provided in paragraph (4) of this subdivision, if at the time of a hearing, the operator satisfactorily demonstrates that either (i) the violations have been rectified within 30 days of receipt of the written report of inspection first citing the violation, or (ii) an acceptable plan for rectification and monitoring to ensure that violations do not recur had been submitted to the department within 30 days of receipt of such written report of inspection and the plan was being implemented in accordance with the procedures and time frames approved by the department. A violation is not deemed rectified unless an operator implements and maintains the necessary corrective actions. When the department inspects a facility and finds one or more violations of this Title, it must issue a report of inspection to the operator of the that facility. This report shall contain directions as may be appropriate as to the manner and time in which compliance with applicable requirements of law or regulations of the department shall be effected. If the violations require facility-wide rectification, the operator must rectify all conditions which constitute a violation of the cited regulation.

(4) Even where correction of a violation has occurred in accordance with paragraph (3) of this subdivision, the department may assess a penalty if it establishes at a hearing that the particular violation endangered or resulted in harm to a resident as the result of:

(i) the total or substantial failure of the facility's fire protection or prevention systems, or the emergency evacuation procedures. Substantial failure will have occurred if more than half of the individual sensor or alarm units required in paragraph (f)(1), (2), (3), (4), or (16) of section 487.11 of this Title are inoperative, or if more than half of the evacuation procedures required in section 487.12(d) of this Title are not posted. Substantial failure will also have occurred for any violation of paragraph (f)(6), (12) or (20) of section 487.11, or section 487.12(a), (f)(1) or (g);

(ii) the retention of any resident who has been evaluated by the resident's physician as requiring placement in a hospital or residential health care facility and for whom the operator has not made and documented persistent efforts to secure appropriate placement as required by section 487.4(k)(2) of this Title;

(iii) the failure of the operator to take actions in the event of a resident's illness, accident, death or attempted suicide as required by sections 487.7(d)(6)(iii)(a)-(b), (d)-(e), (8), (9), 488.7(b)(6), (8), (9) and 490.7(d)(4)(iii)(a-d), (6), (7) of this Title;

(iv) the failure of the operator to provide at all times supervision of residents by numbers of staff at least equivalent to the staffing requirements required by section 487.9(f)(6)-(9) of this Title.

(v) the failure of systemic practices and procedures as evidenced by a pattern of violations or an inability to bring a specific area of facility operation into compliance with sections 487.4, 487.5, 487.6, 487.7, 487.8, 487.9(a)(1),(3),(7),(8), (10-15), 487.9(b-d),(f),(g)(1), 487.10(a-b), 487.11, 487.12(b), (g)-(j), 488.4, 488.5, 488.6, 488.7, 488.8, 488.9(a)(1), (2), (4), (5), (7-11), 488.9(b-e), 488.10(a-b), 488.11, 488.12(b-c), (g-i), (l),490.4, 490.5, 490.6, 490.7, 490.8, 490.9(a)(1), (3), (5), (6), (8-13), 490.9 (b-d), (f), 490.10(a-b), 490.11, 490.12(b), or (g-j).

(vi) threats of retaliation or taking reprisals against a resident of an adult home, residence for adults or enriched housing program, which constitute a violation of sections 487.5 (a)(3)(ix), 488.5 (a)(3)(i) or 490.5 (a)(3)(i) of this Title, including unreasonable threats of eviction or hospitalization against a resident, employee or other person who makes a complaint concerning the operation of an adult home, enriched housing program or residence for adults, participates in the investigation of a complaint or is the subject of an action identified in a complaint.

(5) If, however, the violation cited under paragraph (4) of this subdivision was caused solely by an act of God, and the operator took immediate action to correct it, the department shall not assess a penalty under paragraph (4) for such violation.

(6) No civil penalty can be assessed without a hearing held in accordance with the procedures established in Part 493 of this Title.

(b) Civil penalties for uncertified adult care facilities. (1) A civil penalty, not to exceed $1,000 per day, may be assessed against any facility which is an adult care facility and which does not possess a valid operating certificate issued by the department.

(2) After an inspection has been conducted in accord with the procedures set forth in section 486.3 of this Part, and a decision has been made that a facility is an uncertified adult care facility subject to a fine, a hearing will be conducted in accord with the procedures set forth in Part 493 of this Title.

(3) No penalty shall be imposed if the operator demonstrates that it possesses a valid operating certificate issued pursuant to article 7 of the Social Services Law, article 28 of the Public Health Law, or article 19, 23 or 31 of the Mental Hygiene Law.

(c) Civil penalties for adult homes and enriched housing programs which have received approval to operate an assisted living program.

(1) An adult home operator who has received written approval to operate an assisted living program in accordance with the provisions of this Title must operate such program in compliance with all applicable provisions of Parts 485, 486, 487 and 494 of this Title. Failure to operate the assisted living program in compliance with the provisions of Parts 485, 486 and 487 may result in the imposition of civil penalties in accordance with subdivision (a) of this section and sections 486.7(a), (b) and (c) of this Title.

(2) An enriched housing program operator who has received written approval to operate an assisted living program in accordance with the provisions of this Title must operate in compliance with all applicable provisions of Parts 485, 486, 488 and 494 of this Title. Failure to operate the assisted living program in compliance with the provisions of Parts 485, 486 and 488 of this Title may result in the imposition of civil penalties in accordance with subdivision (a) of this section and section 486.7(d) of this Title.

(d) Upon the request of the department, the Attorney General may commence an action in any court of competent jurisdiction for the recovery of any penalty assessed by the department in accordance with the provisions of this Part.

(e) Any penalty assessed by the department before the matter has been referred to the Attorney General may be released or compromised and any action commenced to collect the penalty may be settled and discontinued by the Attorney General with the consent of the department. In determining the amount of any such release or compromise, the department shall consider the promptness of rectification, delays in the hearing process caused by the department, and any specific circumstances of the violations.

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Effective Date: 
Wednesday, October 26, 2005

Section 486.6 - Penalties for noncompliance by local social services districts.

 

486.6 Penalties for noncompliance by local social services districts.

(a) Withholding of funds. Reimbursement for expenditures by a social services district for the operation of an adult care facility shall be subject to withholding or denial when the district, as operator of the adult care facility, fails to comply with the law and regulations pertaining to the certification and operation of such facilities.

(b) Notification. The department shall notify the district of all violations pursuant to the procedures set forth in section 486.2(i) of this Part.

(c) Funds to be withheld. If corrections have not been made within 30 days of the date the district received notice of the violations, or an approvable plan for correction has not been submitted by the district within 30 days of the date the district received notice of the violation, the department may withhold either up to 50 percent of the State reimbursement for allowable expenses for all publicly operated adult care facilities in the district, if two or more of the district's publicly operated facilities are subject to penalty pursuant to this section, or up to the entire State reimbursement for allowable expenses for the nonconforming facility, from the 31st day after the notice of violation until the department notifies the local district, in writing, that the facility is in compliance. The commissioner of the local district shall be given written notice of the decision to withhold reimbursement.

(d) Subsequent denial of withheld funds. If the local district does not correct the violations cited in the notice of violations within the time periods specified in the notice of withholding, the department may deny up to the entire amount of the withheld reimbursement. The commissioner of the local district shall be given written notice of the decision to deny reimbursement.

(e) The local district shall have the right to a judicial review of the decision to withhold or deny reimbursement in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

(f) Reimbursement may be withheld or denied in whole or in part until such time that the district notifies the department in writing of its compliance and the department notifies the district in writing it has verified that the facility is in compliance.

 

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Section 486.7 - Schedule of penalties

486.7 Schedule of penalties.

(a) Penalties for Part 485 of this Title.

Department regulations Penalty per violation per day
485.5 (a) $ 50
(d) 50
(e) 50
(f) 1,000
(g) 50
(h) 50
(i) 50
(j) (1) 1,000
(j) (2) 100
(j) (3) 1,000
(j) (4) 1,000
(j) (5) 1,000
(p) 10
(q) 50
485.7 (d) $ 100
(e) 100
485.10 (a) (2) $ 10
(3) 50
(4) 10
(5) 10
485.11 (a) $ 50
(b) 50
(c) 10
(f) (2) 50
(3) 25
485.12 (a) (1) $ 50
(4) 50
485.13 (a) (1) $ 25
(2) 25
(3) 25
(4) 25
(5) 100
(b) (1) (i) 25
(ii) 25
(2) 25
(3) 25
(4) 25
(5) 25
(6) NA
(7) 25
(c) 25
485.14 (a) (1) $ 25
(2) 25
(3) 25
(b) 25
(c) NA
(d) 25
(e) NA
(f) NA
(g) 25
(h) (1) 25
(2) 25
(3) 25
(i) NA
(j) NA

 

(b) Penalties for Part 486 of this Title.

Department regulations Penalty per violation per day
486.2 (k) $ 100
(l) 50
(m) 50
486.5 (a) (4) (i) $ 1,000
(ii) 1,000
(iii) 1,000
(iv) 1,000
(v) 1,000
(vi) 1,000

 

(c) Penalties for Part 487 of this Title.

Department regulations Penalty per violation per day
487.3 (a) $ 50
(b) 50
(d) 50
(e) 50
(f) 50
   
487.4 (a) $ 50
(c) (1) 50
(2) 50
(3) 50
(4) 50
(5) 50
(6) 50
(7) 50
(8) 50
(9) 50
(10) 50
(11) 50
(12) 50
(13) 50
(14) 50
(15) 50
(d) 100
(e) 25
(f) 5
(g) 5
(h) 25
(i) 25
(j) (1) 25
(2) 25
(k) 25
(l) (1)  
(l) (2) 25
(m) (1) 10
(2) 10
(n) 10
(l) NA
(ii) 1,000
(iii) 1,000
(iv) 1,000
(o) 10
(p) (1) 10
(2) 10
(3) 10
(4) 10
(q) 10
(r) 25
   
487.5 (a) (1) $ 100
(2) 100
(3) (i) 100
(ii) 100
(iii) 100
(iv) 100
(v) 100
(vi) 100
(vii) 100
(viii) 100
(ix) 100
(x) 100
(xi) 100
(xii) 100
(xiii) 100
(xiv) 100
(xv) 100
(b) 100
(c) 100
(d) (1) (i) 100
(ii) 100
(2) 100
(5) 10
(6) (i) 10
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(vii) 10
(viii) 10
(ix) 10
(x) 10
(xi) 10
(xii) 10
(xiii) 10
(xiv) 10
(xv) 10
(xvi) 10
(xvii) 10
(xviii) 10
(xix) 10
(xx) 10
(xxi) 10
(xxii) 10
   
(e) 50
(f) (1) 50
(3) 25
(4) 25
(5) 10
(6) 10
(8) 25
(9) 50
(10) 50
(11) 10
(13) 50
(14) 100
(15) 25
(16) 25
(17) 100
(19) 25
   
487.6 (a) (1) (i) $ 25
(ii) 25
(iii) 25
(iv) 25
(v) 25
(vi) 25
(2) 25
(3) 50
(4) 25
(5) 50
(6) 50
(7) 25
(b) (1) 100
(2) 25
(3) 25
(c) (1) 25
(2) 25
(3) 25
(4) 50
(5) 25
(6) 25
(7) 25
(8) 10
(9) 10
(10) 10
(11) 25
(12) 10
(13) 25
(15) 50
(d) (2) 25
(3) 10
(4) 25
(e) (2) 25
(3) 10
(4) 25
(5) 25
(f) (1) 25
(2) 25
(3) 25
(4) 25
487.7 (a) $ 50
(b) 50
(c) (1) 50
(2) 25
(d) (1) 100
(2) 50
(3) 100
(4) 50
(5) 25
(6) (i) 50
(ii) 50
(iii) 50
(7) 50
(8) 1,000
(9) 1,000
(10) 1,000
(11) 1,000
(12) 1,000
(13) 1,000
(e) (1) 100
(2) 50
(3) 25
(4) 25
(5) 25
(6) 25
(7) 25
(8) 25
(9) 25
(f) (1) 25
(5) 100
(6) 50
(7) 50
(8) 25
(9) 25
(10) 10
(11) (i) 50
(ii) 50
(iii) 50
(iv) 50
(v) 50
(vi) 25
(vii) 25
(viii) 25
(x) 25
(xi) 25
(12) (i) 50
(ii) 50
(iii) 50
(g) (1) 100
(2) 25
(3) 50
(4) 50
(5) 100
(h) (1) 50
(2) 50
(3) 50
(4) 10
(5) 50
(6) 50
(7) 10
(8) 10
(9) 10
(10) 10
(11) 50
(12) 50
   
487.8 (a) $ 100
(b) 50
(c) 25
(d) (1) 50
(2) 10
(3) 10
(4) 10
(5) 10
(6) 10
(7) 10
(8) 10
(9) 10
(10) 10
(11) 50
(e) (1) 100
(2) 10
(3) 50
(4) 25
(5) 50
(6) 50
(7) 25
(8) 25
(9) 25
(10) 50
(11) 10
(12) 10
(13) 10
(14) 10
(15) 10
   
487.9 (a) (1) $ 100
(2) 50
(3) 25
(4) 25
(5) 10
(6) 10
(7) 10
(8) 25
(9) 25
(10) 50
(11) 50
(12) 25
(13) 25
(14) 25
(15) 50
(16) 50
(b) (1) $ 50
(2) 50
(3) 10
(c) (1) 100
(2) 50
(3) 50
(4) 50
(5) 50
(8) (i) 50
(ii) 50
(iii) 50
(iv) 50
(v) 50
(15) 50
(19) 50
(d) (1) (i) 50
(ii) 50
(2) 50
(3) 25
(4) (i) 25
(ii) 25
(e) (1) (i) 50
(ii) 50
(2) 50
(3) 25
(4) 50
(3) 25
(f) (1) 100
(2) 50
(3) 50
(6) 50
(7) 50
(g) (1) 100
(2) 50
(4) 50
(5) 50
(h) 100
(i) 100
(j) (1) 100
(2) 50
(3) 50
(4) 10
(k) 50
(l) 25
   
487.10 (a) $ 50
(b) 50
(c) (1) 50
(2) 50
(3) 50
(4) (i) 10
(ii) 10
(iii) 10
(d) (1) 50
(2) 50
(3) 50
(4)  
(5) (i) 10
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(vii) 10
(viii) 10
(ix) 10
(6) 100
(e) (1) (i) 100
(ii) 100
(iii) 50
(2) 25
(f) (1) 10
(2) 10
(3) 10
(4) 10
(5) 10
(6) 10
(7) 50
(g) (1) 25
(2) 25
(3) 25
(4) 25
(5) 25
(6) 100
(7) 25
(8) 25
(9) 25
(h) (1) 25
(2) 25
(3) 25
   
487.11 (a) $ 100
(b) (2) 50
(c) 50
(d) 50
(e) 100
(f) (1) (i) 50
(ii) 50
(iii) 50
(2) 50
(3) 50
(4) 100
(6) 50
(7) 50
(8) (i) 25
(ii) 25
(iii) 25
(iv) 25
(9) 50
(10) 100
(11) (i) 50
(ii) 50
(iii) 50
(12) (i) 25
(ii) 25
(iii) 25
(iv) 25
(v) 25
(13) 50
(14) 25
(15) 25
(16) 25
(17) (i) 25
(ii) 25
(iii) 25
(18) 50
(19) (i) 25
(ii) 25
(iii) 25
(iv) 25
(v) 25
(vi) 25
(vii) 25
(viii) 25
(20) 50
(g) (1) 50
(2) 25
(3) 25
(4) 25
(5) 25
(h) (1) 25
(2) 25
(3) 25
(4) 25
(5) 25
(6) 50
(7) 50
(8) 25
(9) 25
(10) 25
(11) 25
(12) 25
(13) 25
(14) 25
(15) 25
(16) 25
(17) 25
(18) 25
(19) 25
(i) (1) 50
(2) 50
(3) 25
(4) (i) 25
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(vii) 10
(5) 25
(6) 25
(7) (i) 10
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(vii) 10
(8) (i) 10
(ii) 10
(iii) 10
(9) 25
(10) 25
(11) 10
(12) 10
(13) 10
(14) 25
(15) 25
(16) 25
(j) (1) 50
(2) 25
(3) 25
(4) 25
(5) 25
(k) (1) 50
(2) 10
(3) 10
(4) 10
(5) 10
(6) 10
(7) 10
(8) 10
(9) 10
(10) 10
(11) 10
(12) 10
(13) 100
(14) 100
(15) 10
(16) 10
(17) 10
(l) (1) 50
(2) 25
(4) 25
(5) 25
(6) 25
(7) 25
(9) 25
(10) 25
(11) 25
(12) 50
(13) 25
(14) (i) 25
(ii) 25
(iii) 50
(iv) 50
(v) 50
(vi) 25
(vii) 25
(viii) 25
(ix) 25
(x) 50
(15) 50
(m) (1) 100
(2) 50
(3) 50
   
487.12 (a) 100
(b) (1) 25
(2) 25
(3) 25
(4) 25
(5) 25
(c) 50
(d) 50
(e) 50
(f) (1) 50
(2) (i) 25
(ii) 25
(iii) 25
(g) 50
(h) 100
(i) 10
(j) 25
   
487.13 (c) $ 1000
(d) 1000
(e) 1000
(g) 1000
(h) 1000

 

(d) Penalties for Part 488 of this Title. The department may assess a civil penalty, not to exceed $100 per day, against the operator of an enriched housing program which is not in compliance with department regulations except that the department may assess a civil penalty not to exceed $1000 per day for each violation of Section 488.7(b)(8-13) of this Part.

(e) Penalties for Part 489 of this Title.

Department regulations

Penalty per violation per day, except as noted
489.3 (a) $50
(b)(1) 50
(6) 30
(7) 30
(9) 30
(10) 30
(11) 30
(c) 30
   
489.7(a) $30
(b)(1) 30
(2) 30
(3) 30
(4) 30
(5) 30
(6) 30
(7) 30
(8) 30
(9) 30
(10) 30
(11) 30
(12) 30
(13) 30
(14) 30
(15) 30
(16) 30
(17) 30
(18) 30
(19) 30
(c) 50
(d) 20
(e) 20
(f) 20
(h) 20
(i)(1) 10
(2) 10
(j) 20
(k)(1) 10
(2) 50
(l) 10
(m) 10
(n) 50
(o) 5
(p) 5
   
489.8(a) $30
(c) 20
(f) 30
   
489.9(a)(1) $50
(2) 20
(3)(i) 50
(ii) 50
(iii) 30
(iv) 50
(v) 50
(vi) 50
(vii) 50
(viii) 50
(ix) 50
(x) 50
(xi) 50
(xii) 50
(xiii) 50
(xiv) 50
(xv) 50
   
(b)(1) 20
(2)(i) 20
(ii) 20
(iii) 30
(iv) 30
(v) 30
(vi) 30
(vii) 20
(viii) 5
(ix) 5
(x) 10
(xi) 30
(xii) 20
(xiii) 10
(3)(i) 30
(iv) 30
(4)(ii) 5
(iii) 20
(iv) 20
   
449.10(a) $30
(b)(1) 50
(2) 30
(3) 50
(4) 5
(5) 50
(6) 30
(7) 20
(8) 30
(9) 30
(10) 20
(11) 10
(12) 5
(13) 10
   
489.10(c)(1) $50
(2) 30
(3) 20
(4) 20
(5) 20
(6) 20
(7) 20
   
(d)(1) 20
(6) 50
(7) 20
(8) 20
(9) 10
(10) 30
(11) 30
(12) 20
(13) 20
(14) 20
(15) 30
(16) 20
(17) 30
(18) 30
(e)(1) 50
   
489.11(a) $30
(b) 20
(c) 50
(d) 10
(e) 10
(f) 20
(g) 10
(h) 20
(i) 30
(j) 30
(k) 20
(l) 20
   
489.12(a) $50
(b) 30
(c) 30
(d) 50
(e) 30
(f)(1)(i) 20
(ii) 20
(iii) 20
(iv) 30
(v) 20
(2) 20
(3) 20
(g)(1) 30
(2) 20
(3) 20
(4) 10
(5) 10
(6) 10
(7) 10
(8) 20
(9) 20
(10) 20
(11) 10
(12) 10
(13) 10
(h)(1) 30
(2) 20
(3) 10
(4) 10
(i)(1) 30
(j)(1) 20
(2) 20
(3) 20
(4) 20
(5) 20
(6) 20
(k)(1) 30
(2) 20
(3) 20
(l)(1) 20
(2) 20
(3) 20
(4) 20
(5) 20
(m)(1) 20
(2) 20
(3) 20
(4) 20
(5) 20
(6) 30
(7) 20
(8) 20
(9) 20
(10) 20
(11) 20
(12) 20
(13) 20
(14) 20
(15) 20
(16) 20
(17) 10
(n)(1) 30
(2) 20
(3) 30
(4)(i) 20
(ii) 20
(iii) 20
(iv) 20
(v) 20
(vi) 20
(vii) 20
(viii) 20
(5) 30
   
489.13(a) $50
(b) 30
(c) 20
(d) 20
(e) 20
(f) 20
(g) 20
(h) 30
(i) 30
(j) 20
(k) 30
(l) 30
   
489.14(a)(1) 30
(2) 30
(3) 20
(4) 20
(5) 5
(6) 5
(d) 10
(e) 10
(f) 10

 

(f) Penalties for Part 490 of this Title.

Department regulations Penalty per violation per day
490.3(a) $50
(b) 50
(c) 50
(d) 50
(e) 50
   
490.4(a) 50
(c)(1) 50
(2) 50
(3) 50
(4) 50
(5) 50
(6) 50
(7) 50
(8) 50
(9) 50
(10) 50
(11) 50
(12) 50
(13) 50
(14) 50
(15) 50
(16) 50
(17) 50
(e) 100
(f) 25
(g) 25
(h) 25
(i) 25
(j) 25
(k)(1) 25
(2) 25
(l) 25
(m)(1) 50
(n)(1) 10
(2) 50
(o) 25
(p) 10
(q) 10
(r) 10
(s) 10
(t) 25
   
490.5(a)(1) 100
(2) 100
(3)(i) 100
(ii) 100
(iii) 100
(iv) 100
(v) 100
(vi) 100
(vii) 100
(ix) 100
(x) 100
(xi) 100
(xii) 100
(xiii) 100
(xiv) 100
(b) 100
(c)(1) 100
(2) 100
(3) 100
(d)(1)(i) 100
(ii) 100
(2) 100
(5) 10
(6)(i) 10
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(vii) 10
(viii) 10
(ix) 10
(x) 10
(xi) 10
(xii) 10
(xiii) 10
(xiv) 10
(xv) 10
(xvi) 10
(xvii) 10
(xviii) 10
(xix) 10
(xx) 10
(xxi) 10
(e) 50
(f)(1) 50
(3) 100
(4) 25
(5) 25
(6) 25
(7) 10
(8) 10
(10) 25
(11) 50
(12) 50
(13) 10
(15) 50
(16) 25
(17) 100
(19) 25
   
490.6(a)(1)(i) 25
(ii) 25
(iii) 25
(iv) 25
(v) 25
(vi) 25
(2) 25
(3) 50
(4) 25
(5) 50
(6) 50
(7) 25
(b)(1) 100
(2) 25
(3) 25
(c)(1) 25
(2) 25
(3) 25
(4) 50
(5) 25
(6) 25
(7) 25
(8) 10
(9) 10
(10) 10
(11) 25
(12) 10
(13) 25
(15) 50
(d)(2) 25
(3) 10
(4) 25
(5) 10
(e)(2) 25
(3) 10
(4) 25
(5) 25
(f)(2) 25
(g)(1) 25
(2) 25
(3) 25
(4) 25
   
490.7(a) 50
(b) 50
(c)(1) 50
(2) 25
(d)(1) 100
(2) 50
(3) 25
(4)(i) 50
(ii) 50
(iii) 50
(5) 50
(6) 1000
(7) 1000
(8) 1000
(9) 1000
(10) 1000
(11) 25
(12)(i) 25
(iii) 25
(iv) 100
(v) 50
(vi) 50
(vii) 25
(viii) 25
(ix) 10
(x)(a) 50
(b) 50
(c) 50
(d) 50
(e) 50
(f) 25
(g) 25
(h) 25
(j) 25
(k) 25
(xi)(a) 50
(b) 50
(c) 50
(e)(2) 100
(3) 25
(4) 50
(f)(1) 50
(2) 50
(4) 10
(5) 50
(6) 50
(7) 10
(8) 10
(9) 25
(10) 50
(11) 50
(12) 50
(g)(1) 100
(2) 25
(3) 50
(h)(1) 50
(i) 10
(ii) 50
(iii) 25
(iv) 25
(2) 50
   
490.8(a) 100
(b) 50
(c) 25
(d)(1) 50
(2) 10
(3) 10
(4) 10
(5) 10
(6) 10
(7) 10
(8) 10
(9) 10
(10) 10
(11) 10
(e)(1) 100
(2) 10
(3) 50
(4) 25
(5) 50
(6) 50
(7) 25
(8) 25
(9) 25
(10) 50
(11) 10
(12) 10
(13) 10
(14) 10
(15) 10
   
490.9(a)(1) 100
(2) 25
(3) 25
(4) 10
(5) 10
(6) 25
(7) 25
(8) 50
(9) 50
(10) 25
(11) 25
(12) 25
(13) 50
(14) 50
(b)(1) 50
(2) 50
(3) 10
(4) 10
(c)(1) 100
(2) 50
(3) 50
(4) 50
(5) 50
(7)(i) 50
(ii) 50
(iii) 50
(iv) 50
(v) 50
(vi) 50
(vii) 50
(viii) 50
(ix) 50
(14) 50
(18) 50
(d)(1) 50
(2) 50
(3) 50
(4) 50
(5) 25
(6) 25
(e)(1)(i) 50
(ii) 50
(2) 50
(3) 25
(4) 25
(f)(1) 50
(2) 100
(3) 50
(4) 50
(6) 50
(7) 50
(8) 50
(g)(2) 100
(h) 100
(i) 100
(j)(1) 100
(2) 50
(3) 50
(4) 10
(k) 50
(l)(1) 25
(2) 25
   
490.10(a) 50
(b) 50
(c)(1) 50
(2) 50
(3) 50
(4)(i) 10
(ii) 10
(iii) 10
(d)(1) 50
(2) 50
(3) 50
(4)(i) 10
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vii) 10
(viii) 10
(ix) 10
(e)(1) 100
(3) 100
(4) 25
(f)(1) 10
(2) 10
(3) 10
(4) 10
(5) 10
(6) 10
(g)(1) 25
(2) 25
(3) 25
(4) 25
(5) 25
(6) 100
(7) 25
(8) 25
(9) 25
(h)(1) 25
(2) 25
(3) 25
   
490.11(a) 100
(b)(1) 50
(2) 50
(c) 50
(d) 50
(e) 50
(f) 100
(g)(1)(i) 50
(ii) 50
(iii) 50
(iv) 50
(3) 50
(4) 50
(5) 100
(7) 50
(8) 50
(9)(i) 25
(ii) 25
(iii) 25
(iv) 25
(10) 50
(11) 100
(12)(i) 50
(ii) 50
(iii) 50
(13)(i) 25
(ii) 25
(iii) 25
(iv) 25
(v) 25
(14) 50
(15) 25
(16) 25
(17) 25
(18)(i) 25
(ii) 25
(iii) 25
(19) 50
(20)(i) 25
(ii) 25
(iii) 25
(iv) 25
(v) 25
(vi) 25
(vii) 25
(viii) 25
(21) 50
(h)(1) 50
(2) 25
(3) 25
(4) 25
(5) 25
(i)(1) 25
(2) 25
(3) 25
(4) 25
(5) 25
(6) 50
(7) 50
(8) 25
(9) 25
(10) 25
(11) 25
(12) 25
(13) 25
(14) 25
(15) 25
(16) 50
(17) 50
(18) 25
(j)(1) 50
(2) 50
(3) 25
(4)(i) 25
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(vii) 10
(5) 25
(6) 25
(7)(i) 10
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(vii) 10
(8)(i) 10
(ii) 10
(iii) 10
(9) 25
(10) 25
(11) 10
(12) 10
(13) 10
(14) 25
(15) 25
(16) 25
(k)(1) 50
(2) 25
(3) 25
(4) 25
(5) 25
(l)(1) 50
(2) 10
(3) 10
(4) 10
(5) 10
(6) 10
(7) 10
(8) 10
(9) 10
(10) 10
(11) 10
(12) 10
(13) 100
(14) 100
(15) 10
(16) 10
(17) 10
(m)(1) 50
(2) 50
(3) 25
(4) 25
(5) 25
(6) 25
(7) 25
(9) 25
(10) 25
(11) 25
(12) 50
(13) 25
(14)(i) 25
(ii) 25
(iii) 50
(iv) 50
(v) 50
(vi) 25
(vii) 25
(viii) 25
(ix) 25
(x) 50
(15) 50
(n)(1) 100
(2) 50
(3) 50
   
490.12(a) 100
(b)(1) 25
(2) 25
(3) 25
(4) 25
(5) 25
(c) 50
(d) 50
(e) 50
(f)(1) 50
(2) 25
(3) 25
(g) 50
(h) 100
(i) 10
(j) 25

 

(g) Penalties for Part 491 of this Title.

491.3(a) 100
(b) 50
(c) 50
(d) 50
   
491.4 (a) 25
(b) 25
(c) 25
(d) 25
(e) 25
(i) 25
(g) NA
(h) 25
   
491.5(a) 25
(b) 25
(c) 25
(d) 25
(e) 25
   
491.6(a) 25
(b)(1) 25
(2) 25
(3) 25
(4) 25
(5) 50
(6) 25
(7) 25
(8) 50
(9) 50
(10) 50
(11) 10
(c)(1) 25
(2) 25
(3) 25
(4) 25
(5) 25
(6) 25
(7) 25
(8) 25
(d)(1) 25
(2) 25
(3) 10
(4) 10
   
491.7(a) 50
(b) 50
(c) 50
(2) 25
(3) 25
(4) 25
(5) 25
(6) 25
(7) 25
(8) 25
(9) 25
(10) 25
(11) 25
(12) 25
(13) 25
(14) 25
(d)(2) 25
(15) 25
   
491.8(a) 50
(b)(1) 50
(2) 50
(c) 50
(d) 50
(e) NA
(f)(1)(i) 50
(ii) 50
(iii) 50
(iv) 50
(v) 50
(vi) 50
(vii) 50
(viii) 50
(ix) 50
(x) 50
(2) 50
(3) 50
(4)(i) 100
(ii) 25
(5)(i) 100
(ii) 25
(iii) 100
(6)(i) 100
(ii) 25
(iii) 25
(7) 10
(8) 10
(9) 10
(10) 50
(11) 50
(12) 50
(13) 50
(14) 50
(g)(1) 50
(i) 50
(ii) 50
(iii) 50
(iv) 50
(3)(i) 25
(ii) 25
(iii) 25
(iv) 25
(4) 50
   
491.9(a) 25
(b) 25
(c) 50
(d) 50
(e)(1) 10
(2) 10
(f) 10
(g) 50
(h) 50
(i) 10
(j) 10
(k) (19)
(l) 25
(m) 25
(n) 10
   
491.10(a) 50
(b)(1) 50
(2) 50
(c) 50
(d) 50
(e)(1) 100
(2) 100
(f) 50
(g)(1)(i) 100
(ii) 100
(iii) 100
(2) 100
(3) 50
(4) 100
(5) 50
(6) 50
(7) 50
(8) 100
(9)(i) 100
(ii) 100
(iii) 100
(iv) 100
(v) 100
(10) 50
(11) 50
(12) 50
(13) 50
(14)(i) 50
(ii) 50
(iii) 50
(15) 50
(16)(i) 25
(ii) 25
(iii)
(iv) 25
(v) 25
(vi) 25
(vii) 25
(viii) 25
(17) 50
(h)(1) 50
(2) 25
(3) 25
(4) 25
(5) 25
(i)(1) 50
(2) 50
(3) 25
(4) 10
(5) 25
(6) 25
(j)(1) 10
(2) 10
(3)(i) 25
(ii) 25
(iii) 25
(4)(i) 25
(ii) 25
(iii) 25
(iv) 25
(v) 25
(vi) 25
(5)(i) 10
(ii) 10
(iii) 10
(6) 25
(7) 10
(8) 10
(9) 10
(10) 10
(11) 10
(k) 10
(l) 10
(m)(1) NA
(2)(i) 50
(ii) 50
(iii) 50
(3) 25
(4) 10
(5) 10
(6) 10
(n)(1) 50
(2) 25
(3) 10
(4) 10
(5) 10
(6) 10
(7) 10
(8) 10
(9) 10
(10) 10
(11) 10
(12) 10
(13) 10
(14) 10
(15) 10
(o)(1) 50
(2) 10
(3) 10
(4) 10
(5) 10
(6) 10
(7)(i) 10
(ii) 10
(iii) 10
(8)(i) 25
(ii) 10
(iii) 10
(9)(i) 10
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(vii) 10
(viii) 10
(ix) 10
(x) 10
(xi) 10
(10) 10
   
491.11(a) 100
(b) NA
(c) 50
(d) 10
(e) 10
(f) 50
(g) 10
   
491.12(a) 50
(b) 10
(c) 50
(d) 10
(e) 50
(f) 25
(g) 50
(h) 50
(i)(1) 25
(2) 25
(3) 25
(4) 25
(j) NA
   
491.13(a) 25
(b) 50
(c)(1) 25
(2) 25
(d)(1)(i) 100
(ii) 100
(iii) 100
(iv) 100
(v) 100
(vi) 100
(2) 50
(3) NA
(4) NA
(5) NA
(6) NA
(7) 100
(8)(i) 50
(ii) 50
(iii) 50
(iv) 50
(v) 50
(vi) 50
   
491. (a) 25
(b) 100
(c) 10
(d) NA
(e) NA
(f)(1) NA
(2) 25
(g)(1) 25
(2) 25
(3) 25
(h)(1) 10
(2) 10
(3)(i) 10
(ii) 10
(iii) 10
(iv) 10
(v) 10
(vi) 10
(4) 25
(i)(1) 10
(2) 10
(j) 10
(k)(1) 10
(2) 10
Doc Status: 
Complete
Effective Date: 
Wednesday, November 21, 2018
Statutory Authority: 
Social Services Law, Sections 461 and 461-l(5)

Part 487 - STANDARDS FOR ADULT HOMES

Doc Status: 
Complete
Effective Date: 
Wednesday, November 21, 2018
Statutory Authority: 
Social Services Law, Sections 20, 34, 131-o, 460, 460-a--460-g, 461, 461-a--461-h

Section 487.1 - Applicability

Section 487.1 Applicability. (a) This Part shall apply to adult homes as defined herein and, except as specifically limited by Part 490 of this Title, to residences for adults.

(b) Parts 485 and 486 of this Title shall apply to adult homes, except as specifically limited.

(c) This Part shall not apply to any housing projects established pursuant to the Private Housing Finance Law, the Public Housing Law, the former membership Corporations Law or the Not-for-Profit Corporation Law, except for those distinct programs operated by such projects which provide an organized program of supervision or personal care and as such are approved and certified by the department.

(d) Any person, partnership, corporation, organization, agency, government unit or other entity which operates an adult home is subject to the jurisdiction of the department, and must comply with these regulations or cease operation.

 

Doc Status: 
Complete

Section 487.2 - Definitions

487.2 Definitions. (a) An adult home is defined as an adult care facility established and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care and supervision to five or more adults unrelated to the operator. 

(b) A private proprietary adult home shall mean an adult home which is operated for compensation and profit. 

(c) Persons with serious mental illness means individuals who meet criteria established by the commissioner of mental health, which shall be persons who have a designated diagnosis of mental illness under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR, American Psychiatric Association, July 2000), and whose severity and duration of mental illness results in substantial functional disability.

(d) The following additional definitions shall apply to facilities subject to the Justice Center as defined at paragraph (8) of this subdivision (d):

(1) Abuse shall mean inappropriate physical contact with a resident of an adult care facility while the resident is under the supervision of the facility, which harms or is likely to harm the resident. Inappropriate physical contact includes, but is not limited to, striking, pinching, kicking, shoving, and bumping. "Abuse" shall, in addition, include those actions incorporated within the definitions physical abuse, sexual abuse, psychological abuse, deliberate inappropriate use of restraints, use of aversive conditioning, obstruction of reports of reportable incidents, and unlawful use or administration of a controlled substance all as defined in section 488 of the social services law. However, for purposes of reporting, psychological abuse need not be supported by a clinical assessment in order to be reported, so long as there is reasonable cause to suspect that such abuse has occurred.

(2) Neglect shall mean the failure to provide timely, consistent, safe, adequate and appropriate services, treatment and/or care to a resident of an adult care facility while the resident is under the supervision of the facility, including but not limited to: personal care, nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living. Neglect shall, in addition, include those actions incorporated within the definition of neglect set forth in section 488 of the social services law.

(3) Reasonable cause to suspect shall mean that, upon review of the circumstances, there is sufficient evidence for a person to believe that a reportable incident has occurred.

(4) Reportable incident shall include abuse, neglect, and significant incident as defined in this Part.

(5) Justice Center shall mean the New York State Justice Center for the Protection of People with Special Needs, as established pursuant to Chapter 501 of the Laws of 2012.

(6) Custodian means a director, operator, employee or volunteer of a facility or provider agency as defined in section 488 of the social services law; or a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to a facility or provider agency pursuant to contract or other arrangement that permits such person to have regular and substantial contact with individuals who are cared for by the facility or provider agency.

(7) Department shall mean the New York State Department of Health.

(8) Facility subject to the Justice Center shall mean adult homes having a capacity of eighty (80) or more beds, and in which at least 25% (twenty-five percent) of the residents are persons with serious mental illness as defined by section 1.03(52) of the mental hygiene law, but not including an adult home which is authorized to operate 55% (fifty-five percent) or more of its total licensed capacity of beds as assisted living program beds.

(9) Significant incident shall mean an incident, other than an incident of abuse or neglect, that because of its severity or the sensitivity of the situation may result in, or has the reasonably foreseeable potential to result in, harm to the health, safety or welfare of a person receiving services and shall include but shall not be limited to:

(i) conduct between persons receiving services, or between such persons and third parties other than a custodian, that would constitute abuse if committed by a custodian; or

(ii) conduct on the part of a custodian, which is inconsistent with a service recipient's individual treatment plan or individualized educational program, generally accepted treatment practices and/or applicable federal or state laws, regulations or policies and which impairs or creates a reasonably foreseeable potential to impair the health, safety or welfare of a person receiving services, including but not limited to:

(a) unauthorized seclusion, which shall mean the placement of a person receiving services in a room or area from which he or she cannot, or perceives that he or she cannot, leave at will;

(b) unauthorized use of time-out, which shall mean the use of a procedure in which a person receiving services is removed from regular programming and isolated in a room or area for the convenience of a custodian, or as a substitute for programming but shall not include the use of a time-out as an emergency intervention to protect the health or safety of the individual or other persons;

(c) except for the unlawful use or administration of a controlled substance, as provided for in paragraph (1) of this subdivision, the administration of a prescribed or over-the-counter medication, which is inconsistent with a prescription or order issued for a service recipient by a licensed, qualified health care practitioner, and which has an adverse effect on a service recipient. For purposes of this paragraph, "adverse effect" shall mean the unanticipated and undesirable side effect from the administration of a particular medication which unfavorably affects the well-being of a service recipient;

(d) inappropriate use of restraints, which shall mean any use of a restraint; or

(iii) Misappropriation of Property shall mean the theft, unauthorized use or removal, embezzlement or intentional destruction of the resident’s personal property, including but not limited to money, clothing, furniture, appliances, jewelry, works of art and such other possessions and articles belonging to the resident, regardless of monetary value.

(iv) Mistreatment, which shall mean confinement, isolation, intimidation, abandonment or use of physical restraints on a resident of an adult care facility while the resident is under the supervision of staff.

(v) any other conduct identified in regulations of the department, pursuant to guidelines or standards established by the Justice Center.

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016
Statutory Authority: 
Social Services Law, Sections 460-d, 461 and 461-e

Section 487.3 - General provisions

487.3 General provisions. (a) The operator of an adult home shall provide, through its employees and agents, an organized, 24-hour-a-day program of supervision, care and services which:

(1) meets the standards set forth in this Part;

(2) assures the protection of resident rights; and

(3) promotes the social, physical and mental well-being of the residents.

(b) The operator shall operate and maintain the facility in compliance with the regulations of the department and with applicable statutes and regulations of other State and local jurisdictions.

(c) Nothing contained within this Part, or Parts 485 and 486 of this Title, shall prohibit an operator from exceeding the requirements of these regulations within the definition of an adult home.

(d) An operator shall afford any officers, duly authorized employee or agents or any designee of the department access at any time to the residents, grounds, buildings and any records relating to resident care and services.

(e) The operator of a facility issued an operating certificate by the department shall maintain, make available for inspection and submit such statistical, financial or other information, records or reports, relating to the facility as the department may require.

(f) (1) The capacity of an adult home shall be limited to 200 beds.

(2) This limitation shall not apply to a facility certified for a larger capacity before September 1, 1984, except that no additional increases in capacity shall be authorized for such a facility.

(g) (1) Upon request by the operator, the department may waive nonstatutory requirements of this Part. An operator must request and receive written approval prior to instituting any alternative. Applications for approval must be submitted in writing to the appropriate regional office and shall include:

(i) the specific regulation for which a waiver is sought;

(ii) the reason the waiver is necessary; and

(iii) a description of what will be done to achieve or maintain the intended outcome of the regulation and to protect the health, safety and well-being of the residents.

(2) The department may require that the operator make physical plant modifications or adopt special methods or procedures to protect resident health and safety and shall grant written approval only upon determination that the proposed waiver will not adversely affect the health, safety and well-being of residents.

(3) Failure to adhere to the terms of the approved waiver shall result in rescission of the approval and imposition of penalties for the applicable regulation.

 

Doc Status: 
Complete
Effective Date: 
Wednesday, January 16, 2013

Section 487.4 - Admission standards

487.4 Admission standards. (a) An operator shall admit, retain and care for only those individuals who do not require services beyond those the operator is permitted by law and regulation to provide.

(b) An operator shall not exclude an individual on the sole basis that such individual is a person who primarily uses a wheelchair for mobility, and shall make reasonable accommodations to the extent necessary to admit such individuals, consistent with the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. and with the provisions of this section.

(c) An operator shall not accept nor retain any person who:

(1) is in need of continual medical or nursing care or supervision as provided by facilities licensed pursuant to article 28 of the Public Health Law, or licensed or operated pursuant to articles 19, 23, 29 and 31 of the Mental Hygiene Law;

(2) suffers from a serious and persistent mental disability sufficient to warrant placement in a residential facility licensed pursuant to article 19, 23, 29 or 31 of the Mental Hygiene Law;

(3) requires health or mental health services which are not available or cannot be provided safely and effectively by local service agencies or providers;

(4) causes, or is likely to cause, danger to himself or others;

(5) repeatedly behaves in a manner which directly impairs the well-being, care or safety of the resident or other residents, or which substantially interferes with the orderly operation of the facility;

(6) has a medical condition which is unstable and which requires continual skilled observation of symptoms and reactions or accurate recording of such skilled observations for the purposes of reporting to the resident's physician;

(7) refuses or is unable to comply with a prescribed treatment program, including but not limited to a prescribed medications regimen when such failure causes, or is likely to cause, in the judgment of a physician, life-threatening danger to the resident or others;

(8) is chronically bedfast;

(9) chronically requires the physical assistance of another person in order to walk;

(10) chronically requires the physical assistance of another person to climb or descend stairs, unless assignment on a floor with ground-level egress can be made;

(11) has chronic unmanaged urinary or bowel incontinence;

(12) suffers from a communicable disease or health condition which constitutes a danger to other residents and staff;

(13) is dependent on medical equipment, unless it has been demonstrated that:

(i) the equipment presents no safety hazard;

(ii) use of the equipment does not restrict the individual to his room, impede the individual in the event of evacuation, or inhibit participation in the routine activities of the home;

(iii) use of the equipment does not restrict or impede the activities of other residents;

(iv) the individual is able to use and maintain the equipment with only intermittent or occasional assistance from medical personnel;

(v) such assistance, if needed, is available from approved community resources; and

(vi) each required medical evaluation attests to the individual's ability to use and maintain the equipment;

(14) engages in alcohol or drug use which results in aggressive or destructive behavior; or

(15) is under 18 years of age; or, in a public adult home, under 16 years of age.

(d) An operator shall not admit or retain a number of persons in excess of the capacity specified on the operating certificate. No operator of an adult home with a certified capacity of eighty or more and a mental health census, as defined in section 487.13(b)(4) of this Part, of 25 percent or more of the resident population shall admit any person whose admission will increase the mental health census of the facility.

(e) An operator shall not admit an individual before a determination has been made that the facility program can support the physical, psychologicaland social needs of the resident.

(f) Such a determination shall be based upon:

(1) receipt and consideration of a medical evaluation;

(2) conduct of an interview between the administrator, or a designee responsible for admission and retention decisions, and the resident and the resident's representative(s), if any; and

(3) in the event that a proposed resident has a known history of chronic mental disability, or the medical evaluation or resident interview suggests such disability, then a mental health evaluation must be conducted.

(g) Each medical evaluation (DSS-3122 or an approved substitute) shall be a written and signed report from a physician, physician assistant or nurse practitioner which includes:

(1) the date of examination, significant medical history and current conditions, known allergies, the prescribed medication regimen, including information on the applicant's ability to self-administer medications, recommendations for diet, exercise, recreation, frequency of medical examinations and assistance needed in the activities of daily living;

(2) a statement that the resident is not medically or mentally unsuited for care in the facility;

(3) a statement that the resident does not require placement in a hospital or residential health care facility; and

(4) a statement that the physician, physician assistant or nurse practitioner has physically examined the resident within 30 days prior to the date of admission or, for required annual evaluations, within 30 days prior to the date of the report.

(h) Each mental health evaluation shall be a written and signed report, from a psychiatrist, physician, registered nurse, certified psychologist or certified social worker who is approved by the department in consultation with the Office of Mental Health, and who has experience in the assessment and treatment of mental illness, which includes:

(1) the date of examination;

(2) significant mental health history and current conditions, including whether the resident has a serious mental illness as defined in Section 487.2(c) of this Part;

(3) a statement that the resident's mental health needs can be adequately met in the facility and a statementthat the resident does not evidence need for placement in a residential treatment facility licensed or operated pursuant to article 19, 23, 29 or 31 of the Mental Hygiene Law;

(4) a statement that the person signing the report has conducted a face-to-face examination of the resident within 30 days of the date of admission or, for required annual evaluations, within 30 days of the date of the report.

(i) Each resident interview shall:

(1) include explanation of the conditions of residency, including but not limited to the admission agreement, resident rights and responsibilities, facility rules and regulations and the personal allowance protections available to Supplemental Security Income or HR recipients;

(2) ascertain that the facility program can:

(i) meet the physical needs and personal care needs of the resident, including dietary needs occasioned by cultural or religious practice or preference or medical prescription; and

(ii) meet the social needs of the resident through facility programs and the fostering and maintenance of family and community ties and associations; and

(3) be summarized in writing, including the date of the interview and identification of those present.

(j) Medical and mental health evaluations, if required, shall be conducted:

(1) within 30 days prior to the date of admission; and

(2) whenever a change in the resident's condition warrants, but no less than once in every 12 months.

(k) The operator shall assist a resident in obtaining any required evaluations.

(l) For any residents who cannot be retained under the conditions set forth in subdivision (c) of this section:

(1) the operator shall make persistent efforts to secure appropriate alternative placement and shall document such efforts;

(2) persistent efforts shall be defined as:

(i) assisting the resident or resident's representative with filing five applications for each such resident with appropriate facilities;

(ii) following up by telephone every two weeks on the status of the applications;

(iii) if an application is rejected, the operator shall assist the resident or resident's representative in filing an application to another facility within five working days of the date of rejection; and

(iv) if the resident is not placed, the operator must notify the regional office in writing, every 90 days from the filing of the first application, of the name of the resident and any pending and rejected applications.

(m) Notwithstanding subdivision (j) of this section, medical evaluations shall not be required of a competent adult who relies upon or is being furnished treatment by spiritual means through prayer, in lieu of medical treatment, in accordance with the tenets and practices of a recognized church or religious denomination of which the resident is a member or bona fide adherent. In such cases the operator shall:

(1) require documentation of the resident's standing as a member; and

(2) adhere to the admission and retention standards set forth in subdivision (c) of this section.

(n) The operator shall not admit nor accept for return an individual directly from a general or special hospital, psychiatric center, developmental center, skilled nursing or health-related facility, without a statement from the referral source which details significant medical conditions, prescribed health or mental health regimens and such psychosocial information as may be available to help the operator plan an adequate level of care for the resident. This statement may substitute for the medical or mental health evaluations if the requirements of subdivision (g) or (h) of this section are met.

(o) In facilities with a significant number of mentally disabled persons, the mental health organization or agency with which the operator has executed the agreement required by section 487.7(b) of this Part shall be afforded reasonable opportunity to participate in the admission or retention assessment of persons who require a mental health evaluation or who would be eligible for the mental health organization's services by reason of residency in the adult home. Such participation shall be solely for the purpose of assisting the operator to determine if the operator and available mental health services can meet the needs of the resident.

(p) An applicant shall receive at or prior to the admissions interview:

(1) a copy of the admission agreement;

(2) a copy of the statement of resident rights;

(3) a copy of any facility regulations relating to resident activities, office and visiting hours and like information; and

(4) if made available to the operator by the Long-Term Care Ombudsman Program, a fact sheet about the program and the listing of legal services or advocacy agencies made available by the department.

(q) Each applicant for admission shall have the opportunity to review a copy of the most recent report of inspection issued by the department to the facility.

(r) If the applicant/resident is sight-impaired or hearing-impaired or otherwise unable to comprehend English or printed matter, the operator shall arrange for conduct of the interview and transmission of the contents of the admission agreement, the statement of rights and responsibilities and facility information in a manner comprehensible to the applicant.

Doc Status: 
Complete
Effective Date: 
Wednesday, November 21, 2018
Statutory Authority: 
Social Services Law, Sections 461 and 461-l(5)

Section 487.5 - Resident protections

487.5 Resident protections. (a) Resident rights. 

(1) Each operator shall adopt a statement of the rights and responsibilities of residents, and shall treat each resident in accord with the principles contained in the statement. 

(2) A copy of the statement of rights issued by the department shall be posted in a conspicuous location in a public area of the facility. 

(3) At a minimum, the operator shall afford each resident the following rights and protections: 

(i) A resident's civil rights shall not be infringed. 

(ii) A resident's religious liberties shall not be infringed. 

(iii) A resident shall have the right to have private, written and verbal communications with anyone of his/her choice. 

(iv) A resident shall have the right to present grievances on his/her behalf, or the behalf of other residents, to the administrator or facility staff, the department or other government officials or any other parties without fear of reprisal. 

(v) A resident shall have the right to join with other residents or individuals to work for improvements in resident care. 

(vi) A resident shall have the right to manage his or her own financial affairs. 

(vii) A resident shall have the right to privacy in his/her own room and in caring for personal needs. 

(viii) A resident shall have the right to confidential treatment of personal, social, financial and health records. 

(ix) A resident shall have the right to receive courteous, fair and respectful care and treatment at all times, and shall not be physically, mentally or emotionally abused, or subject to any occurrence which would constitute a reportable incident. 

(x) A resident shall not be restrained nor locked in a room at any time. 

(xi) A resident shall have the right to receive and send mail or any other correspondence unopened and without interception or interference. 

(xii) A resident shall be permitted to leave and return to the facility and grounds at reasonable hours. 

(xiii) A resident shall not be obliged to perform work. 

(xiv) A resident shall not be permitted, or obliged, to provide any operator or agent of the operator any gratuity in any form for services provided or arranged for in accord with law or regulation. 

(xv) A resident must have the right to have his/her version of the events leading to an accident or incident in which such resident is involved included on the reports of such accidents or incidents. 

(b) 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 be addressed, and that a written report addressing the problems, issues or suggestions be sent to the organization. 

(c) Grievances and recommendations. (1) The operator shall develop written procedures and shall establish and maintain a system to receive and respond to grievances and recommendations for change or improvement in facility operations and programs which are presented by residents. 

(2) The system shall include: 

(i) identification of staff to whom grievances and recommendations may be made; 

(ii) procedures to submit grievances and recommendations which also include a procedure for confidential treatment of grievances and recommendations if requested; 

(iii) procedures for evaluation and the initiation of action or resolution which are timely and protect the rights of those involved; and 

(iv) procedures for informing residents of action and resolution. 

(3) The operator shall post the procedures for the submission of grievances and recommendations, including the identity of staff to whom the grievances and recommendations may be addressed. The operator of a facility subject to the Justice Center shall also ensure that the telephone number for the Justice Center's hotline for the reporting of reportable incidents is conspicuously displayed in areas accessible to residents, staff, volunteers, and contractors. 

(d) Admission agreements. (1) (i) Each operator shall execute with and provide to each resident, at or prior to admission and periodically thereafter as changes necessitate, a written admission agreement which shall constitute the entire agreement of the parties and shall contain at least the provisions required by paragraph (6) of this subdivision. 

(ii) The admission agreement shall be dated and signed by the operator, the resident and, if appropriate, another person acting as an agent for the resident. 

(2) The operator shall comply with all provisions of the admission agreement. 

(3) Any modification or provision of the agreement which is not in compliance with law or regulation shall be null and void. 

(4) Any waiver by the resident of any provision of the admission agreement required by law or regulation shall be null and void. 

(5) The admission agreement shall be printed in legible, easily read type. 

(6) The admission agreement shall, at a minimum: 

(i) state the effective date; 

(ii) state the due dates for payment; 

(iii) enumerate the services, material, equipment and food required by law or regulation; 

(iv) state the basic monthly, weekly or daily payment for services, material, equipment and food required by law or regulation; 

(v) enumerate in detail a schedule of any other services, materials, equipment and food which the operator agrees to furnish and supply to the residents during the period of the admission agreement. Such schedule shall include the basis for charges for such supplemental services and supplies; 

(vi) guarantee that charges for such supplemental services and supplies shall be made only at resident option and only for services and supplies actually provided to the resident; 

(vii) detail the conditions and procedures under which the operator may adjust the basic monthly, weekly or daily rate or charges for supplemental services and supplies. Such conditions are limited to: 

(a) the express written approval and authority of the resident or legal representative; or 

(b) in the event of any emergency arising which affects such resident, additional charges may be assessed for the benefit of such residents as are reasonable and necessary for services, material, equipment and food furnished and supplied during such emergency; or 

(c) the provision of additional care, services or supplies, upon the express order of the primary physician of the resident; or 

(d) the provision of 30 days' written notice to the resident and his/her representative, in any, of additional charges and expenses due to increased cost of maintenance and operation; 

(viii) state the actual rate charged the resident and accepted by the operator in satisfaction of the admission agreement; 

(ix) guarantee that neither the operator, administrator nor any employee or agent shall accept any remuneration or gratuity in any form for any services provided or arranged for as specified by statute, regulation or agreement; 

(x) enumerate any and all money, property or things of value given or promised to be given to the operator, on admission or at any other time, including any agreements made by third parties for payments for the benefit of a resident; 

(xi) state that the operator offers to each resident who is a recipient of SSI or HR, or representative payee, an opportunity to place 
personal funds for incidental use in a facility-maintained resident account, and further indicate resident and representative payee acceptance or rejection of this offer; 

(xii) state that a signator other than the resident, who does not choose to place the resident's personal allowance funds in a facilitymaintained account, will comply with the Supplemental Security Income 

(SSI) or Home Relief (HR) personal allowance requirement; 

(xiii) state charge(s), which may not exceed the basic rate, to be levied for reserving a residential space in the event of temporary absence of the resident, and the length of time the reservation shall apply; 

(xiv) state the terms and conditions under which the resident or operator may terminate occupancy; 

(xv) state the grounds under which the operator may terminate the admission agreement without the consent of the resident; 

(xvi) detail the operator's obligation to: 

(a) give at least 30 days' written notice to the resident, the resident's next of kin and the person designated in the admission agreement as the responsible party, specifying the grounds for termination and date of discharge and advising that the resident has the right to object to, and contest, involuntary termination; 

(b) provide a list of free local legal services and advocacy resources, including the local social services district; and 

(c) obtain prior court approval if the resident objects to the involuntary termination; 

(xvii) provide for a prorated refund of advance payments, based on the rate, the actual days of residency, bed reservation and the terms for notice; 

(xviii) guarantee that, upon discharge or transfer, the resident or the resident's representative shall receive a final written statement of his or her payment account and personal allowance account, and be immediately returned any monies, property or things of value held in trust or in custody by the operator or which come into possession of the operator after discharge or transfer; 

(xix) state that the resident agrees to provide the operator, prior to admission and at least every 12 months thereafter, a dated and signed medical evaluation which conforms to the requirements of section 487.4(f) of this Part; 

(xx) state that the resident agrees to inform the operator of change in health status or medications, as they occur; 

(xxi) state that the resident agrees to obey all reasonable rules of the facility and to respect the rights and property of the other residents; and 

(xxii) state that waiver by a resident of any provision of the admission agreement is null and void. 

(e) After September 1, 1984, an operator shall not enter into any contract or agreement with the resident or the resident's next of kin or sponsor for life care of the resident in the adult home. 

(f) Termination of admission agreements. (1) Every resident shall have the right to terminate his admission agreement. 

(2) Voluntary and mutual termination of the admission agreement. Where notice of termination has been given by the operator and the resident leaves voluntarily, it is not necessary for the operator to commence a court proceeding. 

(3) The operator of an adult home shall, in order to terminate the admission agreement of a resident and discharge him/her from the facility, give at least 30 days' written notice, on a form prescribed by the department, to: 

(i) the resident; 

(ii) the resident's next of kin, if known; and 

(iii) any person designated in the admission agreement as the responsible party, other than next of kin, if any. 

(4) The termination notice must indicate: 

(i) the reason for termination; 

(ii) the date of termination; 

(iii) that the resident has the right to object to the termination of the agreement and the subsequent discharge; 

(iv) that, if the resident does object, he may remain in the facility while the operator commences a court proceeding, and unless the court finds in favor of the operator. 

(5) In addition to the prescribed termination notice, the operator shall furnish to the resident a list of agencies, including the LongTerm Care Ombudsman Program, providing free legal services and agencies engaged in resident advocacy services within the geographic vicinity of the facility. Such lists must be provided or approved by the department and shall include names, addresses and telephone numbers. 

(6) A copy of the termination notice shall be filed by the operator with the appropriate regional office within five days after the notice is served upon the resident. 

(7) Transfer of a resident without giving at least 30 days' notice may be arranged by the operator under the following circumstances: 

(i) When a resident develops a communicable disease, medical or mental condition, or sustains an injury such that continual skilled medical and nursing services are required, arrangements shall be made by the operator for appropriate professional evaluation and transfer to an appropriate facility. 

(ii) In the event that a resident's behavior poses an imminent risk of death or imminent risk of serious physical harm to himself or others, the operator shall arrange for transfer of the individual to an appropriate and safe location. 

(8) In the event that a resident's behavior poses an imminent risk of death or serious physical harm to himself or any other person, the operator should, whenever possible, seek the assistance of a peace officer, acting pursuant to his special duties, or a police officer who is a member of an authorized police department or force or a sheriff's department, in transferring the resident to a safe location. 

(9) When the basis for a transfer no longer exists, and the resident is deemed appropriate for placement in the facility, the operator shall readmit him, even if involuntary termination proceedings have begun. 

(10) Transfer of a resident without notice of termination shall not be deemed a termination of the admission agreement. Such removal shall not relieve the operator from the requirement of proceeding, subsequent to the removal of the resident, to terminate the admission agreement. 

(11) When the operator proceeds to terminate the admission agreement of a resident transferred without notice of termination, he shall insure that the written notice shall be hand-delivered to the resident at the location to which he has been removed. If such hand delivery is not possible, then notice shall be given by any of the methods provided by law for personal service upon a natural person (section 308, Civil Practice Law and Rules). 

(12) When a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law, and is providing for the orderly transfer of all residents in the facility to other facilities or is making other provisions for the residents' continued safety and care, the receiver may terminate admission agreements and arrange for the transfer of all residents to appropriate settings without regard to the notice and court review requirements of this subdivision. 

(13) Notwithstanding paragraph (12), a receiver shall adhere to the requirements of this subdivision in any instance where termination of an admission agreement is not directly related to the closure of a facility. 

(14) No operator shall terminate an admission agreement and involuntarily discharge a resident, except for the following reasons: 

(i) the resident requires continual medical or nursing care which the adult care facility is not licensed to provide; 

(ii) the resident's behavior poses imminent risk of death or imminent risk of serious physical harm to himself or anyone else; 

(iii) the resident fails to make timely payment for all authorized charges, expenses and other assessments, if any, for services, including use and occupancy of the premises, materials, equipment and food which the resident has agreed to pay pursuant to the resident's admission agreement; 

(iv) the resident repeatedly behaves in a manner that directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility; 

(v) the facility has had its operating certificate limited, revoked or temporarily suspended, or the operator has voluntarily surrendered the operating certificate of the facility to the department; or 

(vi) a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law, and is providing for the orderly transfer of all residents in the facility to other facilities or is making other provision for the residents' continued safety and care. 

(15) (i) If failure to make timely payment resulted from an interruption in the receipt by the resident of any public benefits to which he is entitled, no admission agreement may be involuntarily terminated unless the operator, during the 30-day notice period, assists the resident in obtaining such benefits, or any other available supplemental public benefits. 

(ii) Documented failure of the resident to cooperate with such efforts by the operator shall be considered evidence of assistance. 

(16) If the resident indicates to the operator, within 30 days of receipt of notice, that he objects to the termination of the agreement, or if at the end of 30 days the resident remains in the facility, the operator shall institute a special proceeding pursuant to section 461-h of the Social Services Law prior to termination and discharge. 

(17) While legal action is in progress, the operator shall not: 

(i) seek to amend the admission agreement in effect as of the date of the notice of termination; 

(ii) fail to provide any of the care and services required by department regulations and the admission agreement; or 

(iii) engage in any action to intimidate or harass the resident. 

(18) Both the resident and the operator are free to seek any other judicial relief to which they may be entitled. 

(19) The operator shall assist any resident, proposed to be transferred or discharged pursuant to this subdivision, to the extent necessary to assure, whenever practicable, the resident's placement in care settings which are adequate, appropriate and consistent with his wishes. 

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Effective Date: 
Wednesday, February 10, 2016

Section 487.6 - Resident funds and valuables

487.6 Resident funds and valuables. (a) Funds.

(1) The operator shall issue a receipt to a resident for any funds received for:

(i) payment of the facility rate;

(ii) payment of appropriate supplemental charges;

(iii) payment of funds owed to the operator by the resident;

(iv) deposits to a personal allowance account established pursuant to section 485.12 of this Title;

(v) any other funds held in custody for the resident; and

(vi) any other funds received by the operator from the resident.

(2) An operator who receives any funds from a resident shall issue a signed receipt to the resident which contains the following information:

(i) the date of the receipt;

(ii) the amount of funds received;

(iii) the purpose of the transaction;

(iv) the name of the resident; and

(v) the signature of the person receiving the funds.

(3) Resident personal allowance accounts or other personal funds shall not be mingled with the personal funds of the operator or the operating funds of the facility, nor become an asset of the operator.

(4) Personal allowance accounts and accounts for other resident funds shall be kept separate and distinct from each other and from any other account(s).

(5) Upon change of operator, the current operator shall transfer all records to the proposed operator and provide the proposed operator with a written statement of all resident personal allowance accounts, and other resident accounts with funds held in custody. This statement shall document that the balance being transferred in each resident fund account is true and accurate as of the proposed date of transfer, and shall be confirmed by resident signature(s).

(6) Upon change of operator, the new operator shall assume, in writing, responsibility for account balances of funds of residents turned over upon the change of operator, together with responsibility for all requirements of this section.

(7) Records of all transactions shall be maintained as part of the facility records.

(b) Personal allowance. (1) Each resident who is receiving Supplemental Security Income (SSI) or Home Relief (HR) benefits, and who is entitled to a monthly personal allowance by section 131-o of the Social Services Law or subdivision 352.8(c) of this Title, shall receive that allowance in accordance with the requirements of section 485.12 of this Title and subdivision (c) of this section.

(2) In the event that the resident negotiates the full SSI or HR check to the operator, distribution of the personal allowance shall be made to the resident within two banking days of the transaction.

(3) The operator shall obtain written acknowledgment monthly from each resident, confirming receipt of his/her personal allowance.

(c) Personal allowance accounts. (1) At the time of admission and at the time of the first increase in the personal allowance occurring in any calendar year, the operator shall, in writing, offer an SSI or HR recipient or the recipient's representative, if any, an opportunity to place personal allowance funds for incidental use in a facility-maintained account.

(2) The operator shall provide for the safekeeping and accountability of a personal allowance account.

(3) The operator shall hold resident funds in custody for the sole use of the resident and shall not use these funds for any other purpose.

(4) No service fee shall be charged by the operator for maintaining a personal allowance account for a resident who is in receipt of SSI or HR.

(5) Residents shall have access to personal allowance accounts at least four hours daily, Monday through Friday. The access schedule must be posted and may not be changed without five days' advance notice.

(6) Upon request, each resident shall have the opportunity, during scheduled access hours, to examine his/her personal allowance account record including deposits, withdrawals and current balance.

(7) If the operator deposits resident personal allowance funds in individual or collective interest-bearing bank accounts, the operator must develop a written procedure for the equitable distribution of interest to each resident's account. Such distribution shall be made quarterly.

(8) The operator shall maintain individual records for each resident who has a personal allowance account, showing all deposits, withdrawals and the current balance.

(9) The operator shall document all such personal allowance transactions on a personal allowance ledger (DSS-2854) and maintain all paid bills, vouchers and other appropriate payment and receipt documentation in the manner prescribed by the department.

(10) The operator shall reconcile personal allowance account balances to the total personal allowance funds maintained by the facility at least monthly. The reconciliation requirement shall be met by maintaining a personal allowance summary (DSS-2855).

(11) No alternative system of recordkeeping for resident personal allowance accounts may be substituted for the above without the prior written consent of the department.

(12) At least quarterly, the operator shall give each resident who has a personal allowance account, a statement showing total deposits, withdrawals and current balance of the resident's account and secure the resident's acknowledgment, in writing, of the accuracy of the statement.

(13) The operator shall not require a resident to maintain a personal allowance account at the facility.

(14) The operator shall not be required to maintain any personal allowance account in amounts in excess of the SSI resource limit.

(15) The resident may terminate the personal allowance account at any time.

(d) Other funds held in custody. (1) The operator may offer an SSI or HR recipient or any other resident the opportunity to place funds other than personal allowance funds provided pursuant to section 485.12 of this Title in the operator's custody.

(2) Such funds shall not be mingled with any personal allowance funds maintained pursuant to subdivision (b) of this section.

(3) The operator shall maintain records and provide for the security of all funds which the resident has voluntarily given to the operator and the operator has voluntarily accepted to hold in his/her custody or to exercise control over.

(4) The operator shall obtain written authorization from the resident to hold the resident's funds.

(5) Records of all transactions shall be maintained as part of the facility records.

(e) Resident property and valuables. (1) The operator may offer a resident the opportunity to place property or items of value in the operator's custody.

(2) The operator shall maintain inventory records and provide for the security of all property or items of value which the resident has voluntarily given to the operator to hold in custody or to exercise control over.

(3) The operator shall obtain written authorization from the resident to hold property or items of value, and shall provide each resident with a receipt.

(4) Resident property or items of value shall be segregated from the assets of the operator.

(5) Records of all transactions shall be maintained as part of the facility records.

(f) Return of resident funds and valuables. (1) At the time of discharge or termination of the admission agreement, but in no case more than three business days after the resident leaves the facility, the operator shall provide the resident or the resident's representative with:

(i) a final written accounting of the resident's payment and personal fund accounts;

(ii) a check for the outstanding balance, if any; and

(iii) any property or things of value held in trust or in custody by the operator.

(2) The operator shall refund, on the basis of a per diem proration, any advance payment(s) made by the resident.

(3) The operator shall return to the resident, representative or other appropriate individual or agency, any property or items of value which come into the possession of the operator after discharge or transfer.

(4) Upon the death of a resident, the operator shall contact the next of kin or legal representative and arrange for the transfer of all property of the individual. When the whereabouts of the next of kin or legal representative are unknown, the operator shall contact the appropriate Surrogate's Court to arrange for the transfer.

 

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Section 487.7 - Resident services

487.7 Resident services. (a) The operator shall be responsible for the provision of resident services, which shall include, at a minimum, room, board, housekeeping, supervision, personal care, case management and activities.

(b) The operator of a facility in which at least 25 percent of the resident population or 25 residents, whichever is less, are mentally disabled persons who have been released or discharged from facilities operated or certified by an Office of the Department of Mental Hygiene must arrange, by written agreement, with the outpatient or after-care service of the nearest State psychiatric or developmental facility, the local community mental health service, or a community support service provider, for assistance with the assessment of mental health needs, the supervision of general mental health care and the provision of related case management services for those residents enrolled in mental health programs.

(c) (1) The agreement developed in satisfaction of subdivision (b) of this section shall be reviewed and approved, prior to execution, by the appropriate regional offices of the department and the Department of Mental Hygiene.

(2) The agreement shall address the role and responsibility, if any, of each party for:

(i) pre- and post-admission assessment and screening, except that final decisions on admission and retention shall remain the responsibility of the operator;

(ii) the development of service plans, the provision of or arrangements for services;

(iii) securing emergency mental health services and rehospitalization;

(iv) coordination of services within the facility and the exchange of information;

(v) provision of suitable and adequate program space; and

(vi) resolving conflicts or disagreements on individual cases.

(3) The agreement shall not limit or supersede the authority or the responsibilities of either party.

(d) Supervision. (1) Supervision services shall include, but are not limited to:

(i) maintaining knowledge of general whereabouts of each resident;

(ii) recording a daily census (DSS-2900);

(iii) monitoring residents to identify abrupt or progressive changes in behavior or appearance which may signify the need for assessment and service;

(iv) monitoring and guidance to assist residents in performing basic activities of daily living, including:

(a) attendance at meals and maintenance of appropriate nutritional intake;

(b) performance of personal hygiene and grooming activities;

(c) participation in facility and community programs; and

(d) performance of basic money management and fulfillment of service needs;

(v) surveillance of grounds, facility, and activities of residents and staff to protect residents from harm to person and property;

(vi) monitoring emergency call systems within the facility;

(vii) handling individual emergencies, or need for assistance, including arranging for medical or other services;

(viii) conduct and supervision of evacuations and fire and evacuation drills;

(ix) implementation of the disaster and emergency plan; and

(x) investigation by the administrator or case manager of incidents involving resident endangerment, injury, occurrences which would constitute reportable incidents or death.

(2) All employees shall be trained in the means of rapidly evacuating the building.

(3) At least one staff person on each shift shall be designated as responsible for the conduct and supervision of any evacuation or implementation of the disaster and emergency plan.

(4) In the event that a resident is absent from the facility and the resident's whereabouts are unknown, the operator shall initiate efforts to find the resident and, if the absence exceeds 24 hours:

(i) immediately notify the resident's next of kin or representative;

(ii) immediately notify the appropriate law enforcement agency;

(iii) notify the appropriate regional office of the department on the first available working day; and

(iv) send a copy of the Incident Report to the appropriate regional office of the department within five working days.

(5) In the event that a resident is unable or unwilling to consume regular meals for two consecutive days, the operator shall immediately notify the resident's personal physician, act on the physician's instruction, and note the call and instructions in the resident's record.

(6) (i) In the event that a resident requires emergency assistance because of illness or injury, the operator shall:

(a) protect the resident's safety and comfort;

(b) secure necessary emergency medical assistance; and

(c) if necessary, arrange for transfer to an appropriate medical facility.

(ii) In the event that a resident becomes ill or displays a progressive deterioration of health or behavior, the operator shall:

(a) protect the resident's safety and comfort;

(b) obtain medical evaluation and services; and

(c) if necessary, arrange for transfer to an appropriate medical facility.

(iii) In the event of illness or injury, the operator shall also:

(a) notify the resident's personal physician or, in the event such physician is not available, a qualified alternate;

(b) notify the resident's representative, or next of kin, if known;

(c) upon transfer of a resident to a health, mental health or other residential care facility, send an approved transfer form (or copy of the DSS-3122 medical evaluation and the personal data sheet) and such other information as the receiving facility requests and the operator is required to maintain;

(d) in emergency transfers, the information required in clause (c) of this subparagraph may be telephoned to the receiving facility and written information sent within 72 hours; and

(e) make a notation of the illness or accident and transfer, if any, in the resident's record.

(7) In the event that a resident exhibits behavior which constitutes a danger to self or others, the operator shall:

(i) arrange for appropriate professional evaluation of the resident's condition;

(ii) if necessary, arrange for transfer of the individual to a facility providing the proper level of care; and

(iii) notify the resident's representative, or next of kin, if known.

(8) In the event of the death of a resident, the operator must:

(i) immediately take necessary action to notify the resident's next of kin or representative, if known;

(ii) immediately take necessary action to notify the appropriate local authorities;

(iii) immediately report the death to the appropriate regional office of the department of health by telephone and submit a copy of the Incident Report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the death, and

(iv) submit a report to the State Commission on Quality of Care for the Mentally Disabled, on a form prescribed by the Commission, if the resident had at any time received services from a mental hygiene service provider. Such form must be received by the Commission within twenty-four hours of the death.

(9) If a resident attempts suicide, the operator must:

(i) immediately report the attempted suicide to the appropriate regional office of the department of health by telephone and submit a copy of the Incident Report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the attempted suicide, and

(ii) submit a report to the State Commission on Quality of Care for the Mentally Disabled, on a form prescribed by the Commission, if the resident had at any time received services from a mental hygiene service provider. Such form must be received by the Commission within twenty-four hours of the attempted suicide.

(10) If it is believed that a felony crime may have been committed by or against a resident, the operator must immediately report the occurrence to the appropriate regional office of the department of health by telephone and submit a copy of the Incident Report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the occurrence. The operator also must notify an appropriate law enforcement authority as soon as possible but at least within twenty-four hours.

(11) The operator must prepare an Incident Report (DSS-3123) whenever:

(i) a resident's whereabouts have been unknown for more than 24 hours;

(ii) a resident assaults or injures, or is assaulted or injured by another resident, staff or others;

(iii) a resident attempts or commits suicide;

(iv) there is a complaint or evidence of resident abuse;

(v) a resident dies;

(vi) a resident behaves in a manner that directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility;

(vii) a resident is involved in an accident on or off the facility grounds which results in such resident requiring medical care, attention or services; or

(viii) it is believed that a felony crime may have been committed by or against a resident.

(12) The operator must:

(i) place a copy of the Incident Report (DSS-3123) in the resident's individual record;

(ii) maintain a chronological log or record of all Incident Reports (DSS-3123) prepared, which includes identification of the resident or residents involved and the type of incident; and

(iii) submit a copy of Incident Reports (DSS-3123) required in paragraph (11) of this subdivision to the appropriate regional office of the Department.

(13) The operator must include the resident's version of the events leading to an accident or incident involving such resident, unless the resident objects, on all required Incident Reports (DSS-3123).

(14) If the facility falls within the definition of a facility as defined in section 488(4) of the Social Services Law, the operator shall immediately upon discovery, orally or electronically inform the Justice Center, as required by the Justice Center, of any occurrence constituting a reportable incident, including the name, title and contact information of every person known to have the same information as the person reporting concerning the reportable incident. Such report must be received by the Justice Center within twenty-four hours of the discovery of such occurrence.

(e) Personal care. (1) Each resident shall be provided such personal care as is necessary to enable the resident to maintain good personal hygiene, to carry out the activities of daily living, to maintain good health, and to participate in the ongoing activities of the facility.

(2) Personal care functions shall include direction and some assistance with:

(i) grooming, including care of hair, shaving and ordinary care of nails, teeth and mouth;

(ii) dressing;

(iii) bathing;

(iv) toileting;

(v) walking and ordinary movement from bed to chair or wheelchair;

(vi) eating;

(vii) taking and recording weights monthly; and

(viii) assisting with self-administration of medications, as defined in subdivision (f) of this section.

(3) Personal care functions to participate in the ongoing activities of the facility shall include assistance to:

(i) use central dining;

(ii) consume meals; and

(iii) participate in the activities program.

(4) Residents shall not be permitted, except as may be necessary for the treatment of a short-term illness, to be confined to their room or bed.

(5) Commodes shall not be permitted, except as may be necessary for a short-term illness or for night use as a safety measure as confirmed by the written order of a physician.

(6) Residents shall not be provided in-room tray services, except as may be necessary for a short-term illness.

(7) Physical restraints, i.e., any apparatus which prevents the free movement of a resident's arms or legs, or which immobilizes a resident and which the resident is unable to remove, shall not be used.

(8) An operator may set up a sick bay, or isolation area, to serve residents who have short-term illnesses, provided that:

(i) the combined occupancy of the sick bay and the rest of the facility does not exceed the certified capacity of the facility; and

(ii) the sick bay is not used for a resident who is inappropriate for continued retention in the adult home.

(9) The operator shall establish a system which assures that information regarding incidents or changes in residents' conditions affecting their need for personal care or supervision is available on an ongoing basis to all shifts.

(f) Medication management. (1) Each resident capable of self-administration of medication shall be permitted to retain and self-administer medications, provided that:

(i) the resident's physician attests, in writing, that the resident is capable of self-administration; and

(ii) the resident keeps the operator informed of all medications being taken, including name, route, dosage, frequency, times, and any instructions, including any contraindications, indicated by the physician.

(2) Residents capable of self-administration are those who are able to:

(i) correctly read the label on the medication container;

(ii) correctly interpret the label;

(iii) correctly ingest, inject or apply the medication;

(iv) correctly follow instructions as to the route, time, dosage and frequency;

(v) open the container;

(vi) measure or prepare medications, including mixing, shaking and filling syringes; and

(vii) safely store the medication.

(3) A resident needing assistance with self-administration is one who needs assistance to properly carry out one or more of the activities listed in paragraph (2) of this subdivision.

(4) Assistance with self-administration shall include assistance with any activity which the resident would ordinarily be capable of carrying out pursuant to paragraph (2) of this subdivision.

(5) For residents in need of supervision and assistance, the operator shall establish a system for staff to:

(i) provide the resident with the proper dosage of medication at the designated time; and

(ii) observe and record that the resident takes the medication.

(6) In any system for supervision and assistance, removal of a dose from the container, or measurement or preparation of medications, must be performed by the person providing assistance with intake, except that insulin syringes may be prefilled by a nurse.

(7) Staff shall not be permitted to administer injectable medications to a resident; except that staff holding a valid license from the State of New York Education Department authorizing them, among other things, to administer injectable medications, may do so, provided that the injectable medication is one which licensed health care providers would customarily train a patient or his family to administer.

(8) If a resident refuses to take medications or appears unable to independently administer medications, the operator shall notify the prescribing physician and, if different, the primary physician.

(9) Under no circumstances shall staff make a change in the dosage or schedule of administration of medication without the prior written authorization of a physician or, in case of an emergency, by telephone with written confirmation from the physician within seven days.

(10) If medication is prescribed or discontinued by someone other than the resident's primary physician, the operator shall notify the primary physician within one business day to advise of the medication and dosage prescribed or discontinued and shall note the call or retain a copy of the correspondence in the resident's record.

(11) Storage of medications. (i) Medication shall be kept in a secure storage area at all times, whether kept by a resident or kept by the operator for the resident, except when required to be kept by a resident on his person for frequent or emergency use.

(ii) Secure storage shall mean an area or a cabinet which cannot be removed or entered at will, and which cannot be opened except by a key.

(iii) An operator retaining controlled substance prescriptions for residents shall first obtain a class 3a controlled substance license as an institutional Dispenser, Limited from the Department of Health. Standards for storage and recording set forth by the Department of Health shall be applicable.

(iv) Drugs for external use shall be stored separately from internal and injectable medications.

(v) Refrigerators used for the storage of pharmaceuticals shall not be used for the storage of food or beverages, unless the drugs are stored in a separate, locked compartment.

(vi) Medications shall not be emptied from one container into another, except when necessary to enable a resident to take medications during temporary absences from the facility.

(vii) Directions on labels shall not be changed by anyone other than a physician or pharmacist. When a change in dosage or schedule has been made, the container must be tagged until the label is corrected. The label must be corrected within 30 days of the change.

(viii) Stock supplies of prescription medications are prohibited.

(ix) Stock supplies of nonprescription over-the-counter items for use in self-medication may be maintained.

(x) Prescribed or dated medication shall be current.

(xi) Any medication which has been prescribed, but is no longer in use by a resident, shall be destroyed or disposed of in accordance with the Public Health Law, unless the resident's physician requests that the medication be discontinued for a specific temporary period.

(12) Recording for medications. (i) Information on the medication regimen of each resident shall be retained on file in a manner which assures both resident privacy and accessibility, for assistance and supervision or in time of emergency.

(ii) The following information shall be maintained for each resident:

(a) the person's name;

(b) identification of each medication;

(c) the current dosage, frequency, time and route of each medication;

(d) the physician's name for each prescribed medication;

(e) the dates of each prescription change;

(f) any contraindications noted by the physician;

(g) the type of supervision and assistance, if any, needed by the resident; and

(h) a record of assistance.

(iii) When a resident is assisted in taking medications, the name of the resident, the medication, the staff assisting and the date and time of assistance shall be recorded. Recording shall occur at the time of assistance to each resident. In no event shall recording be done by a person who has not observed the taking of the dose.

(g) Case management. (1) Case management services shall include:

(i) initial and periodic evaluation, at least once every 12 months, of the needs of a resident and of the capability of the facility program to meet those needs;

(ii) orientating a new resident and family to the daily routine;

(iii) assisting each resident to adjust to life in the facility;

(iv) assisting each resident to maintain family and community ties and to develop new ones;

(v) encouraging resident participation in facility and community activities;

(vi) establishing linkages with and arranging for services from public and private sources for income, health, mental health and social services;

(vii) assisting residents in making application for, and maintaining, income entitlements and public benefits;

(viii) assisting the resident in obtaining and maintaining a primary physician or source of medical care of choice, who is responsible for the overall management of the individual's health and mental health needs;

(ix) assisting the resident in making arrangements to obtain services, examinations and reports needed to maintain or document the maintenance of the resident's health or mental health, including:

(a) health and mental health services;

(b) dental services; and

(c) medications;

(x) providing information and referral;

(xi) coordinating the work of other case management and service providers within the facility;

(xii) assisting residents in need of alternative living arrangements to make and execute sound discharge or transfer plans; and

(xiii) assisting in the establishment and operation of a system to enable residents to participate in planning for change or improvement in facility operations and programs and to present grievances and recommendations.

(2) Each resident shall be provided such case management services as are necessary to support the resident in maintaining independence of function and personal choice.

(3) The operator shall establish a system of recordkeeping which documents the case management needs of each resident and records case management activities undertaken to meet those needs.

(4) The operator and case management staff within the facility shall utilize and cooperate with external service providers.

(5) The operator shall:

(i) provide, without charge, space for residents to meet in privacy with service providers;

(ii) not inhibit access to individual residents who request services;

(iii) identify persons in need of services and assist external service providers in establishing a relationship with these residents;

(iv) work with these service providers in executing a plan for service for individual residents; and

(v) assist in arranging for transportation as necessary to ensure that residents are able to attend required services provided in an external location.

(h) Activity services. (1) The operator shall maintain an organized and diversified program of individual and group activities which will enable each resident to engage in cultural, spiritual, diversional, physical, political, social and intellectual activities within the facility and the community, in order to sustain and promote an individual's potential and a sense of usefulness to self and others.

(2) Activities services shall include, but not be limited to:

(i) direct provision, within the facility, of programs and activities for group and individual participation;

(ii) arrangement for provision of program and activities within the facility by community groups and service providers;

(iii) arrangement for resident participation in community-based and community-sponsored activities; and

(iv) arrangement for transportation or such other resources as are necessary to enable residents to participate in community activities.

(3) Activities shall be planned and available to each resident for a minimum of 10 hours per week.

(4) Activities shall be scheduled during evenings and weekends as well as during the weekday.

(5) A monthly schedule of activities shall be prepared one week in advance of its proposed implementation, and amended to reflect changes as they occur.

(6) Activities scheduling shall take into account and reflect the age, sex, physical and mental capabilities, interests and the cultural and social background of the residents.

(7) Each activities schedule shall include:

(i) individual, small group and large group activities;

(ii) facility-based and community activities;

(iii) physical exercise or other physical activities;

(iv) intellectual activities;

(v) social interaction; and

(vi) opportunities for both active and passive resident involvement.

(8) Each activities schedule shall identify the location, time, the provider of each activity and a facility staff contact person responsible for or knowledgeable about each activity.

(9) The current schedule of activities shall be conspicuously posted in a public area accessible to all residents and visitors.

(10) A record of the schedule of activities, as planned and as implemented, shall be maintained for six months:

(11) The operator shall provide equipment and supplies sufficient to implement the program of activities.

(12) Accommodations and space shall be provided for activity and socialization services in accordance with section 487.11 of this Part.
 

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016
Statutory Authority: 
Social Services Law, Section 460-d

Section 487.8 - Food service

487.8 Food service. (a) The operator shall provide meals which are balanced, nutritious and adequate in amount and content to meet the daily dietary needs of residents.

(b) The operator shall provide at a minimum:

(1) three meals a day, served at regularly scheduled times; and

(2) a nutritious evening snack.

(c) Information on each resident's prescribed dietary regimen and food allergies shall be available in the food service area and shall be used in the planning, preparation and service of resident meals and snacks.

(d) Menu planning. (1) Menus for regular and modified diets and snacks are to be planned to furnish sufficient nutrients and calories to meet the recommended dietary allowances of the Food and Nutrition Board of the National Academy of Science, National Research Council, adjusted for age, sex and activity.

(2) The following food groups shall be included in each daily menu:

(i) milk--two or more cups served as beverage or used in cooking. Fortified whole, skim or low fat milk, flavored whole or fortified milk, buttermilk, cheese may be used. Cheese may be used as milk or meat, but not both;

(ii) meats--two or more servings of meat, fish, poultry, eggs, cheese or other equivalents. Each serving must provide an edible portion of at least two ounces;

(iii) vegetables and fruits--four or more servings of at least onehalf cup each, citrus fruit or other fruit and vegetable with vitamin C should be used daily. A dark green or deep yellow vegetable or fruit with vitamin A should be used at least every other day. Fruit and vegetable juices may be used;

(iv) breads and cereals--four or more servings. Whole grain or enriched breads, cereals, pasta products may be used.

Other foods may be added to the meal to provide personal satisfaction, additional nutrition and calories.

(3) Water, milk, coffee, tea, and a hot decaffeinated beverage must be available and offered at each meal.

(4) Menus used for planning shall specify the size of servings and the anticipated number of each type of meal (regular and modified) to be served.

(5) Meals shall be planned and served to provide variety in methods of preparation and content, and shall reflect the seasonal availability of food. At a minimum, the food items within the meat and the vegetable and fruit groups must be different or prepared differently for each day of the week.

(6) Each day's menu shall include a hot entree at one meal other than breakfast.

(7) Menus shall be prepared and served as planned; occasional substitutions shall be of like nutritional value.

(8) Menus shall be:

(i) planned a minimum of three weeks in advance; and

(ii) recorded on an approved menu planning form.

(9) Menus shall be conspicuously posted in a public area accessible to residents and visitors, and shall include any daily changes or substitutions.

(10) Copies of current menus must be available in the food preparation area.

(11) Dated copies of menus, as planned and as served, including any changes or substitutions, shall be kept on file for a period of six months.

(e) Food purchasing, storage and preparation and service. (1) The operator shall comply with regulations relating to food service for sanitation, safety and health, as set forth by the New York State Sanitary Code (10 NYCRR Part 14) and other applicable county and local health codes.

(2) In the event that a facility has been inspected by State or local health authorities, a record of such inspection shall be kept on file at the facility for review by the department.

(3) Food purchases and preparation shall be based on:

(i) planned menus;

(ii) tested quantity recipes, adjusted to yield the required number of servings; and

(iii) the estimated number of meals to be served.

(4) Food on hand shall be sufficient to permit the preparation and service of meals in the event of emergency for a minimum of three days.

(5) Food preparation, service and storage areas shall be equipped in accord with standards set forth in section 487.11 of this Part, with the New York State Sanitary Code (10 NYCRR Part 14) and applicable local codes.

(6) Food preparation, service and storage equipment shall be maintained in accord with standards set forth by the New York State Sanitary Code (10 NYCRR Part 14), applicable local codes and manufacturers' specifications.

(7) Freezer temperatures shall be no warmer than 0µF(-18µC).

(8) Storage, preparation and service procedures shall:

(i) preserve flavor and appearance of food; and

(ii) conserve the nutritive value of food.

(9) Storage, preparation and service procedures shall minimize the potential for contamination or spoilage.

(10) Food that is adulterated, contaminated or otherwise unfit for human consumption shall not be served.

(11) Any food service system other than single-seating table service shall require prior written approval of the department.

(12) Tableware appropriate for the meal being served shall be used.

(13) Disposable plates and utensils shall not be regularly used for service.

(14) No more than 15 hours shall elapse between service of the evening meal and breakfast the next morning.

(15) The evening meal shall be served no earlier than 4:30 p.m.

 

Doc Status: 
Complete

Section 487.9 - Personnel

487.9 Personnel. (a) General requirements. 

(1) The operator shall provide staff sufficient in number and qualified by training and experience to render, at a minimum, those services mandated by statute or regulation. 

(2) In a facility with a resident census in excess of 200 persons, a significant number of mentally disabled persons or a population with special needs, the department may require additional staff or specially qualified staff. Such requirements shall be based upon the number of residents, resident needs, physical layout and location of the facility. 

(3) The operator shall conduct an initial program of orientation and in-service training for employees and volunteers, which includes: 

(i) orientation to the characteristics and needs of the population; 

(ii) discussion of the residents' rights and the facility's rules and regulations for residents; 

(iii) discussion of the duties and responsibilities of all staff; 

(iv) discussion of the general duties and responsibilities of the individual(s) being trained; 

(v) discussion relative to the specific duties and tasks to be performed; 

(vi) training in emergency procedures;

(vii) with respect to facilities subject to the Justice Center, training in the identification of reportable incidents, facility reporting procedures and, if the employee is a mandated reporter under section 488 of the Social Services Law or otherwise required to report under section 424-a of the Social Services Law, such person's responsibility to file reports under those provisions; and

(viii) with respect to facilities subject to the Justice Center, provision of a copy of the code of conduct established by the Justice Center pursuant to Section 554 of the Executive Law. Such code of conduct shall be provided at the time of initial employment, and at least annually thereafter during the term of employment. Receipt of the code of conduct must be acknowledged, and the recipient must further acknowledge that he or she has read and understands such code of conduct. Any other individuals, including contractors or other service providers who will or could have resident contact, and falling within the definition of "custodian" under Section 488 of the Social Services Law, must also be provided with, and acknowledge receipt and understanding of, such code of conduct. 

(4) The operator shall conduct ongoing in-service training, and shall provide opportunities for employees and volunteers to participate in work-related training provided by the operator or others. 

(5) The operator shall maintain documentation of the orientation and training sessions, including date, time, topic and names of persons conducting and attending. 

(6) The operator shall develop and maintain current written staffing schedules. Past staffing schedules shall be retained for 12 months. 

(7) The operator shall maintain personnel records which include: 

(i) individual employee records containing verification of qualifications for any position for which qualifications are set by regulation, medical evaluation, and any incident reports involving the employee; 

(ii) payment records containing all wages, benefits, reimbursements, bonuses, and gifts or payments given each employee;

(iii) with respect to facilities subject to the Justice Center, documentation that the facility has verified, through consultation with the Justice Center, prior to hiring the employee, volunteer, or contractor falling within the definition of "custodian" in section 488 of the Social Services Law, whether the individual is on the Justice Center's register of substantiated category one cases of abuse or neglect as established pursuant to section 495 of the Social Services Law (staff exclusion list) and, where such individual is not on such list, documentation that the facility has verified whether the individual is on the Office of Children and Family Services' Statewide Central Registry of Child Abuse and Maltreatment (State Central Registry); and

(iv) Prior to hiring or otherwise engaging anyone who will or may have direct contact with residents, or approving credentials for any such person, the operator of a facility subject to the Justice Center shall follow the procedures established by the Justice Center in regulations or policy, to verify that such person is not on the Justice Center's staff exclusion list. If such person is not on the Justice Center's staff exclusion list, such operator shall also consult the State Central Registry as required by section 424-a of the Social Services Law. If such person is on the staff exclusion list, a facility subject to the Justice Center shall not hire or otherwise engage such person; if such person is not on the staff exclusion list but is on the State Central Registry, a facility subject to the Justice Center shall consider the inclusion of such person on the State Central Registry as a factor in its decision, but shall not be prohibited from hiring or otherwise engaging such person. 

(8) At the time of employment and at least every 12 months thereafter, or more frequently if needed, an employee must provide the operator with a statement from a physician, or, with physician oversight, a physician's assistant (PA) or a registered professional nurse (RN) with special training in primary health care who has physically examined the individual, that: 

(i) the individual is free from any health impairment which is of potential risk to residents of an adult home or which might interfere with the performance of the individual's duties; and 

(ii) that the individual has had: 

(a) a ppd (Mantoux) skin test for tuberculosis within 30 days prior to employment and no less frequently than every two years after employment begins; positive findings require appropriate clinical follow-up but no repeat skin test; and 

(b) any test that may be required by the local board of health. 

(9) Notwithstanding paragraph (8) of this subdivision, physical examinations need not be required for an applicant or an employee who relies upon or is being furnished treatment by spiritual means through prayer in lieu of medical treatment, in accordance with the tenets and practices of a recognized church or religious denomination of which the employee is a member or bona fide adherent. In such cases the operator shall require documentation of the employee's standing as a member. 

(10) No individual who is suffering from a degree of mental illness or habituation or addiction to alcohol or other drugs such that the individual causes, or is likely to cause, danger to himself or others or is unable to perform his/her assigned duties, shall be employed or permitted to work as either an employee or volunteer. 

(11) No individual shall be permitted to work, either as an employee or volunteer, if infected with a communicable disease that might endanger the health of residents. 

(12) Each individual shall: 

(i) be emotionally, mentally and physically able, as required by function, to provide services and supervision to the population served by the facility; and 

(ii) maintain personal hygiene and clothing which is clean and appropriate for the functions performed. 

(13) Employees who have direct contact with residents shall be able to speak, read and write English, and speak the predominant language of residents. 

(14) No person under 18 years of age shall: 

(i) be charged with direct responsibility for the supervision and personal care of residents; or 

(ii) be permitted to work without onsite supervision. 

(15) At least one individual currently qualified by a recognized organization to administer basic first aid shall be on duty and onsite at all times. 

(16) The operator must inform the appropriate regional office by telephone or in writing within three business days of a vacancy in the position of administrator, case manager, activities director, dietary consultant or health consultant. 

(17) Prior to hiring or otherwise engaging any employee, volunteer or others falling within the definition of custodian under section 488 of the Social Services Law which will or may have direct contact with residents, the operator of a facility subject to the Justice Center shall consult with the Justice Center for the Protection of People with Special Needs, to verify that such person is not on the Justice Center's register of substantiated category one cases of abuse or neglect as established pursuant to section 495 of the Social Services Law (staff exclusion list).

(b) Resident employment and volunteer work. (1) Use of residents as volunteers shall be permitted only to the extent that such voluntary services are: 

(i) entered into without use of coercion or threats to the resident; 

(ii) not substituted for services of paid employees as required elsewhere in this Part; and 

(iii) not inconsistent with the physical or emotional needs or limitations of the resident. 

(2) Employment of residents shall be permitted only to the extent that such employment: 

(i) is entered into without use of coercion or threats to the resident; 

(ii) is performed in return for fair compensation; and 

(iii) meets all applicable requirements of Federal and State Labor Law. 

(3) The operator shall maintain written records which document each instance in which a resident elects to perform routine paid or volunteer services, including: 

(i) the name of each resident performing paid or volunteer services; 

(ii) the tasks performed; 

(iii) the rate, type and amount of compensation, if any; and 

(iv) the hours and days worked. 

(c) Administration. (1) The operator shall employ an administrator, or act in his own stead if qualified. The administrator shall be directly accountable to the operator for operating and maintaining the facility in compliance with applicable requirements. 

(2) A person shall not be designated as administrator without prior written approval of the department. Such approval shall be based upon a review of the qualifications set forth in paragraph (9) of this subdivision and demonstrated knowledge of regulation of adult homes as evidenced by previous satisfactory experience or examination by the department. 

(3) Approval of an administrator may be withdrawn and civil penalties may be imposed if the department finds, upon inspection and enforcement, that the administrator is unable or unwilling to carry out any of the responsibilities set forth in paragraph (8) of this subdivision. 

(4) In facilities with a certified capacity of 25 or more beds, a qualified administrator shall be employed and on duty during the day at least 40 hours per week. 

(5) In facilities with a certified capacity of 24 beds or less, a qualified administrator shall be employed and on duty during the day for a minimum of 20 hours per week. 

(6) In a facility with 24 or less beds, the administrator, in addition to being designated as case manager and activities director, may perform personal care, food service, housekeeping or other required functions for up to 10 hours of the required 20-hour minimum. 

(7) In a multilevel health care facility, the administrator of the residential health care facility may be approved as the administrator of the adult home. Such approval will be granted if the following condi
tions are met: 

(i) The administrator must be a licensed nursing home administrator, and must be in the adult home and accessible to residents at least eight hours each week. 

(ii) The operator must provide a satisfactory written plan for supervision of the adult care facility, which includes: 

(a) a description of the system by which supervision of the facility will be exercised; 

(b) designation of an assistant administrator; and 

(c) a profile of the education and experience qualifications of the proposed assistant administrator. 

(iii) The minimum hourly requirements for the combined on-duty presence of the administrator and assistant administrator shall be equal to those required in paragraphs (4) and (5) of this subdivision. 

(8) The administrator shall be capable of and responsible for: 

(i) supervision of the facility; 

(ii) operation of the facility in compliance with law and regulations; 

(iii) recruitment and general supervision of staff and volunteers; 

(iv) supervision of resident services; 

(v) admission, transfer and discharge of residents; 

(vi) coordination with and development of community activities and services for residents; 

(vii) maintenance of community relations; 

(viii) protection of residents' rights and development of appropriate mechanisms for their protection; 

(ix) maintenance of a system to enable residents to present grievances or recommendations regarding facility operations and programs; and 

(x) investigation of and reporting to the department allegations of occurrences which would constitute a reportable incident.

(9) An administrator shall: 

(i) be at least 21 years of age; 

(ii) be of good moral character, as evidenced by at least three recent letters of recommendation from individuals knowledgeable of the proposed administrator's background, qualifications and interest in the field of adult care; 

(iii) in a facility with a capacity of 24 beds or less, have the following education and work experience: 

(a) a high school diploma or equivalency certificate, plus three years of related work experience acceptable to the department, one year of which includes related supervisory experience; or 

(b) an associate degree from an accredited college or university in an approved course of study, plus two years of related work experience acceptable to the department, one year of which includes related supervisory experience; or 

(c) a bachelor's degree from an accredited college or university in an approved course of study, plus one year of related supervisory experience acceptable to the department. 

(iv) in a facility with a capacity of 25 to 90 beds, have the following education and other experience: 

(a) a high school diploma or equivalency certificate, plus four years of related work experience acceptable to the department, two years of which include related supervisory experience; or 

(b) an associate degree from an accredited college or university in an approved course of study, plus three years of related work experience acceptable to the department, one year of which includes related supervisory experience; or 

(c) a bachelor's degree from an accredited college or university in an approved course of study, plus two years of related work experience acceptable to the department, one year of which includes related supervisory experience. 

(v) in a facility with a capacity of 90 beds or more, have the following education and other experience: 

(a) a high school diploma or equivalency certificate, plus five years of related work experience acceptable to the department, two years of which include related supervisory experience; or 

(b) an associate degree from an accredited college or university in an approved course of study, plus three years of related work experience acceptable to the department, two years of which include related supervisory experience; or 

(c) a bachelor's degree from an accredited college or university in an approved course of study, plus two years of related supervisory experience acceptable to the department. 

(10) One year in full-time attendance in an approved course of study at an accredited college may be substituted for each year of work experience, other than required supervisory experience. 

(11) Approved courses of study may include, but need not be limited to, human services for dependent adults, health care management programs, social work programs, hotel management, home economics, business management. 

(12) Related work experience may include, but need not be limited to, work in residential care, rehabilitation, health care management, social work and hotel management. 

(13) Related supervisory experience may include, but need not be limited to, work in a setting described in paragraph (12) of this subdivision where the individual had responsibility for the recruitment and supervision of staff and the coordination and management of related program activities. 

(14) An administrator appointed prior to October 1, 1978 is exempt from the minimum employment and education requirements specified in subparagraphs (iii), (iv) and (v) of paragraph (9) of this subdivision while employed at the same facility or another facility within the same or a smaller size group. 

(15) An administrator shall participate in a program of continuing education which shall: 

(i) consist of a minimum of 60 clock hours over a two-year period; 

(ii) require the prior approval of the department; 

(iii) include courses, workshops, educational seminars, conferences or college-level programs which are directly related to the fields of administration, supervision, program planning and services, human behavior, geriatrics, care of the mentally and physically disabled, social work, health care, financial management or nutrition; and 

(iv) include, for the administrator of a facility with a significant number of mentally disabled residents, at least 15 hours of programming related to the care and treatment of the mentally disabled. 

(16) Continuing education credits will not be required of an administrator holding a valid, current New York State license as a nursing home administrator. 

(17) If an administrator has a post-baccalaureate degree in an approved course of study, a minimum of 30 clock hours for each two-year period shall be accepted for the three two-year cycles following award of the degree. 

(18) Continuing education courses approved by the department and attended by the case manager or activities director shall be accepted for a maximum of 20 of the 60 clock hours required. 

(19) In the absence of the administrator, a responsible person shall be designated to be in charge of the facility and shall be so identified on the facility staffing schedule. The person designated shall: 

(i) be at least 18 years of age; 

(ii) be mentally and physically capable of carrying out the duties of an administrator; 

(iii) be knowledgeable of facility operations; 

(iv) have access to records concerned with facility operations; 

(v) be empowered to act on behalf of the operator during the administrator's absence concerning the health, safety, comfort and well-being of the residents; and 

(vi) have had training to carry out assignments and take care of emergencies and sudden illnesses of residents. 

(d) Case management. (1) Each operator shall designate sufficient staff to perform case management functions. 

(i) In facilities with less than 50 beds, the administrator may be designated in lieu of a qualified case manager. 

(ii) In facilities with 50 or more beds, a qualified case manager shall be on staff and on duty on a pro rata basis for 0.5 hour per week per each additional bed, up to 40 hours per week. 

(iii) In a facility where the administrator is acting as case manager, the operator must designate an employee in addition to the administrator to be a designated investigator and reporter of occurrences which would constitute a reportable incident. Nothing in this subparagraph shall relieve any mandated reporter of his or her legal obligations to report reportable incidents.

(2) A person may not be designated as case manager without the prior written approval of the department. 

(3) A case manager shall be capable of, and responsible for, executing, through direct performance and coordination of:

(a) the services and functions stipulated in section 487.7(g) of this Part; and

(b) investigation of and reporting to the department and, as applicable, to the Justice Center, allegations of occurrences which would constitute a reportable incident.

(4) A case manager shall have the following education and work experience: 

(i) a bachelor's or master's degree from an accredited college or university with major work in human resources or service delivery, and one year of full-time experience in the provision of services to a dependent adult population; or 

(ii) an associate degree from an accredited college or university with major work in human resources or service delivery, and three years of full-time experience in the provision of services to a dependent adult population. 

(5) A case manager employed in a facility prior to September 1, 1984 may be exempt from the requirements of paragraph (4) of this subdivision if he/she has a minimum of one year of experience in the provision of services to a dependent adult population. 

(e) Activities. (1) Each operator shall designate staff to perform the activities services function. 

(i) In facilities with less than 50 beds, the administrator may be designated in lieu of a qualified activities director; 

(ii) In facilities with 50 or more beds, a qualified activities director shall be on staff and on duty on a pro rata basis for 0.5 hour per week per each additional bed, up to 40 hours per week. 

(2) An activities director shall be capable of and responsible for executing, through direct performance and coordination, the services and functions stipulated in section 487.7(h) of this Part. 

(3) An activities director shall have, at a minimum, the following education or work experience: 

(i) an associate degree from an accredited college or university, or satisfactory completion of two years of college; in either case with major work in recreation or a related field; or 

(ii) two years of full-time experience in the recreation field with a dependent, adult population. 

(4) An activities director must have minimum educational qualifications of an associate's degree from an accredited college or university or satisfactory completion of two years of college with major work in recreation unless the facility receives the prior written approval of the department. 

(f) Supervision. (1) Each operator shall designate sufficient staff to perform supervision functions during all hours of operation. 

(2) Staff shall be immediately accessible at all times while on duty. 

(3) Provision shall be made for backup staff. 

(4) During the day and evening, staff responsible for direct resident services, i.e., the administrator, case manager, activities or personal care services staff, may be designated to perform resident supervision services. 

(5) Night staff may be assigned personal care or other duties which do not interfere with their accessibility, provided that such staff remain responsible and available for supervision services. 

(6) The minimum number of staff required for resident supervision shall be determined by resident census. The following number of staff shall be on duty and on site 24 hours a day. 

Resident census Staff required 

1-40 1 

41-80 2 81-150 3 

151-200 4 

(7) An additional staff person shall be required for each additional 60 residents or part thereof. 

(8) The department may require additional staff based on resident needs, physical layout and the location of the facility. 

(9) If local codes require a night watchman, that position shall not be counted as part of the minimum number of staff required for resident supervision. 

(g) Personal care. (1) An operator shall assign sufficient staff to perform personal care functions on a 24-hour basis. 

(2) The operator shall assign a minimum of 3.75 hours of personal services staff time per week per resident, such hours to be distributed throughout the day and evening shifts. 

(3) With prior written approval from the department, an operator may allocate a percentage of the required personal care hours to the night shift. Such approval shall be based on a demonstration that personal care tasks are performed during the night shift and the personal care needs of residents are met during the remainder of the day. 

(4) (i) The operator shall develop and submit to the department, for approval, an in-service training plan for personal care staff which includes a plan for training new employees and an ongoing, in-service program for all personal care staff. 

(ii) The ongoing, in-service program for all personal care staff shall be developed on a 12-month schedule, amended as necessary, and retained on file for department inspection. 

(iii) Records documenting training shall be maintained for each personal care employee. 

(5) All new employees or current employees being newly assigned to perform personal care tasks shall complete training within three months of the date of employment or assignment. 

(h) Housekeeping. The operator shall assign a minimum of 1.0 staff hour per week per resident for the purpose of housekeeping. 

(i) The operator shall provide staff sufficient in number and skill to comply with the maintenance requirements set forth in section 487.11(k) of this Part. 

(j) Food service. (1) The operator shall assign a minimum of 2.0 hours of food service staff per week per resident. In no case shall weekly staff hours assigned to food service be less than 35. The staff requirements apply to a central kitchen and no more than two separate dining areas; other systems of food preparation and service may necessitate a requirement by the department for different staffing. 

(2) A food service manager shall be designated and identified on the staffing schedule. 

(3) A qualified dietitian or dietetic technician shall be retained by the operator as a dietary consultant to provide supervision and consultation sufficient to maintain compliance with food service requirements. 

(4) There shall be a written agreement between the dietary consultant and operator which includes the qualifications, duties, time commitment of the consultant and the duration of the agreement. 

(5) Persons utilized by an operator to provide food service and nutrition consultation and support shall be qualified as: 

(i) a dietitian who has received a baccalaureate degree with major studies in food and nutrition or institutional management from an accredited college or university, is a member or eligible for membership in the American Dietetic Association, participates annually in continuing dietetic education, and has at least two years' full-time work experience in dietetics; or 

(ii) a dietetic technician who has successfully completed an associate degree program which meets the educational standards established by the American Dietetic Association, and has at least three years' full-time work experience in dietetics. 

(k) Health consultant. (1) An operator not in compliance with the admission and retention standards set forth in section 487.4 of this Part or with the provisions of subdivision (e), (f) or (g) of section 487.7 of this Part which relate to the maintenance of resident health or mental health, may be required to retain a health consultant or consultants. 

(2) Persons utilized by an operator to provide health consultations shall be a physician, physician's assistant or registered nurse. A certified pharmacist may provide consultation in medications management. 

(l) Volunteers. If an operator uses community volunteers: 

(1) Volunteers must be supervised by the administrator or his designee. 

(2) All volunteers shall be given orientation to the characteristics 
and needs of the resident population, the rights of residents, the physical layout of the facility, emergency procedures and an explanation of their specific responsibilities. 

(3) All volunteers shall be given a copy of the residents' rights. 

(4) The operator shall maintain a record for each volunteer, which includes the individual's name, current address and telephone number. 

(5) If a community volunteer organization is providing service within the facility, the operator may have an agreement with the organization to retain the information required in paragraph (4) of this subdivision. Such agreement shall include: 

(i) the name and address of the organization; 

(ii) a designated contact person; and 

(iii) a statement that the volunteer organization is able and willing to provide the specific volunteer information as required in paragraph 

(4) of this subdivision. 

(6) Volunteer services may not be substituted for services of paid employees required elsewhere in this Part. 

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016

Section 487.10 - Records and reports

487.10 Records and reports. (a) The operator shall collect and maintain such information, records or reports as determined by the department to be necessary. 

(b) The department or its designee may examine the books and records of any facility to determine the accuracy of the annual financial statement, or for any other reason deemed appropriate by the department to effectuate the purposes of these regulations. The Justice Center shall have access to any residential care facility within its jurisdiction and adult care facilities in which a resident received mental health services as described in 487.7(d)(8)(iv), 487.7(d)(9)(ii), and 487.7(d)(10), and to information, reports or records in such facility's possession as needed to carry out the functions, powers and duties of the Justice Center.  The department and the Justice Center shall, when required by law, or when so directed by the department or the Justice Center and except as otherwise prohibited by law, be permitted to share information obtained in their respective investigations of incidents. 

(c) Resident records. (1) The operator shall maintain complete, accurate and current records for each resident. 

(2) These records shall be maintained in the facility and shall be available for review and inspection by department staff designees. 

(3) Records shall be maintained in a manner which assures resident privacy and accessibility to staff to use in the provision of routine and emergency services. 

(4) At a minimum, the operator shall maintain: 

(i) financial records for each resident which contain, at a minimum, a copy of the current admission agreement, documentation of the status of the resident's payment account, personal fund account, and a current inventory of any personal property held in custody for the resident by the operator; 

(ii) personal records for each resident which contain, at a minimum: personal data, including identification of the resident's next of kin, family and sponsor; the name and address of the person or persons to be contacted in the event of emergency; copies of the resident's medical evaluations and other medical information; copies of the resident's mental health evaluations; summaries of the social evaluations; and details of referral and such other correspondence and papers as are available to document the physical, mental and social status of the resident; and 

(iii) records which are readily available to food service staff and enable staff to plan for and accommodate prescribed dietary regimens, allergies and individual food preferences. 

(d) Facility records. (1) The operator shall maintain complete, accurate and current records which document operation and maintenance of the facility in accord with applicable law and regulation. 

(2) These records shall be maintained in the facility, unless written authorization is given by the department for record retention in another location, and shall be available for review and inspection by department staff and designees. 

(3) Records must be maintained in a manner which assures individual residents' rights to confidentiality and privacy, provided that confidential HIV-related information concerning residents must be maintained in accordance with section 485.11 (g)(9)-(15) of this Title. 

(4) Confidential HIV-related information concerning employees, volunteers, applicants for employment and prospective residents must be maintained in accordance with section 485.11 (g)(9)-(15) of this Title. 

(5) At a minimum, the operator shall maintain: 

(i) individual resident records as stipulated in subdivision (c) of this section; 

(ii) resident records stipulated elsewhere in these regulations, including daily census reports and incident reports; 

(iii) a chronological admission and discharge register, consisting of a listing of residents registered in and discharged from such facility by name, age, sex of resident, and place from or to which the resident is registered or discharged; 

(iv) program records, including service procedures, activities schedules, agreements with external service providers, emergency plans and records of evacuation drills; 

(v) food service records, including menus and food purchase records; 

(vi) records of maintenance of the physical plant and environmental standards; 

(vii) staff records, including personnel procedures, job descriptions, staffing schedules and payment records; 

(viii) certificates or reports issued by local and other State jurisdictions related to the facility operations, on file and readily accessible for department review, or posted, if required. 

(ix) records documenting the development, implementation and, at a minimum, the bi-annual updating of quality assurance activities for each area of facility operation. These must include, at a minimum, the development and maintenance of performance standards, measurement of adherence to such standards and to applicable state and local laws and regulations, identification of performance failures, design and implementation of corrective action.

(6) The records and reports required to be maintained by the operator pursuant to this subdivision shall not be posted or otherwise made available to the public.

(e) Facility reports. The operator shall submit to the department: 

(1) Annual financial statement. (i) The operator of an adult home or residence shall file an Annual Financial Statement (DSS-2963) with the department on or before the 15th day of the sixth calendar month after the close of its fiscal year. Such statement shall clearly set forth all financial information pertaining to the operation of such facility in accordance with generally accepted accounting principles, including but not limited to revenues and expenses by categories during such fiscal year, together with such other information as may be required by the department, and shall, for all facilities with a capacity of 10 or more residents, be accompanied by an opinion signed by an independent licensed accountant that such financial statement represents the financial operations and position of the facility. 

(ii) The operator of a not-for-profit adult home which submits a charitable organization annual report to the Secretary of State or the residential health care facilities annual report to the Department of Health may submit copies of those reports, together with such other data as may be necessary to satisfy the requirement in subparagraph (i) of this paragraph. 

(iii) An operator shall maintain and make available all such books and records as may be required by the department to determine the accuracy of any and all information contained in the financial report filed by the operator. 

(2) A quarterly statistical information report;

(3) for facilities with a certified capacity of 80 beds or more in which twenty percent or more of the resident population are persons with serious mental illness as defined in subsection 487.2(c) of this Part, a quarterly statistical information report which must: 

(i) identify the quarter being reported on; 

(ii) contain a census report, which shall include a roster of residents who are persons with serious mental illness as defined in subsection 487.2(c) of this Part; 

(iii) for any residents admitted during the quarter reported on, the prior residence, and for any residents discharged during the quarter being reported on, the discharge location; and 

(iv) contain the number of resident deaths which occurred during the quarter being reported on.

(f) Mandated forms. The department mandates utilization of the following forms: 

(1) Personal Data Sheet (DSS-2949). 

(2) Daily Census Record (DSS-2900). 

(3) Incident Report (DSS-3123). 

(4) Medical Evaluation (DSS-3122). 

(5) Inventory of Resident Property (DSS 3027). 

(6) The following personal allowance account forms must be used unless prior written authorization for substitutions has been given by the department: 

(i) Statement of Offering (DSS-2853). 

(ii) Personal Allowance Summary (DSS-2855). 

(iii) Personal Allowance Ledger. 

(7) Mental Health Evaluation.

(g) The operator shall post the following documents: 

(1) the operating certificate; 

(2) the inspection report for the most recent complete or summary inspection, with any related follow-up inspection reports; 

(3) statement of rights of residents; 

(4) weekly menus; 

(5) monthly activities schedules; 

(6) evacuation procedures; 

(7) notice prohibiting employee acceptance of remuneration, tips or gratuities; 

(8) schedule of times residents may have access to their personal allowance accounts; and 

(9) procedures for presenting grievances and recommendations. 

(h) Records retention. (1) Records required by the department, excepting financial records of the previous operator, shall be retained in the facility upon change of operator. 

(2) Records relating to an individual shall be retained for three years after death or discharge of a resident. 

(3) Program records, business records and records relating to application or renewal for an operating certificate shall be retained for seven years.

(i) Except as otherwise prohibited by law, the operator of a facility, as defined in section 488(4) of the Social Services Law and who is not otherwise subject to article six of the Public Officers Law, shall make records available for public inspection and copying to the extent required by subdivision six of Section 490 of the Social Services Law and regulations of the Justice Center.

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016
Statutory Authority: 
Social Services Law, Sections 460-d, 461 and 461-e

Section 487.11 - Environmental standards

487.11 Environmental standards. (a) In order to provide a safe, comfortable environment for residents, the operator shall maintain the facility in a good state of repair and sanitation, and in conformance with applicable State and local laws, regulations and ordinances.

(b) An operator seeking certification to operate an adult home, or an operator of a certified facility planning renovation or remodeling, must:

(1) submit to the department, in duplicate, plans and specifications for construction, renovation or building addition; and

(2) proceed with implementation of such plans only after obtaining written approval of the department.

(c) Plans and specifications for construction, renovation or remodeling shall be in compliance with the regulations of the department and any applicable building construction and safety codes.

(d) After January 1, 1984, a building newly constructed or converted for use as an adult home, or an existing building rehabilitated or renovated for continued use as an adult home in which the cost of any alterations, additions or repairs made within any six-month period exceeds 50 percent of the cost of the replacement of the building at the beginning of that six-month period, shall be in compliance with these regulations and the State Uniform Fire Prevention and Building Code requirements for B-4 occupancy.

(e) In an existing adult home certified before September 22, 1978, residents may continue to occupy any portion of the third or higher floor in a building of frame or unprotected ordinary construction, or any portion of the seventh or higher floor in a building of protected ordinary construction:

(1) only until a change of operator occurs; and

(2) prior to a change of operator, only if the resident is capable of self-directed, unassisted emergency evacuation.

(f) Smoke and fire protection. (1) A supervised smoke detection system, which is listed by an acceptable testing laboratory, shall be installed in the following locations:

(i) in each corridor at least every 40 feet on center, or less if required by the manufacturer;

(ii) at the top of all stairways, elevator and hoistway and other unsealed shafts; and

(iii) in attics, basements and open floor areas designated for public or resident use, at least one detector for each 1,000 square feet of open or unpartitioned space.

(2) Notwithstanding paragraph (1) of this subdivision, an unsupervised smoke detection system may continue to be used in a facility certified prior to September 22, 1978, if all components are audible throughout the building.

(3) There shall be at least one clearly marked, manual, audible pullbox alarm on each occupied floor and wing.

(4) An automatic sprinkler system shall be installed throughout all buildings of 25 or more beds.

(5) A building which is at least of noncombustible, protected construction and was certified as an adult home before September 22, 1978 does not need to have a sprinkler system installed.

(6) At least one of the required fire protection systems shall be connected directly to the local fire department or a central station, unless such a connection is not available. The operator must document that such connection is not available.

(7) Smoke barriers, including smoke-stop doors of at least one hour fire-resistive rating, shall be installed at the opening of any vertical shaft or stairway. In a stairway between two stories the barrier may be constructed either at the top or bottom of the stairway.

(8) Required smoke barriers, including smoke-stop doors, shall be:

(i) smoketight;

(ii) equipped with a self-closing device;

(iii) maintained in the closed position unless electromagnetically or electronically connected to the smoke detection systems; and

(iv) open in the direction of exit.

(9) In a facility certified after September 22, 1978, smoke stops are required in all corridors 100 feet long.

(10) There shall be at least two means of egress from each floor designated for public or resident use.

(11) The required means of egress shall:

(i) be remote from one another;

(ii) not pass through a bedroom or bathroom; and

(iii) not be obstructed at any time.

(12) Each required exit door shall be:

(i) at least 6 feet 8 inches high;

(ii) open in the direction of exit travel;

(iii) equipped with panic (quick release) hardware;

(iv) equipped with a self-closing device; and

(v) freely accessible at all times.

(13) Any window within 10 feet of an exterior fire stair shall be protected with wire glass, explosion-proof plexiglass, or an exterior screen of half-inch 28-gauge wire mesh.

(14) Illuminated exit signs shall be installed at each required exit.

(15) When the exit is not visible, illuminated directional exit signs shall be installed in all corridors to indicate the location of each means of egress.

(16) Emergency lighting which is listed by an acceptable testing laboratory and powered by battery or an automatic generator shall be installed in all exit hallways, stairwells and public areas.

(17) Fire extinguishers which meet National Fire Protection Association standards and which are appropriate for the type of fire which may occur at the site of installation shall be:

(i) placed at accessible locations on each floor and each wing;

(ii) wall-hung; and

(iii) properly charged and checked.

(18) Evacuation procedures which set forth emergency stations, the duties of all staff and residents, and directions for the rapid evacuation of the premises shall be posted in a conspicuous place on each floor and wing.

(19) The following are fire hazards and are prohibited:

(i) smoking in other than designated areas;

(ii) portable electric space heaters;

(iii) self-contained, fuel-burning space heaters;

(iv) nonmetal containers for furnace ashes;

(v) accumulation of combustible materials in any part of the building;

(vi) storage of flammable or combustible liquids in anything other than closed containers listed by an acceptable testing laboratory;

(vii) cooking appliances in resident's room; and

(viii) overloaded electrical circuits.

(20) At least one staff member on duty during each shift shall be familiar with the fire alarm systems and procedures for resetting these systems.

(g) Electrical systems. (1) Electrical wiring and equipment shall be maintained and protected to prevent it from becoming a fire hazard or a source of ignition.

(2) Electrical wiring and equipment shall be firmly secured to the surface on which it is mounted.

(3) Over current protection devices shall be maintained in safe operating condition, shall not be locked or fastened in the "on" position and shall be accessible.

(4) Electrical wiring and equipment shall be grounded to provide protection against shock.

(5) Flexible cord shall not be run through holes in walls, ceilings or floors; through doorways, windows or similar openings; attached to building surfaces; or concealed behind or under walls, ceiling, floors or floor coverings.

(h) Safety procedures. (1) Access to toilets or bathing areas shall not be through another resident's bedroom.

(2) Access to resident bedrooms shall not be through other bedrooms, bathrooms or kitchens.

(3) Chain locks, hasps, bars, padlocks and similar devices shall not be used in any resident area in a way which would inhibit access to an exit or the free movement of residents.

(4) Doors in residents' sleeping rooms may be secured by the resident, provided such doors can be unlocked from the outside and keys are carried by staff assigned to the floor or wing at all times.

(5) Residents shall not have access to storage areas used for medications, cleaning agents, bleaches, insecticides or any other poisonous, dangerous or flammable materials.

(6) In a facility certified before October 1, 1978, signal bells, handbells, telephones or other systems audible to staff responsible for that floor or wing shall be available for emergency communication between resident bedrooms and staff stations.

(7) In a facility certified after October 1, 1978, a centralized emergency call system shall be installed. In facilities certified after September 1, 1984, the centralized call system shall be installed in all resident bedrooms, toilet areas and bathing areas.

(8) All corridors, interior and exterior stairways shall have handrails on both sides.

(9) Grab-bars shall be provided for toilets and in bathtubs and showers.

(10) Bathtubs and showers shall have nonslip protections.

(11) The water temperature at faucets for bathing, showering and handwashing must be capable of attaining a temperature of 95 degrees Fahrenheit (35 degrees Celsius) and must not attain a temperature in excess of 110 degrees Fahrenheit (43 degrees Celsius).

(12) Heating pipes and radiators, with which residents may come in contact, shall be shielded to prevent burns.

(13) Illumination shall be present at the entrance to each resident bedroom.

(14) In a facility certified after September 22, 1978, all rooms in resident-occupied areas, including bedrooms, shall have general lighting switches at the entrance to each room.

(15) Night lights shall be provided and working in all hallways, stairways and bathrooms which are not private.

(16) A hallway or corridor shall not be used for storage.

(17) Throw or scatter rugs shall not be permitted unless equipped with a nonslip backing or secured to the floor.

(18) Polishes used on floors shall provide a nonslip finish.

(19) The floor area immediately adjacent to a shower or tub shall have a nonslip surface or a nonslip mat.

(i) Furnishings and equipment. (1) The operator shall provide furnishings and equipment which do not endanger resident health, safety and well-being, and which support daily activities and are appropriate to function.

(2) All resident areas shall be decorated, painted and appropriately furnished.

(3) All upholstery materials, carpets and similar floor coverings, installed on or after October 1, 1978, shall be moisture- and soil-resistant, except on furniture provided by the resident and the property of the resident.

(4) Each operator shall furnish each resident with the following minimum bedroom equipment:

(i) a standard single bed, well constructed, in good repair, and equipped with:

(a) clean springs maintained in good condition;

(b) a clean, comfortable, well-constructed mattress, standard in size for the bed; and

(c) a clean comfortable pillow of average bed size.

(ii) a chair;

(iii) a table;

(iv) a lamp;

(v) lockable storage facilities, which cannot be removed at will, for personal articles and medications;

(vi) individual dresser and closet space for the storage of resident clothing; and

(vii) a hinged entry door.

(5) Rollaway beds, metal cots or folding beds shall not be used.

(6) Beds with side rails or beds in excess of 36 inches high shall not be used, except in sick bays.

(7) Each resident shall be supplied with:

(i) two sheets;

(ii) pillowcase;

(iii) at least one blanket;

(iv) a bedspread;

(v) towels and washcloths;

(vi) soap; and

(vii) toilet tissue.

(8) Bed linens, blanket, spreads and towels shall be:

(i) clean and washable;

(ii) free from rips and tears; and

(iii) available when changes are necessary.

(9) A complete change of bed linens, towels and washcloths shall be provided to each resident at entry, at least once a week, and more often if needed.

(10) The operator shall maintain a bed linen inventory equal to at least double the average daily census of the facility.

(11) All windows in resident-occupied areas shall be equipped with curtains, shades or blinds.

(12) All operable windows shall be equipped with screens.

(13) Light fixtures shall be shaded.

(14) Dining areas shall be furnished with dining tables and chairs appropriate to the size and function of the facility.

(15) Living rooms, sitting rooms, lounges and recreation areas shall be furnished with tables, chairs, lighting fixtures and other equipment appropriate to the size and function of the specific area and of the facility.

(16) The food preparation and service area shall be provided with sufficient and suitable space and equipment to maintain efficient and sanitary operation of all required functions, in compliance with the New York State Sanitary Code (10 NYCRR Part 14).

(j) Housekeeping. (1) The operator shall maintain a clean and comfortable environment.

(2) All areas of the facility shall be free of vermin and rodents.

(3) All areas of the facility, including but not limited to the floors, walls, windows, doors, ceilings, fixtures, equipment and furnishings, shall be clean and free of odors.

(4) Blankets, bedspreads, pillows and other furnishings shall be laundered as often as necessary for cleanliness and freedom from odors.

(5) It shall be the responsibility of the operator to launder the personal washable clothing of residents at no additional charge. The operator may provide the facilities and supplies for residents who choose to launder their own personal clothing.

(k) Maintenance. (1) The operator of each facility shall insure the continued maintenance of the facility.

(2) The building and grounds shall be maintained in a clean, orderly condition and in good repair.

(3) All equipment and furnishings shall be maintained in a clean, orderly condition and in good working order.

(4) Walls and ceiling coverings shall be free of cracks or tears, peeling wallpaper or paint, missing or cracked tiles.

(5) Floors and floor coverings shall be free of cracks and missing or raised portions.

(6) Electrical systems, including appliances, cords and switches, shall be maintained in good working order.

(7) Plumbing and plumbing fixtures shall be maintained in good working order.

(8) Ventilation, air conditioning and air changing systems shall be maintained in good working order.

(9) Heating systems shall be maintained in good working order.

(10) The facility building, grounds and other buildings on the premises shall be kept free of breeding areas for flies, vermin and rodents.

(11) Entrances, exits, steps and outside walkways shall be kept free from ice, snow and other hazards.

(12) Windows and screens shall be kept clean and in good repair.

(13) Sprinkler systems shall be maintained in good repair and working order.

(14) Smoke and fire protection equipment, including fire extinguishers, shall be maintained in accord with manufacturer's specifications.

(15) To ensure safe, proper operating conditions, the following systems and equipment must be inspected or tested by a service company at least once every 12 months, or more frequently if required by local codes:

(i) smoke detection systems;

(ii) fire alarm system;

(iii) sprinkler system;

(iv) fire extinguishers;

(v) heating system;

(vi) elevators;

(vii) water supply, if other than a municipal system.

(16) All inspection certificates required by State or local authorities for buildings, grounds and equipment shall be available for review.

(17) In a facility of 25 beds or more certified after September 22, 1978, at least one janitor's closet shall be required. It shall be adequately ventilated to the outside and equipped with a water supply and a janitor's sink.

(l) Space requirements for adult homes. (1) Space in a facility shall be used exclusively for the purposes set forth in this Part. An operator may request prior permission, in writing, to utilize space for other activities. The operator must demonstrate that the proposed use is not incompatible with the facility program, will not be detrimental to residents, and complies with applicable local codes. A request to use resident bedrooms for another purpose must include a request for an equal reduction in the certified capacity of the facility.

(2) Every facility shall have space for dining and separate space for leisure.

(3) Space leased for administration, sleeping or passage shall not be considered as dining or leisure space.

(4) Dining rooms and leisure areas shall be available for use by residents at appropriate times to provide periods of social and diversional individual and group activities.

(5) Space provided for dining shall be at least 15 square feet per certified bed.

(6) Space provided for leisure shall be at least 20 square feet per certified bed.

(7) In a facility with 25 or more beds, leisure areas shall not be confined to a single room.

(8) If an operator is unable to satisfy the requirements for dining and leisure space set forth in paragraphs (2), (5) and (6) of this subdivision, the operator may make written request for an exception. At a minimum, the operator shall be required to provide at least 12 square feet per certified bed for dining, and 15 square feet per certified bed for leisure. Actual space requirements will be conditioned by physical layout and subject to onsite review and written department approval.

(9) Space shall be provided for administrative activities and records.

(10) Space shall be provided for storage of equipment and supplies.

(11) The operator shall maintain areas suitable for posting required notices, documents and other written materials in public locations visible to, and accessible to, residents, staff and visitors.

(12) The operator shall provide space for residents to meet privately with staff of the facility, visitors or other service providers.

(13) Baths and toilet facilities. (i) There shall be a minimum of one toilet and one lavatory for each six residents, and a minimum of one tub or shower for each 10 residents.

(ii) All toilet and bathing areas shall be vented by means of natural or mechanical ventilation to the outside air.

(iii) All toilet and bathing areas shall be adequately lighted.

(iv) All toilet and bathing areas shall be properly enclosed and separated by ceiling-high partitions and doors.

(14) Bedrooms. (i) All bedrooms shall be:

(a) above grade level;

(b) adequately lighted; and

(c) adequately ventilated.

(ii) Light and ventilation for bedrooms shall be by means of windows in an outside wall.

(iii) Bedrooms shall open directly into a route of egress.

(iv) Bedrooms may not be used as a passageway, corridor or access to other bedrooms.

(v) In a facility certified after September 22, 1978, bedrooms shall be limited to single or double occupancy.

(vi) Single bedrooms shall have a minimum floor area of 100 square feet, exclusive of foyer, wardrobe, closets, lockers and toilet rooms.

(vii) Double bedrooms shall have a minimum floor area of 160 square feet, exclusive of foyer, wardrobe, closets, lockers and toilet rooms.

(viii) Notwithstanding subparagraph (vi) of this paragraph, any single bedroom in use and approved by the department or the board of social welfare as of September 22, 1978 which:

(a) provides a minimum of 85 square feet, exclusive of entrance way and closet space, and is equipped as required by paragraph (i)(4) of this section, may continue to be used;

(b) has less than 85 square feet, exclusive of entrance way and closet space, shall no longer be used as a bedroom after a change of operator occurs.

(ix) Notwithstanding subparagraph (vii) of this paragraph, any double bedroom in use and approved by the department or the board of social welfare as of September 22, 1978 which:

(a) provides a minimum of 70 square feet per resident exclusive of entrance way and closet, provides a minimum of 3 feet between beds and is equipped as required by paragraph (i)(4) of this section may continue to be used;

(b) has less than 70 square feet per resident, exclusive of entrance way and closet space, shall no longer be used as a double bedroom after a change of operator occurs.

(x) Not more than two residents shall share a bedroom; however, if a bedroom was used for more than two residents as of September 22, 1978, and such use was approved by the department or the board of social welfare, such bedroom may continue to be used under the conditions set forth in subparagraph (ix) of this paragraph.

(15) All facilities shall, with the cooperation of the telephone company, have at least one telephone available for outside calls for every 40 residents or portion thereof. The operator may impose equivalent charges for use.

(m) Heating. (1) The facility shall have a permanently installed heating system capable of maintaining required temperatures.

(2) When the outside temperature is 65 degrees Fahrenheit (18 degrees Celsius) or less, the inside temperature in resident bedrooms and common areas shall be, at a minimum, 68 degrees Fahrenheit (20 degrees Celsius).

(3) When the outside temperature exceeds 85 degrees Fahrenheit (30 degrees Celsius) the operator shall:

(i) take measures to maintain a comfortable environment;

(ii) monitor resident exposure and reactions to heat;

(iii) arrange for health care, if needed; and

(iv) arrange for the temporary relocation of residents, if needed.

 

Doc Status: 
Complete

Section 487.12 - Disaster and emergency planning

487.12 Disaster and emergency planning. (a) The operator shall have a written plan, approved by the department, which details the procedures to be followed for the proper protection of residents and staff in the event of an actual or threatened emergency or disaster which interrupts normal service.

(b) The plan shall include, but not be limited to:

(1) procedures and designated staff responsibilities for execution of any part of the plan;

(2) procedures for full and partial evacuation of the facility, including:

(i) designation of staff responsible for the conduct and supervision of evacuation;

(ii) schedule and procedures for training all staff in evacuation procedures and responsibility;

(iii) procedures for the conduct of monthly fire drills for staff;

(iv) procedures for the conduct of quarterly fire drills for staff and residents; and

(v) specific and current procedures for evacuation of any residents with need for individual procedures;

(3) preliminary plans for relocation of residents, if necessary;

(4) coordination of the facility plan with such community resources and local disaster and emergency planning organizations as may be available to provide temporary shelter, food and clothing, and other essential services; and

(5) plans for the maintenance of service in the event of reductions in personnel.

(c) The operator shall conduct training for each new and current employee and volunteer in both the overall plan and the individual's specific responsibility in its execution, and shall review with staff their performance after the conduct of each drill.

(d) Evacuation procedures shall be conspicuously posted on every floor and in each wing of the facility.

(e) Emergency contact numbers and procedures shall be available to the person(s) designated with supervisory service responsibilities.

(f) To insure that each shift has an opportunity to practice its respective responsibilities:

(1) the operator shall conduct monthly fire drills for staff and volunteers;

(2) these monthly fire drills shall:

(i) be conducted at varied times during the day and night;

(ii) include both full and partial evacuation of the facility; and

(iii) simulate different fire conditions.

(g) At least once in each calendar quarter, residents shall participate in a fire drill; each 12 months, at least one of these drills must include total evacuation of the facility.

(h) The operator shall arrange, at least annually, to have the local fire authorities, certified service agency or department staff observe one fire drill in which residents participate.

(i) The operator shall maintain a record of all fire drills, including the date and time of the drill, a description of the drill, the number of residents participating and the signatures of participating staff and volunteers.

(j) Any time there is a work stoppage, a fire within the facility, failure of any one of the fire prevention or detection systems, lack of hot water, interruption or shut-off of essential services or any circumstances necessitating the implementation of the disaster and emergency plan, the department shall be notified by the next business day. (k)The operator of an adult home shall obtain from the Department’s Health Provider Network (HPN), HPN accounts for each adult home he or she operates and ensure that sufficient, knowledgeable staff will be available to and shall maintain and keep current such accounts. At a minimum twenty-four hour, seven-day a week contacts for emergency communication and alerts, must be designated by each home in the HPN Communications Directory. A policy defining the adult home’s HPN coverage consistent with the home’s hours of operation, shall be created and reviewed by the adult home no less than annually. Maintenance of each adult home’s HPN accounts shall consist of, but not be limited to, the following: (1) sufficient designation of the home’s HPN coordinator(s) to allow for HPN individual user application; (2) designation by the adult home operator of sufficient staff users of the HPN accounts to ensure rapid response to requests for information by the State and/or local Department of Health; (3) adherence to the requirements of the HPN user contract; and (4) current and complete updates of the Communications Directory reflecting changes that include, but are not limited to, general information and personnel role changes as soon as they occur, and at a minimum, on a monthly basis.

Doc Status: 
Complete
Effective Date: 
Wednesday, November 2, 2005

Section 487.13 - Transitional Adult Homes

487.13 Transitional Adult Homes

(a) This section shall apply to all transitional adult homes.

(b) Definitions

(1) A transitional adult home is an adult home with a certified capacity of 80 beds or more in which 25 percent or more of the resident population are persons with serious mental illness as defined in subsection 487.2(c) of this Part.

(2) An alternative community setting is any setting other than a transitional adult home that is designed to promote independence and economic self-sufficiency. Alternative community settings include, but are not limited to:

(i) supported housing, including scattered site apartments and single site apartments;

(ii) supported single room occupancy;

(iii) supportive housing, including community residence single room occupancy;

(iv) community residences;

(v) apartment treatment,

(vi) senior housing;

(vii) enriched housing programs; and

(viii) such other housing alternatives as are clinically appropriate.

(3) Community services means services and supports provided in New York State that assist individuals with mental illness to live in the community. Such services and supports include, but are not limited to, assertive community treatment, intensive case management, case management, personalized recovery oriented services, continuing day treatment and Medicaid benefits for which a resident is eligible, including home and community based services waivers, clinic services, certified home health care, personal care assistance, and rehabilitative services.

(4) Mental health census means the number of residents in a facility who are persons with serious mental illness as defined in subsection 487.2(c) of this Part.

(5) Housing contractors means housing providers that have contracted with the Office of Mental Health to provide residents with information regarding housing alternatives and community services and

(ii) make community housing available to residents pursuant to such contracts.

(6) Community transition coordinator means a contractor retained by the department to facilitate the transition of residents to alternative community settings.

(c) The operator of every transitional adult home shall submit to the department a compliance plan that is designed to bring the facility's mental health census to a level that is under 25 percent of the resident population over a reasonable period of time, through the lawful discharge of residents with appropriate community services to alternative community settings.

(d) The compliance plan shall be submitted by the deadline set forth in subsection (e) of this section and shall specify:

(1) How and by when the operator will achieve a mental health census that is under 25 percent of the resident population;

(2) How the operator will address the needs of its residents, in particular those residents who are persons with serious mental illness as defined in subsection 487.2(c) of this Part, while the reduction in mental health census is being achieved, including but not limited to:

(i) fostering the development of independent living skills;

(ii) ensuring access to and quality of mental health services;

(iii) encouraging community involvement and integration; and

(iv) fostering a homelike atmosphere;

(e) The operator shall submit the compliance plan no later than 120 calendar days after the effective date of this regulation.

(f) The department, in consultation with the Office of Mental Health, shall review each compliance plan and within 90 calendar days, shall either:

(1) approve the compliance plan; or

(2) require modification of the compliance plan by the operator. Any such modifications shall be submitted within 30 calendar days of notice by the department and shall be subject to the approval of the department, in consultation with the Office of Mental Health.

(3) If the operator does not submit a compliance plan, or submits a compliance plan that is not acceptable to the department after modification, the department will impose a compliance plan on the operator.

(g) Upon approval of the compliance plan by the department, or, if no compliance plan is submitted or approved, upon the imposition of a compliance plan on the operator by the department, the operator shall implement the compliance plan.

(h) The operator shall cooperate with the community transition coordinator, housing contractors, and health home and managed long term care plan assessors and shall provide, without charge, space for residents to meet privately with such individuals or entities. The operator shall not attempt to influence or otherwise discourage individual residents from meeting with such entities and individuals.

Doc Status: 
Complete
Effective Date: 
Wednesday, January 16, 2013
Statutory Authority: 
Social Services Law, Sections 460-d, 461 and 461-e

Section 487.14 - Reporting of Reportable Incidents

487.14 Reporting of Reportable Incidents. 

Facilities subject to the Justice Center, and any individuals associated with such facility, or performing work for it, who fall within the definition of mandated reporter under section 488 of the Social Services Law, shall report any occurrence constituting a reportable incident immediately to the Justice Center upon having reasonable cause to suspect that a reportable incident has occurred. 

(a) Circumstances to be reviewed that may lead to a reasonable cause to suspect conclusion might include, but are not limited to:

(i) A statement that a reportable incident has occurred;

(ii) The presence of a physical condition (e.g. a bruise) which is inconsistent with the history or course or treatment of the resident; or

(iii) A visual or aural observation of an act or condition indicating the occurrence of a reportable incident.

(b) Such facilities must report to the Justice Center reportable incidents, including injuries of unknown origin, if and when the reasonable cause to suspect threshold has been achieved. This might occur before the facility investigation into the incident has begun or at any time during the investigation. 

(c) If the reasonable cause to suspect threshold has not been achieved, notification to the Justice Center is not required.

(d) When an alleged reportable incident occurs, the facility is required to initiate an investigation. The Justice Center, and/or the department, may also investigate the incident.

(e) Such reporting obligations are in addition to those otherwise provided for under this Part.

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016

Section 487.15 - Investigations involving facilities subject to the Justice Center

487.15 Investigations involving facilities subject to the Justice Center

Investigations involving facilities subject to the Justice Center shall proceed consistent with the following requirements:

(a) Facilities must investigate all occurrences of reportable incidents, including injuries of unknown origin. Facility policy and procedures must address the process of investigating an incident at the facility level. Such process must include, at minimum, the following elements:

(i) immediately upon notice of an occurrence constituting a reportable incident, including injuries of unknown origin, the facility must obtain a medical examination, as indicated by the circumstances, of any physically injured individual, record the name of the examiner and retain his/her written findings.

(ii) the facility must promptly identify and interview witnesses to the incident. Such interviews should be conducted by qualified, objective individuals in a private area which does not allow those not participating in the interview to overhear. Interviews must be conducted of each party or witness individually, not in the presence of, or under circumstances in which other parties or witnesses may perceive any aspect of the interview. The person alleging the incident, or who is the subject of the incident, must be offered the opportunity to give his/her version of the event. At least one of the persons conducting the interview must have an understanding of, and be able to accommodate, the unique needs or capabilities of the person being interviewed.

(iii) the facility must review pertinent information (e.g., medical and other records, observe the scene of the incident, expert assessments, outside service provider information);

(iv) the facility must identify physical evidence, if any, and take appropriate measures to safeguard and preserve such evidence;

(v) the facility must establish scope and severity, including duration, staff involvement, number of residents involved and resident outcomes;

(vi) the facility must document each of the investigative steps taken;

(vii) upon completion of the investigation, a written report shall be prepared by the facility which shall include all relevant findings and information obtained in the investigation with reference to the supporting information obtained in the investigation, and details of steps taken to investigate the incident. The facility director must make a written endorsement of such findings. Such findings must also identify and document the remedial steps to be taken, and designate the person responsible for assessing the efficacy of the remedial action taken. The results of the investigation shall be promptly reported to the department and to the Justice Center.

(b) The investigation must by conducted by the administrator or case manager or, if applicable, the administrator's designee.

(c) Any information, including but not limited to documents and other materials, obtained during or resulting from any investigation shall be kept confidential, except as otherwise permissible by law or regulation.

(d) Investigations of reportable incidents must be completed, and the results of such investigation reported to the department, within five calendar days of the discovery of the incident. Additional time for completion of the investigation may be allowed, subject to the approval of the department, upon a showing of good cause for such extension. For purposes of this section, “complete” shall mean that all necessary information has been obtained to determine whether and how the incident occurred, to determine the remedial action necessary to address the occurrence, and to complete the findings referenced in paragraph (a)(vii) of this section.

(e) If any remedial action is necessary, the operator, in collaboration with the department, shall establish a plan in writing. The plan shall indicate the operator’s agreement to the remediation and identify a follow-up date and person responsible for monitoring the remedial action. The plan shall be provided, and any measures taken in response to such plan shall be reported, to the Justice Center.

(f) except to the extent otherwise prohibited by law, the facility shall provide information, whether obtained pursuant to the investigation or otherwise, to the Justice Center upon request, in the form and manner requested. Such information must be provided in a timely manner so as to support completion of the investigation subject to the time limits set forth in paragraph (d) of this section. Failure to provide such information in response to a reasonable request by the Justice Center shall be considered a violation of the facility's responsibilities under these regulations. The department and the Justice Center shall, except as otherwise prohibited by law, be permitted to share information obtained in their respective investigations of incidents subject to the reporting requirements of this section.

(g) incident review committees are established; provided, however, that the Department may consider and approve requests for exemptions on a case-by-case basis, based on the size of the facility or provider agency or other relevant factors. A request for an exemption must include a written justification. Such committee shall consist of persons identified by the director of the facility, including some members of the following: at least two (2) direct support staff, two (2) licensed health care practitioners, two residents and two family members, but not the director of the facility or provider agency. Such committee shall meet to: (i) review the timeliness, thoroughness and appropriateness of the facility or provider agency’s responses to reportable incidents; (ii) recommend additional opportunities for improvement to the director of the facility or provider agency, if appropriate; (iii) review incident trends and patterns concerning reportable incidents; and (iv) make recommendations for the director of the facility or provider agency to assist in reducing reportable incidents. Such meetings shall occur within one month following the issuance of findings associated with the investigation of an incident, and in the absence of such incident, no less than quarterly. Members of the committee shall be trained in confidentiality laws and regulations, and shall comply with section 74 of the Public Officers Law.

(h) The department and the Justice Center may undertake investigations even if the facility is also investigating a matter. Investigations undertaken by the department shall conform to the elements specified in paragraph (a) of this section. Department investigations shall also comply with paragraphs (c), (d) and (e) of this section, except that the deadline for providing the final report of the investigation to the Justice Center shall be fifty days from the date the Justice Center accepted a report of abuse or neglect, and sixty days from the date the Justice Center accepted a report of a significant incident.

(i) The department or the Justice Center may direct a facility to cease its investigation, or to modify its investigation, even if such direction results in practice which varies from the requirements of subparagraphs (a) through (g) of this section. The facility shall maintain documentation of such directives within the facility's records. Such documentation shall include the name of the department or Justice Center representative issuing the directive and the date when the facility was directed to cease its investigation.

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016

Part 488 - ADULT CARE FACILITIES STANDARDS FOR ENRICHED HOUSING

Doc Status: 
Complete
Effective Date: 
Wednesday, November 21, 2018
Statutory Authority: 
Social Services Law, Sections 20(3)(d), 34(3)(f), 131-o, 460--460-g, 461--461[i]

Section 488.1 - Applicability.

 

Section 488.1 Applicability. (a) This Part applies to enriched housing programs as defined herein.

(b) Parts 485 and 486 of this Title apply to enriched housing programs, except as specifically limited in this Part.

(c) This Part does not apply to any housing projects established pursuant to the Private Housing Finance Law, the Public Housing Law, the former Membership Corporations Law or the Not-for-Profit Corporation Law except for those distinct programs operated by such projects which provide an organized program of supervision or personal care and as such are approved and certified by the department.

(d) Any person, partnership, corporation, organization, agency, government unit, or other entity which operates an enriched housing program is subject to the jurisdiction of the department and must comply with requirements of this Part or cease operation unless such requirements are waived pursuant to section 488.3(f) of this Part.

 

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Section 488.2 - Definitions

488.2 Definitions. (a) An enriched housing program means an adult care facility established and operated for the purpose of providing long-term residential care to five or more adults, primarily persons 65 years of age or older, in community-integrated settings resembling independent housing units. Such programs must provide or arrange for the provision of room, and provide board, housekeeping, personal care and supervision. 

(b) For the purposes of this Part an enriched housing program will be considered to be serving persons primarily 65 years of age or older if no more than 25 percent of the residents are under 65 years of age and each resident is at least 55 years of age.

(c) The following additional definitions shall apply to facilities subject to the Justice Center as defined at paragraph (8) of this subdivision (c):

(1) Abuse shall mean inappropriate physical contact with a resident of an adult care facility while the resident is under the supervision of the facility, which harms or is likely to harm the resident. Inappropriate physical contact includes, but is not limited to, striking, pinching, kicking, shoving, and bumping. Abuse shall, in addition, include those actions incorporated within the definitions physical abuse, sexual abuse, psychological abuse, deliberate inappropriate use of restraints, use of aversive conditioning, obstruction of reports of reportable incidents, and unlawful use or administration of a controlled substance all as defined in section 488 of the Social Services Law. However, for purposes of reporting, psychological abuse need not be supported by a clinical assessment in order to be reported, so long as there is reasonable cause to suspect that such abuse has occurred.

(2) Neglect shall mean the failure to provide timely, consistent, safe, adequate and appropriate services, treatment and/or care to a resident of an adult care facility while the resident is under the supervision of the facility, including but not limited to: personal care, nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living. Neglect shall, in addition, include those actions incorporated within the definition of neglect set forth in section 488 of the Social Services Law.

(3) Reasonable cause to suspect shall mean that, upon review of the circumstances, there is sufficient evidence for a person to believe that a reportable incident has occurred.

(4) Reportable incident shall include abuse, neglect, and significant incident as defined in this Part.

(5) Justice Center shall mean the New York State Justice Center for the Protection of People with Special Needs, as established pursuant to Chapter 501 of the Laws of 2012.

(6) Custodian means a director, operator, employee or volunteer of a facility or provider agency as defined in section 488 of the Social Services Law; or a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to a facility or provider agency pursuant to contract or other arrangement that permits such person to have regular and substantial contact with individuals who are cared for by the facility or provider agency.

(7) Department shall mean the New York State Department of Health.

(8) Facility subject to the Justice Center shall mean enriched housing programs having a capacity of eighty (80) or more beds, and in which at least 25% (twenty-five percent) of the residents are persons with serious mental illness as defined by section 1.03(52) of the Mental Hygiene Law, but not including an enriched housing program which is authorized to operate 55% (fifty-five percent) or more of its total licensed capacity of beds as assisted living program beds.

(9) Significant incident shall mean an incident, other than an incident of abuse or neglect, that because of its severity or the sensitivity of the situation may result in, or has the reasonably foreseeable potential to result in, harm to the health, safety or welfare of a person receiving services and shall include but not be limited to:

(i) conduct between persons receiving services, or between such persons and third parties other than a custodian, that would constitute abuse if committed by a custodian; or

(ii) conduct on the part of a custodian, which is inconsistent with a service recipient's individual treatment plan or individualized educational program, generally accepted treatment practices and/or applicable federal or state laws, regulations or policies and which impairs or creates a reasonably foreseeable potential to impair the health, safety or welfare of a person receiving services, including but not limited to:

(a) unauthorized seclusion, which shall mean the placement of a person receiving services in a room or area from which he or she cannot, or perceives that he or she cannot, leave at will;

(b) unauthorized use of time-out, which shall mean the use of a procedure in which a person receiving services is removed from regular programming and isolated in a room or area for the convenience of a custodian, or as a substitute for programming but shall not include the use of a time-out as an emergency intervention to protect the health or safety of the individual or other persons;

(c) except for the unlawful use or administration of a controlled substance, as provided for in paragraph (1) of this subdivision, the administration of a prescribed or over-the-counter medication, which is inconsistent with a prescription or order issued for a service recipient by a licensed, qualified health care practitioner, and which has an adverse effect on a service recipient. For purposes of this paragraph, "adverse effect" shall mean the unanticipated and undesirable side effect from the administration of a particular medication which unfavorably affects the well-being of a service recipient;

(d) inappropriate use of restraints, which shall mean any use of a restraint; or

(iii) Misappropriation of Property shall mean the theft, unauthorized use or removal, embezzlement or intentional destruction of the resident’s personal property, including but not limited to money, clothing, furniture, appliances, jewelry, works of art and such other possessions and articles belonging to the resident, regardless of monetary value.

(iv) Mistreatment, which shall mean confinement, isolation, intimidation, abandonment or use of physical restraints on a resident of an adult care facility while the resident is under the supervision of staff.

(v) any other conduct identified in regulations of the department, pursuant to guidelines or standards established by the Justice Center.
 

 

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016

Section 488.3 - General provisions.

 

488.3 General provisions. (a) The operator of an enriched housing program must provide, through its employees and agents, an organized program of supervision, care, and services which:

(1) meets the standards set forth in this Part;

(2) assures the protection of resident rights; and

(3) promotes the social, physical and mental well-being of the residents.

(b) The operator must operate and maintain the enriched housing program in compliance with the regulations of the department and with applicable statutes and regulations of other State agencies and local governmental jurisdictions.

(c) Nothing contained within this Part, or Parts 485 and 486 of this Title, prohibits an operator from exceeding the requirements of this Part.

(d) An operator must afford any officers, duly authorized employees or agents of the department access at any time to the residents, grounds, and buildings and any records relating to resident care and services.

(e) The operator of an enriched housing program issued an operating certificate by the department must maintain, make available for inspection and submit such statistical, financial or other information, records or reports, relating to the enriched housing program as the department may require.

(f) Waivers. (1) Upon request by the operator, the department may waive nonstatutory requirements of this Part and may permit an operator to establish another method of achieving the intended outcome of the waived regulation.

(2) An operator must request and receive written approval from the department prior to instituting any alternative to the requirements of this Part. Applications for waivers must be submitted in writing to the appropriate regional office of the department and must include:

(i) the specific regulations for which a waiver is sought;

(ii) the reasons the waiver is necessary; and

(iii) a description of what will be done to achieve or maintain the intended outcome of the regulations and to protect the health, safety and well-being of the residents.

(3) The department may require that the operator make physical plant modifications or adopt special methods or procedures to protect resident health and safety and will grant written approval of an application for a waiver only upon determining that the proposed waiver will not adversely affect the health, safety and well-being of residents.

(4) The department must make a determination on a request for waiver within 90 days of receipt of all required information from the operator.

(5) Failure to adhere to the terms of the approved waiver will result in recision of the approval and imposition of penalties for the applicable regulation which is being violated.

 

Doc Status: 
Complete

Section 488.4 - Admission and retention standards.

488.4 Admission and retention standards. (a) An operator may admit, retain and care for only those individuals who require the services the operator is certified to provide.

(b) An operator shall not exclude an individual on the sole basis that such individual is a person who primarily uses a wheelchair for mobility, and shall make reasonable accommodations to the extent necessary to admit such individuals, consistent with the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. and with the provisions of this section.

(c) An operator must not accept nor retain any person who:

(1) needs continual medical or nursing care or supervision as provided by an acute care facility or a residential health care facility certified by the Department of Health;

(2) suffers from a serious and persistent mental disability sufficient to warrant placement in an acute care or residential treatment facility operated or certified by an office of the Department of Mental Hygiene;

(3) requires health, mental health, or other services which cannot be provided by local service agencies;

(4) causes, or is likely to cause, a danger to himself/herself or others;

(5) repeatedly behaves in a manner which directly impairs the well-being, care, or safety of the resident or other residents or which substantially interferes with the orderly operation of the enriched housing program;

(6) requires continual skilled observation of symptoms and reactions or accurate recording of such skilled observations for the purpose of reporting on a medical condition to the resident's physician;

(7) refuses or is unable to comply with a prescribed treatment program, including but not limited to a prescribed medications regimen when such refusal or inability causes, or is likely to cause, in the judgment of a physician, life-threatening danger to the resident or others;

(8) is chronically bedfast;

(9) is chronically in need of the physical assistance of another person in order to walk;

(10) is chronically in need of the physical assistance of another person to climb or descend stairs, unless assignment on a floor with ground-level egress can be made;

(11) has chronic unmanaged urinary or bowel incontinence;

(12) suffers from a communicable disease or health condition which constitutes a danger to other residents and staff;

(13) is dependent on medical equipment unless it has been demonstrated that:

(i) the equipment presents no safety hazard;

(ii) use of the equipment does not restrict the individual to his/her room, impede the individual in the event of evacuation, or inhibit participation in the routine activities of the home;

(iii) use of the equipment does not restrict or impede the activities of other residents;

(iv) the individual is able to use and maintain the equipment with only intermittent or occasional assistance from medical personnel;

(v) assistance in the use or maintenance of the equipment, if needed, is available from local social services agencies or approved community resources;

(vi) each required medical evaluation attests to the individual's ability to use and maintain the equipment;

(14) has chronic personal care needs which cannot be met by enriched housing staff or approved community providers;

(15) is not self-directing; i.e., requires continuous supervision and is not capable of making choices about his/her activities of daily living; or

(16) engages in alcohol or drug use which results in aggressive or destructive behavior.

(d) An operator must not admit nor retain persons in excess of the capacity specified on the operating certificate.

(e) An operator must not admit nor retain an individual without a determination being made that the enriched housing program can support the physical and social needs of the resident. Such determination must be based upon:

(1) a medical evaluation (DSS-3122 or an approved substitute) written and signed by a physician, physician assistant or nurse practitioner, which includes:

(i) the date of examination, significant medical history and current conditions, known allergies, the prescribed medication regimen, including information on the applicant's ability to self-administer medications, recommendations for diet, exercise, recreation, frequency of medical examinations and assistance needed in the activities of daily living;

(ii) a statement that a resident is medically or mentally suited for care in the enriched housing program;

(iii) a statement that the resident does not require placement in a hospital or residential health care facility; and

(iv) a dated statement indicating that the physician, physician assistant or nurse practitioner has physically examined the resident within 30 days prior to the date of admission, or for required annual evaluations within 30 days prior to the date of the report.

(2) an interview between the enriched housing program coordinator, or a designee responsible for admission and retention decisions and the resident and his/her representative(s), if any. Each applicant interview must:

(i) include an explanation of the conditions of residency including, but not limited to, the admission agreement, resident rights and responsibilities, enriched housing program rules and regulations and the personal allowance protections available to Supplemental Security Income or Home Relief recipients;

(ii) ascertain that the enriched housing program can:

(a) meet the physical needs and personal care needs of the resident, including dietary needs occasioned by cultural or religious practice or preference or medical prescription; and

(b) meet the psycho-social needs of the resident.

(iii) be summarized in writing, including the date of the interview and identification of those present.

(3) a mental health evaluation if a proposed resident has a known history of chronic mental disability, or the medical evaluation or resident interview suggests the existence of such a disability. Such evaluation must be a written and signed report from a psychiatrist, physician, registered nurse, certified psychologist or certified social worker who has experience in the assessment and treatment of mental illness, which includes:

(i) a significant mental health history and current conditions;

(ii) a statement that the resident is mentally suited for care in the enriched housing program;

(iii) a statement that the resident does not evidence need for placement in a hospital or residential treatment facility;

(iv) a dated statement indicating that the person signing the report has conducted a face-to-face examination of the resident dated within 30 days prior to admission.

(4) a functional assessment completed on a form prescribed or approved by the department. Each functional assessment must be a written report prepared by the program coordinator, case manager, or consultant registered nurse and must address:

(i) personal activities of daily living;

(ii) instrumental activities of daily living;

(iii) sensory impairments;

(iv) behavioral characteristics;

(v) personality characteristics; and

(vi) daily habits.

(f) The following assessments must be conducted whenever a change in a resident's condition warrants and no less than once every 12 months:

(1) a medical assessment;

(2) a mental health evaluation, if needed; and

(3) a functional assessment.

(g) The operator must assist an applicant in obtaining any required evaluations.

(h) The operator must assist a resident who cannot be retained because of the presence of one or more of the conditions set forth in subdivision (c) of this section to find an alternative placement and must document such assistance.

(i) Notwithstanding subdivision (e) of this section, medical evaluations need not be required of a competent adult who relies upon or is being furnished treatment by spiritual means through prayer, in lieu of medical treatment, in accordance with the tenets and practices of a recognized church or religious denomination of which the resident is a member or a bona fide adherent. In such cases the operator must:

(1) require documentation of the resident's standing as a member; and

(2) adhere to the admission and retention standards set forth in subdivision (c) of this section.

(j) The operator must not admit nor accept for return an individual directly from a general or special hospital, psychiatric center, developmental center, skilled nursing or health-related facility without a signed statement from the referral source which details significant medical conditions, prescribed health or mental health regimens and such psycho-social information as may be available to help the operator plan an adequate level of care for the resident. This statement may substitute for the medical and mental health evaluations or functional assessment if the requirements of subdivision (d)(1), (3) and (4) of this section are met.

(k) The operator must give each applicant at or prior to the admissions interview copies of:

(1) the admission agreement;

(2) the statement of resident rights;

(3) the enriched housing program rules, if any, relating to resident activities, office and visiting hours and other pertinent information concerning the operation of the program;

(4) a fact sheet about the Long-Term Ombudsman Program, if made available by the program; and

(5) the listing of legal services or advocacy agencies made available to the program by the department.

(l) The operator must provide to each applicant for admission and to the applicant's representative, if any, an opportunity to review the most recent inspection report issued by the department to the enriched housing program.

(1) If the applicant or resident is sight-impaired or hearing-impaired or otherwise unable to comprehend English or printed matter, the operator must arrange for the conduct of the required admission interview and transmission of the contents of the admission agreement, the statement of rights and responsibilities and enriched housing information in a manner comprehensible to the applicant.

Doc Status: 
Complete
Effective Date: 
Wednesday, November 21, 2018
Statutory Authority: 
Social Services Law, Sections 461 and 461-l(5)

Section 488.5 - Resident protections

488.5 Resident protections. (a) Residents rights. (1) Each operator must adopt a statement of rights and responsibilities of residents and treat each resident in accord with the principles contained in the statement. 

(2) A copy of the statement of rights issued by the department must be provided to each resident. 

(3) The following rights and protections must be afforded by the operator to each resident. Each resident has the right: 

(i) to receive courteous, fair and respectful care and treatment, and not be physically, mentally or emotionally abused, or subject to any occurrence which would constitute a reportable incident; 

(ii) to exercise his/her civil rights and religious liberties, and to make personal decisions, including choice of physician, and to have the assistance and encouragement of the operator in exercising these rights and liberties; 

(iii) to have private written and verbal communications or visits with anyone of the resident's choice, or to deny or end such communications or visits; 

(iv) to send and receive mail or any correspondence unopened and without interception or interference; 

(v) to present grievances or recommendations on his/her own behalf or the behalf of other residents to the program coordinator or staff, the Department of Social Services, other government officials, or any other parties without fear of reprisal or punishment; 

(vi) to join other residents or individuals inside or outside the enriched housing program to work for improvements in resident care; 

(vii) to confidential treatment of personal, social, financial and health records; 

(viii) to have privacy in treatment and in caring for personal needs; 

(ix) to receive a written statement (admission agreement) of the services regularly provided by the operator, those additional services which will be provided if needed or requested and the charges (if any) of these additional services; 

(x) to manage his/her own financial affairs; 

(xi) to not be coerced or required to perform the work of staff members or contractual work, and if the resident works, to receive fair compensation from the operator; 

(xii) to have security for any personal possessions if stored by the operator; 

(xiii) to have recorded on the program's accident or incident report the resident's version of the events leading to the accident or incident; and 

(xiv) to object if the operator terminates the resident's admission agreement against his/her will. 

(b) Grievances and recommendations. (1) The operator must: 

(i) establish and maintain a system to receive and respond to grievances and recommendations for changes and improvements in the operation of an enriched program which are presented by residents; and 

(ii) assist and enable residents to participate in planning for changes or improvements in enriched housing program operations and programs.

(iii) The operator of a facility subject to the Justice Center shall post the procedures for the submission of grievances and recommendations, including the identity of staff to whom the grievances and recommendations may be addressed. The operator of a facility subject to the Justice Center shall also ensure that the telephone number for the Justice Center's hotline for the reporting of reportable incidents is conspicuously displayed in areas accessible to residents, staff, volunteers, and contractors.

(2) The system referenced by paragraph (1) of this subdivision must include procedures for: 

(i) confidential submission of grievances and recommendations, including identification of staff to whom grievances and recommendations may be made; 

(ii) evaluation and the timely initiation of action or resolution which will protect the rights of those involved; and 

(iii) informing residents of actions taken and resolutions of the grievances or recommendations. 

(c) Admission agreements. (1) Each operator must execute with, and provide to, each resident at or prior to admission and periodically thereafter as changes necessitate, a written admission agreement, which constitutes the entire agreement of the parties and must contain at least the provisions required by paragraph (7) of this subdivision. 

(2) The admission agreement must be dated and signed by the operator, the resident and, if appropriate, another person acting as an agent for the resident. 

(3) The operator and resident must comply with all provisions of the admission agreement. 

(4) Any modification or provision of the agreement which is not in compliance with law or regulation is null and void. 

(5) Any waiver by the resident of any provision of the admission agreement required by law or regulation is null and void. 

(6) The admission agreement must be printed in legible, easily-read type. 

(7) The admission agreement must contain, at a minimum: 

(i) the effective date of the agreement; 

(ii) the due dates for payment; 

(iii) a list of the services, material, equipment and food required by law or regulation to be provided to a resident; 

(iv) the basic monthly, weekly or daily payment for services, material, equipment and food required by law or regulation to be provided to a resident; 

(v) a detailed schedule of any other services, materials, equipment and food which the operator agrees to furnish and supply to the residents during the period of the admission agreement. Such schedule must include the basis for the charges for such supplemental services and supplies; 

(vi) a guarantee that charges for supplemental services and supplies provided pursuant to subparagraph (v) of this paragraph must be made only at the resident's option and only for services and supplies actually provided to the resident; 

(vii) the conditions and procedures under which the operator may adjust the basic monthly, weekly or daily rate or charges for supplemental services and supplies. Such adjustments may occur only: 

(a) upon the express written approval and authority of the resident or his/her legal representative, if any; or 

(b) in the event of an emergency which affects a resident, and then only if such additional charges are reasonable and necessary for services, material, equipment and food furnished and supplied to the resident during such emergency; or 

(c) as a result of the provision of additional care, services or supplies, upon the express order of the primary physician of the resident; or 

(d) upon the provision of 30 days written notice to the resident and his/her representative, if any, of additional charges and expenses due to increased cost of maintenance and operation; 

(viii) the actual rate charged the resident and accepted by the operator in satisfaction of the admission agreement; 

(ix) a statement that neither the operator, program coordinator nor any employee or agent of the enriched housing program can accept any remuneration, or gratuity in any form for any services provided or arranged for as specified by statute, regulation or admission agreement; 

(x) a list of any and all money, property or things of value given or promised to be given to the operator on admission or at any time, including any agreements made by third parties for payments for the benefit of a resident; 

(xi) a statement that the operator offers to each resident who is a recipient of Supplemental Security Income (SSI) or Home Relief (HR) or representative payee, an opportunity to place funds for incidental use in an enriched housing program maintained resident account, and a statement to indicate resident and representative payee acceptance or rejection of this offer; 

(xii) a statement that a signator other than the resident, who does not choose to place the resident's personal allowance funds in an enriched housing program maintained account, will comply with the Supplemental Security Income or Home Relief personal allowance requirement; 

(xiii) the charge(s), which may not exceed the basic rate, to be levied for reserving a residential space in the event of temporary absence of the resident, and the length of time the reservation will apply; 

(xiv) the terms, conditions and the time frames under which the resident or operator may terminate the occupancy; 

(xv) the grounds under which the operator may terminate the admission 
agreement without the consent of the resident; 

(xvi) the operator's obligation to: 

(a) provide at least 30 days written notice to the resident, the resident's next of kin, and the person designated in the admission agreement as the responsible party, when the admission agreement is to be terminated, specifying the grounds for termination and date of discharge and advising that the resident has the right to object to, and contest, an involuntary termination; 

(b) provide a list of free local legal services and advocacy resources, including the local social services district; and 

(c) obtain prior court approval if the resident objects to the involuntary termination; 

(xvii) provisions for a prorated refund of advance payments based on the rate, the actual days of residency, room reservation and the terms for notice; 

(xviii) a guarantee that upon termination of the admission agreement, the resident or the resident's representative will receive a final written statement of his or her payment account and personal account and immediately receive any monies, property or things of value held in trust or in custody by the operator or which come into possession of the operator after discharge or transfer; 

(xix) a statement that the resident agrees to provide the operator, prior to admission and at least every 12 months thereafter, a dated and signed medical evaluation which conforms to the requirements of section 488.4(d)(1)(i)-(iv) of this Part; 

(xx) a statement that the resident agrees to inform the operator of changes in health status or medications, as they occur; 

(xxi) a statement that the resident agrees to obey all reasonable rules of the enriched housing program and to respect the rights and property of the other residents; and 

(xxii) a statement that waiver by a resident of any provision of the admission agreement is null and void. 

(d) An operator must not enter into any contract or agreement with the resident or the resident's next of kin or sponsor for life care of the resident in the enriched housing program. 

(e) Termination of admission agreements. (1) Every resident has the right to terminate his/her admission agreement. 

(2) Where notice of termination has been given by the operator and the resident leaves voluntarily, it is not necessary for the operator to commence a special proceeding pursuant to paragraph (15) of this subdivision. 

(3) No operator may terminate an admission agreement and involuntarily discharge a resident except for the following reasons: 

(i) the resident requires continual medical or nursing care; 

(ii) the resident requires services or supervision that cannot be provided or arranged for by the operator; 

(iii) the resident's behavior poses imminent risk of death or imminent risk of serious physical harm to himself/herself or anyone else; 

(iv) the resident fails to make timely payment for all authorized charges, expenses, and other assessments, if any, for services including use and occupancy of the premises, materials, equipment and food which the resident has agreed to pay pursuant to the resident's admission agreement; 

(v) the resident repeatedly behaves in a manner that directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the enriched housing program; 

(vi) the enriched housing program has had its operating certificate limited, revoked or temporarily suspended or the operator has voluntarily surrendered the operating certificate of the enriched housing program to the department; or 

(vii) a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law and is providing for the orderly transfer of all residents in the enriched housing program to other facilities or is making other provision for the resident's continued safety and care. 

(4) If failure to make timely payment resulted from an interruption in the receipt by the resident of any public benefits to which he/she is entitled, no admission agreement may be involuntarily terminated unless the operator, during the 30-day notice period, assists the resident in obtaining such benefits, or any other available supplemental public benefits. Documented failure of the resident to cooperate with such efforts by the operator is considered evidence of assistance. 

(5) In order to terminate the admission agreement of a resident and discharge him/her from the enriched housing program, the operator of an enriched housing program must give at least 30 days written notice, on a form prescribed by the department, to: 

(i) the resident; 

(ii) the resident's next of kin, if known; and 

(iii) any person designated in the admission agreement as the responsible party other than next of kin, if any. 

(6) The termination notice must indicate: 

(i) the reason for termination; 

(ii) the date of termination; 

(iii) that the resident has the right to object to the termination of the agreement and the subsequent discharge; and 

(iv) that if the resident does object, he/she may remain in the enriched housing program while the operator commences a special proceeding pursuant to paragraph (15) of this subdivision only until such time that the court finds in favor of the operator. 

(7) In addition to the prescribed termination notice, the operator must furnish to the resident a list of agencies, including the Long-Term Care Ombudsman Program, which provide free legal services, and agencies engaged in resident advocacy services within the geographic vicinity of the enriched housing program. Such lists must be provided or approved by the department and must include names, addresses and telephone numbers of the advocacy program. 

(8) A copy of the termination notice must be filed by the operator with the appropriate regional office of the department within five days after the notice is served upon the resident. 

(9) Transfer of a resident may be arranged without 30 days notice under the following circumstances: 

(i) when a resident develops a communicable disease, medical or mental conditions, or sustains an injury such that continual skilled medical and nursing services are required, arrangements must be made by the operator for appropriate professional evaluation and transfer to an appropriate facility; and 

(ii) in the event that a resident's behavior poses an imminent risk of death or imminent risk of serious physical harm to himself/herself or others, the operator must arrange for transfer of the individual to an appropriate and safe location; in the event that a resident's behavior poses an imminent risk of death or serious physical harm to himself/herself or any other person, the operator should, whenever possible, seek the assistance of a peace officer, acting pursuant to the officer's special duties, or a police officer who is a member of an authorized police department or force or a sheriff's department, in transferring the resident to a safe location. 

(10) When the basis for a transfer no longer exists, and the resident is deemed appropriate for placement in the enriched housing program, the operator must re-admit the resident, as long as the involuntary termination proceedings have not been completed. 

(11) Transfer of a resident without notice of termination is not deemed a termination of the admission agreement. Such transfer does not relieve the operator from the requirement of proceeding, subsequent to the removal of the resident, to terminate the admission agreement. 

(12) When the operator proceeds to terminate the admission agreement of a resident transferred without notice of termination, the operator must arrange for the written notice to be hand-delivered to the resident at the location to which he/she has been removed. If such hand-delivery is not possible, the notice must be given by any of the methods provided by law for personal service upon a natural person (section 308, Civil Practice Law and Rules). 

(13) When a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law and is providing for the orderly transfer of all residents in the enriched housing program to other facilities or is making other provisions for the residents' continued safety and care, the receiver may terminate admission agreements and arrange for the transfer of all residents to appropriate settings without regard to the notice and court review requirements of this subdivision. 

(14) Except as described in paragraph (11) of this subdivision, a receiver must adhere to the requirements of this subdivision in any instance where termination of an admission agreement is not directly related to the closure of an enriched housing program. 

(15) If the resident indicates to the operator within 30 days of receipt of notice that he/she objects to the termination of the agreement or if at the end of 30 days the resident remains in the enriched housing program, the operator must institute a special proceeding pursuant to section 461-h of the Social Services Law prior to termination and discharge. 

(16) While legal action is in progress, the operator must not: 

(i) seek to amend the admission agreement in effect as of the date of the notice of termination; 

(ii) fail to provide any of the care and services required by department regulations and the admission agreement; or 

(iii) engage in any action to intimidate or harass the resident. 

(17) Both the resident and the operator are free to seek any judicial relief to which they may be entitled. 

(18) The operator must assist any resident proposed to be transferred or discharged pursuant to this subdivision to the extent necessary to assure, whenever practicable, the resident's placement in care settings which are adequate, appropriate and consistent with the resident's wishes. 

(19) In the event that an enriched housing resident holds a separate lease for the apartment he/she occupies, termination of the admission agreement does not constitute termination of the lease. 

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Effective Date: 
Wednesday, February 10, 2016

Section 488.6 - Resident funds and valuables.

 

488.6 Resident funds and valuables. (a) Funds. (1) The operator must issue a receipt to a resident for any funds received for:

(i) payment of the facility rate;

(ii) payment of appropriate supplemental charges;

(iii) payment of funds owed to the operator by the resident;

(iv) deposits to a personal allowance account established pursuant to section 485.12 of this Title;

(v) any other funds held in custody for the resident; and

(vi) any other funds received by the operator from the resident.

(2) An operator who receives any funds from a resident must issue a signed receipt to the resident which contains the following information:

(i) the date of the receipt;

(ii) the amount of funds received;

(iii) the purpose of the transaction;

(iv) the name of the resident; and

(v) the signature of the person receiving the funds.

(3) Notwithstanding paragraphs (1) and (2) of this subdivision, an operator may establish a system other than individual receipts to document the exchange of funds for incidental shopping done for a resident. Such a system must have the prior written approval of the department.

(4) Resident personal allowance accounts or other resident personal funds must not be mingled with the personal funds of the operator or the operating funds of the facility, or become an asset of the operator.

(5) Personal allowance accounts and accounts for other resident personal funds must be separate and distinct from each other and from any other accounts.

(6) Upon change of operator, the current operator must transfer all records to the proposed operator and provide the proposed operator with a written statement of all resident personal allowance accounts, and other resident accounts held in custody for the residents. This statement must document that the balance being transferred in each resident account is true and accurate as of the date of the proposed transfer, and must be confirmed by resident signature(s).

(7) Upon change of operator, the new operator must assume, in writing, responsibility for account balances of funds of residents turned over upon the change of operator, together with responsibility for all requirements of this section.

(8) Records of all transactions must be maintained as part of the enriched housing program records.

(b) Personal allowance. (1) Each resident who is receiving Supplemental Security Income (SSI) or Home Relief (HR) benefits, and who is entitled to a monthly personal allowance by section 131-o of the Social Services Law or section 352.8(c) of this Title, must receive that allowance in accordance with the requirements of section 485.12 of this Title and subdivision (c) of this section.

(2) In the event that the resident negotiates the full SSI or HR check to the operator, distribution of the personal allowance must be made to the resident within two banking days of the transaction.

(3) The operator must obtain written acknowledgement monthly from each resident, confirming receipt of his/her personal allowance.

(c) Personal allowance accounts. (1) At the time of admission and at the time of the first increase in the personal allowance occurring in any calendar year, the operator must in writing, offer an SSI or HR recipient or the recipient's representative, if any, an opportunity to place personal allowance funds for incidental use in an enriched housing program maintained account.

(2) The operator must provide for the safekeeping and accountability of a personal allowance account.

(3) The operator must hold personal allowance funds in custody for the sole use of the resident and must not use these funds for any other purpose.

(4) No service fee shall be charged by the operator for maintaining a personal allowance account for a resident who is in receipt of SSI or HR.

(5) Residents must have access to personal allowance accounts at least four hours a day, daily, except Saturdays, Sundays, and legal holidays. The access schedule must be posted and may not be changed without five days advance notice.

(6) Upon request, each resident must have the opportunity, during scheduled access hours, to examine his/her personal allowance account record including deposits, withdrawals and current balance.

(7) If the operator deposits resident personal allowance funds in individual or collective interest-bearing bank accounts, the operator must develop a written procedure for the equitable distribution of interest to each resident's account. Such distribution must be made quarterly.

(8) The operator must maintain individual records for each resident who has a personal allowance account, showing all deposits, withdrawals and the current balance.

(9) The operator must document all personal allowance transactions on department form (DSS-2854), Personal Allowance Ledger, and maintain all paid bills, vouchers and other appropriate payment and receipt documentation in the manner prescribed by the department.

(10) The operator must reconcile personal allowance account balances to the total personal allowance funds maintained by the enriched housing program at least monthly. The reconciliation requirement must be met by maintaining a Personal Allowance Summary (DSS-2855).

(11) No alternative system of recordkeeping for resident personal allowance accounts may be substituted for the above without the prior written consent of the department.

(12) At least quarterly, the operator must give each resident who has a personal allowance account, a statement showing total deposits, withdrawals and current balance of the resident's account and secure the resident's acknowledgement in writing, of the accuracy of the statement.

(13) The operator must not require a resident to maintain a personal allowance account at the facility.

(14) The operator is not required to maintain any personal allowance account in amounts in excess of the SSI resource limit.

(15) The resident may terminate the personal allowance account at any time.

(d) Other funds held in custody. (1) The operator may offer an SSI or HR recipient or any other resident the opportunity to place funds, other than personal allowance funds provided pursuant to section 485.12 of this Title, in the operator's custody.

(2) Such funds must not be mingled with any personal allowance funds maintained pursuant to subdivision (b) of this section.

(3) The operator must maintain records and provide for the security of all funds which the resident has voluntarily given to the operator and the operator has voluntarily accepted to hold in his or her custody or to exercise control over.

(4) The operator must obtain written authorization from the resident to hold the resident's funds.

(5) Records of all transactions must be maintained as part of the enriched housing program records.

(e) Resident property and valuables. (1) The operator may offer a resident the opportunity to place property or items of value in the operator's custody.

(2) The operator must maintain inventory records and provide for the security of all property or items of value which the resident has voluntarily given to the operator to hold in custody or to exercise control over.

(3) The operator must obtain written authorization from the resident to hold property or items of value and must provide each resident with a receipt for the items placed with the operator.

(4) Resident property or items of value must be segregated from the assets of the operator.

(5) Records of all transactions must be maintained as part of the enriched housing program records.

(f) Return of resident funds and valuables. (1) At the time of discharge or termination of the admission agreement but in no case more than three business days after the resident leaves the enriched housing program, the operator must provide the resident or the resident's repre sentative with:

(i) a final written accounting of the resident's payment and personal fund accounts;

(ii) a check for the outstanding balance, if any; and

(iii) any property or things of value held in trust or in custody by the operator.

(2) The operator must refund, in accordance with the admission agreement, any advance payment(s) made by the resident.

(3) The operator must return to the resident, representative or other appropriate individual or agency, any property or items of value of the resident which come into the possession of the operator after discharge or transfer.

(4) Upon the death of a resident, the operator must contact the next of kin or legal representative and arrange for the transfer of all property of the individual. When the whereabouts of the next of kin or legal representative are unknown, the operator must contact the appropriate surrogate's court to arrange for the transfer of the property.

 

Doc Status: 
Complete

Section 488.7 - Resident services

488.7 Resident services. (a) The operator will be responsible for the provision of resident services, which will include, at a minimum, supervision, personal care, case management, activities, housekeeping and food service as defined in this section and section 488.8 of this Part.

(b) Supervision. (1) Supervision includes:

(i) knowledge of the general whereabouts of each resident;

(ii) identification of abrupt or progressive changes in behavior or health status of each resident;

(iii) assistance to and encouragement of residents in performing basic activities of daily living including:

(a) appropriate nutritional intake;

(b) personal hygiene;

(c) participation in enriched housing program and community programs; and

(d) basic money management.

(iv) investigation of incidents involving resident health, safety, injury, occurrences which would constitute a reportable incident, or death.

(2) In the event that a resident is absent from the enriched housing program and the resident's whereabouts are unknown, the operator shall initiate efforts to find the resident and, if the absence exceeds 24 hours:

(i) immediately notify the resident's next of kin or representative;

(ii) immediately notify the appropriate law enforcement agency;

(iii) notify the appropriate regional office of the department on the first available working day; and

(iv) send a copy of the Incident Report (DSS-3123) to the appropriate regional office of the department within five working days.

(3) In the event that a resident is unable or unwilling to consume regular meals for two consecutive days, the operator must immediately notify the resident's personal physician, act on the physician's instructions, and note the call and instructions in the resident's record.

(4) In the event that a resident requires emergency assistance because of illness or injury, the operator must:

(i) protect the resident's safety and comfort;

(ii) secure necessary emergency medical assistance; and

(iii) if necessary, arrange for the transfer of the resident to an appropriate medical facility.

(5) In the event that a resident becomes ill or displays a progressive deterioration of health or behavior, the operator must:

(i) protect the resident's safety and comfort;

(ii) obtain medical evaluation and services; and

(iii) if necessary, arrange for the transfer of the resident to an appropriate medical facility.

(6) In the event of illness or injury, the operator must also:

(i) notify the resident's personal physician or, in the event such physician is not available, a qualified alternate;

(ii) notify the resident's representative, or next of kin, if known;

(iii) upon transfer of a resident to a health, mental health or other residential care facility, send an approved transfer form (or a copy of the DSS-3122 and the personal data sheet) and such other information as the receiving facility requests and the operator is required to maintain. In emergency transfers, this information may be telephoned to the receiving facility and written information sent within 72 hours of the transfer; and

(iv) make a notation of the illness or injury and transfer, if any, in the resident's record to include all items applicable in this paragraph. The incident report form may be substituted to record all accidents or illnesses.

(7) In the event that a resident exhibits behavior which constitutes a danger to himself/herself or others, the operator must:

(i) arrange for appropriate professional evaluation of the resident's condition;

(ii) if necessary, arrange for the transfer of the individual to a facility providing the proper level of care; and

(iii) notify the resident's representative or next of kin, if known.

(8) In the event of the death of a resident, the operator must:

(i) immedicately take necessary action to notify the resident's next of kin, or representative, if known;

(ii) immediately take necessary action to notify the appropriate local authorities;

(iii) immediately report the death to the appropriate regional office of the department of health by telephone and submit a copy of the Incident Report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the death, and

(iv) immediately following the discovery of the death and submit a written report to the Justice Center, on a form prescribed by the Justice Center, if the resident received services from a mental hygiene service provider within 24 months preceding the date of the death. Such form must be received by the Justice Center within 24 hours of the discovery of the death. Reports by facilities subject to the Justice Center of incidents which would be reportable incidents shall be made pursuant to sections 488.7(b)(14) and 488.13 of this Part.

(9) If a resident attempts suicide the operator must:

(i) immediately report the attempted suicide to the appropriate regional office of the department of health by telephone and submit a copy of the Incident Report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the attempted suicide, and

(ii) immediately following discovery of the incident, inform the Justice Center of such incident, orally or electronically, as required by the Justice Center, and submit a written report to the Justice Center, on a form prescribed by the Justice Center, if the resident received services from a mental hygiene service provider within 24 months preceding the date of the incident. Such form must be received by the Justice Center within 24 hours of the discovery of the attempted suicide. Reports by facilities subject to the Justice Center of incidents which would be reportable incidents shall be made pursuant to sections 488.7(b)(14) and 488.13 of this Part.

(10) If it is believed that a felony crime may have been committed by or against a resident, the operator must immediately report the occurrence to the appropriate regional office of the department of health by telephone and submit a copy of the Incident Report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the occurrence. The operator also must notify an appropriate law enforcement authority as soon as possible but at least within twenty-four hours. In addition, the operator must immediately upon discovery of the occurrence, inform the Justice Center of the occurrence, orally or electronically, as required by the Justice Center, and must submit a written report to the Justice Center, on a form prescribed by the Justice Center, if the resident received services from a mental hygiene service provider within the 24 months preceding the date of the occurrence believed to be a felony crime. Such form must be received by the Justice Center within twenty-four hours of the discovery of the occurrence. Reports by facilities subject to the Justice Center of incidents which would be reportable incidents shall be made pursuant to sections 488.7(b)(14) and 488.13 of this Part.

(11) The operator must prepare an Incident Report (DSS-3123) whenever:

(i) a resident's whereabouts have been unknown for more than 24 hours;

(ii) a resident assaults or injures or is assaulted or injured by another resident, staff or others;

(iii) a resident attempts or commits harm to himself/herself;

(iv) there is a complaint or evidence of resident abuse;

(v) a resident dies;

(vi) a resident behaves in a manner that directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility;

(vii) the resident is involved in an accident which requires medical care, attention or services; or

(viii) it is believed that a felony crime may have been committed by or against a resident.

(12) The operator must:

(i) place a copy of the Incident Report (DSS-3123) in the resident's individual record;

(ii) maintain a chronological log or file of all Incident Reports (DSS-3123) which includes identification of the resident or residents involved and the type of incident; and

(iii) submit a copy of Incident Report (DSS-3123) required in paragraph (11) of this subdivision to the appropriate regional office of the department; if the resident is a participant in a service program operated under a cooperative agreement with the operator, to that program, and for all residents who had, at any time received services from a mental hygiene service provider, to the State Commission on Quality of Care for the Mentally Disabled.

(13) The operator must include the resident's version of the events leading to an accident or incident involving such resident, unless the resident objects, on all required Incident Reports (DSS-3123).

(14) If the facility falls within the definition of a facility as defined in section 488(4) of the Social Services Law, the operator shall immediately upon discovery, inform the Justice Center, orally or electronically, as required by the Justice Center, of any occurrence constituting a reportable incident, as defined in section 488(1) of the Social Services Law, including the name, title and contact information of every person known to have the same information as the person reporting concerning the reportable incident. Such written report must be received by the Justice Center within twenty-four (24) hours of the discovery of such occurrence.

(c) Personal care. (1) Each resident must be provided some assistance with personal care to enable the resident to maintain good personal hygiene, to carry out the activities of daily living, to maintain good health, and to participate in the ongoing activities of the enriched housing program.

(2) Personal care functions must include some assistance with:

(i) personal hygiene, including dressing, bathing and grooming; and

(ii) assisting with self-administration of medications, as described in subdivision (d) of this section.

(3) Residents must not be confined to their room or bed, except as may be necessary for the treatment of a short-term illness.

(4) Commodes, must not be permitted, except as may be necessary for a short-term illness or for night use as a safety measure as confirmed by the written order of a physician.

(5) Residents must not be provided tray services except as may be necessary for a short-term illness.

(6) Physical restrains, i.e., any apparatus which prevents the free movement of a resident's arms or legs, or which immobilizes a resident and which the resident is unable to remove, must not be used.

(7) The operator must establish a system which assures that information regarding incidents or changes in residents' conditions affecting their need for personal care or supervision is available to all staff on an on-going basis.

(d) Medication assistance. (1) Each resident must be permitted to retain and self-administer medications provided that:

(i) the resident's physician attests, in writing, that the resident is capable of self-administration;

(ii) the resident keeps the operator informed of all medications being taken, including name, route, dosage, frequency, times and any instructions, including any contraindications, indicated by the prescribing physician; and

(iii) the medications, except for those kept by a resident on his/her person for emergency use, are stored in a locked container or area which cannot be removed or entered at will.

(2) With the written direction of the resident's physician, an operator may assist a resident in administration of medication by the resident including prompting the resident as to time, identifying the medication for the resident, bringing the medication and any necessary supplies or equipment to the resident, opening the container for the resident, positioning the resident for medication and administration, disposing of used supplies and materials and storing the medication properly.

(3) For residents in need of assistance, the operator must establish a system for staff to assist the resident.

(4) Recording for medications.

(i) Information on the medication regimen of each resident must be retained on file in a manner which assures both resident privacy and accessibility for assistance or in time of emergency.

(ii) The following information must be maintained for each resident:

(a) the person's name;

(b) identification of each medication used by the resident;

(c) the current dosage, frequency, time and route of each medication;

(d) the physician's name for each prescribed medication;

(e) the dates of each prescription change;

(f) any contraindications noted by the physician; and

(g) the type of assistance, if any, needed by the resident.

(5) Staff of an enriched housing program is not permitted to administer injectable medications to a resident, except that staff holding a valid license from the Education Department authorizing them to administer injectable medications may do so, providing that the injectable medication is one which licensed health care providers would customarily train a patient or his/her family to administer.

(6) If a resident refuses to take medications or appears unable to independently administer medications, the operator must notify the resident's primary physician.

(7) Under no circumstances will staff make a change in the dosage or schedule of administration of medication without the prior written authorization of a physician except that in cases of an emergency, authorization may be by telephone with written confirmation from the physician within seven days.

(8) Storage of medications by operators.

(i) Medications stored by operators must be kept in a cabinet which cannot be removed or entered at will and which cannot be opened except by a key.

(ii) Medications for external use must be stored separately from internal and injectable medications.

(iii) Refrigerators used for the storage of pharmaceuticals must not be used for the storage of food or beverages, unless the medications are stored in a separate, locked compartment.

(iv) Medications must not be emptied from one container into another.

(v) Directions on labels must not be changed by anyone other than a physician or pharmacist.

(vi) Stock supplies of prescription medications are prohibited.

(vii) Medications must be disposed of in accordance with the physician's or pharmacist's instructions.

(e) Case management. (1) Each resident must be provided such case management services as are necessary to support the resident in maintaining independence of function and personal choice.

(2) Case management services must include:

(i) evaluating initially and periodically, at least once every 12 months, the needs of a resident and the capability of the program to meet those needs;

(ii) orienting a new resident to the daily routine;

(iii) identifying adjustment problems and assisting the resident to resolve such problems if needed;

(iv) assisting each resident to maintain family and community ties and to develop new ones;

(v) encouraging resident participation in enriched housing and community activities;

(vi) identifying needs and arranging for services and entitlements from public and private sources for income, health, mental health and social services;

(vii) assisting the resident in obtaining and maintaining a primary physician or source of medical care of his/her choice who is responsible for the overall management of the individual's health and mental health needs;

(viii) coordinating the work of other case management and service providers within the enriched housing program;

(ix) assisting residents in need of alternative living arrangements to make and execute sound discharge or transfer plans; and

(x) assisting residents as needed in shopping for personal items such as toiletries, medical supplies, stationery, books and clothing.

(3) The operator must establish a system of recordkeeping which documents the case management needs of each resident and records case management activities undertaken to meet those needs.

(4) The operator and case management staff within the enriched housing program must utilize and cooperate with external service providers.

(5) The operator must:

(i) provide, without charge, space for residents to meet in privacy with service providers;

(ii) not inhibit access to individual residents who request services;

(iii) identify residents in need of services and assist external service providers in establishing a relationship with such residents;

(iv) work with service providers in executing a plan for service for individual residents; and

(v) assist in arranging for transportation, as necessary, to ensure that residents are able to attend required services provided in an external location.

(f) Activities. (1) The operator must offer an environment conducive to the continuation and strengthening of family ties and friendships as well as the pursuit of intellectual, social and recreational interests.

(2) The operator must:

(i) inform the residents of available neighborhood programs and events;

(ii) assist in arranging transportation to such programs and events;

(iii) assist the resident in organizing desired activities;

(iv) directly provide periodic leisure activity programs in which residents are free to participate as desired; and

(v) offer to each resident a monthly schedule of activities which must take into account and reflect the age, sex, physical and mental capabilities, interests and the cultural and social background of the residents.

(3) Each activities schedule must be posted, identifying the location, date, time and a program staff contact person knowledgeable about each activity.

(4) The monthly schedule of activities, as planned and as implemented, must be maintained for six months.

(5) Accommodations and space must be provided for activity and socialization services.

(g) Housekeeping. (1) The operator must provide housekeeping services necessary to maintain a clean, well-kept, safe and healthy living environment.

(2) Housekeeping services must include:

(i) maintenance and cleaning of all individual and congregate space;

(ii) purchase and replacement of household items for common use;

(iii) provision of clean towels and linens at least once a week and more often if needed; and

(iv) provision of and assistance with laundry services including:

(a) laundering of the machine-washable personal clothing of residents although the operator may provide facilities and supplies for residents who choose to launder their own clothing;

(b) assisting residents to maintain nonwashable clothing; and

(c) laundering of blankets, bedspreads, and other furnishings as often as necessary.
 

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016
Statutory Authority: 
Social Services Law, Section 460-d

Section 488.8 - Food service.

 

488.8 Food service. (a) The operator must establish a food service program which will provide for meals which are balanced, nutritious and adequate in amount and content to meet residents' daily dietary needs.

(b) Congregate meals. (1) The operator must serve at a minimum, one hot midday or evening meal per day seven days a week in a congregate setting.

(2) Congregate meals must meet one third of the recommended dietary allowances of the Food and Nutrition Board of the National Academy of Science, National Research Council, adjusted for age, sex and activity.

(3) Menus for congregate meals must be:

(i) planned a minimum of three weeks in advance;

(ii) available in the food preparation area;

(iii) established in consultation with residents;

(iv) established in consultation with a dietary consultant; and

(v) recorded on an approved menu planning form which must be dated and amended to record any changes or substitutions served.

(4) Information on each resident's prescribed dietary regimen and food allergies must be available in the food service area and must be used in the planning, preparation and service of resident meals.

(5) Congregate meals must be varied in methods of preparation and content.

(6) Food on hand must be sufficient to permit the service of meals for a minimum of three days.

(7) Food must be stored, prepared and served in such a manner as to ensure its safety and nutritional value.

(8) There must be sufficient supply of dishes, glasses and utensils for the number of residents being served.

(c) Noncongregate meals. (1) The operator must ensure that each resident receives sufficient food for all noncongregate meals plus snacks.

(2) The operator must assist residents to the extent necessary with the shopping, preparation and clean-up of noncongregate meals.

(3) Residents must have free access to kitchen facilities for the purpose of preparing their own noncongregate meals and snacks.

(4) Information on each resident's prescribed dietary regimen and food allergies must be used when planning and providing food for all noncongregate meals and snacks.

(5) The operator must periodically assess resident shopping, food storage and preparation practices to minimize the potential for contamination or spoilage and to assure that each resident maintains a sound dietary regimen.

(6) Food on hand in congregate areas and individual apartments must be sufficient to permit the preparation and serving of meals in the event of an emergency for a minimum of three days.

 

Doc Status: 
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Section 488.9 - Personnel

488.9 Personnel. (a) General requirements. (1) The operator must provide staff sufficient in number and qualified by training and experience to render, at a minimum, those services mandated by statute or regulation. 

(2) The operator must conduct an initial program of orientation and in-service training for employees and volunteers which includes: 

(i) orientation to the characteristics and needs of the population served by the enriched housing program; 

(ii) discussion of the residents' rights and the program's rules and regulations for residents; 

(iii) discussion of the duties and responsibilities of all staff; 

(iv) discussion of the general and specific duties and responsibilities of the individual(s) being trained; 

(v) training in emergency procedures; 

(vi) with respect to facilities subject to the Justice Center, training in the identification of reportable incidents, facility reporting procedures and, if the employee is a mandated reporter under section 488 the Social Services Law or otherwise required to report under section 424-a of the Social Services Law, such person's responsibility to file reports under those provisions; and

(vii) with respect to facilities subject to the Justice Center, provision of a copy of the code of conduct established by the Justice Center pursuant to Section 554 of the Executive Law. Such code of conduct shall be provided at the time of initial employment, and at least annually thereafter during the term of employment. Receipt of the code of conduct must be acknowledged, and the recipient must further acknowledge that he or she has read and understands such code of conduct. Any other individuals, including contractors or other service providers who will or could have resident contact, and falling within the definition of "custodian" under Section 488 of the Social Services Law, must also be provided with, and acknowledge receipt and understanding of, such code of conduct. 

(3) The operator must develop and maintain current written staffing schedules. Staffing schedules must be retained for 12 months. 

(4) The operator must maintain personnel records which include: 

(i) individual employee records containing verification of qualifications for any position for which qualifications are set by regulation, pre-employment and annual medical evaluations, and any incident reports involving the employee; 

(ii) payment records containing all wages, benefits, reimbursements, bonuses, gifts or payments given each employee; 

(iii) with respect to facilities subject to the Justice Center, documentation that the facility has verified, through consultation with the Justice Center, prior to hiring the employee, volunteer, or contractor falling within the definition of "custodian" in section 488 of the Social Services Law, whether the individual is on the Justice Center's register of substantiated category one cases of abuse or neglect as established pursuant to section 495 of the Social Services Law (staff exclusion list) and, where such individual is not on such list, documentation that the facility has verified whether the individual is on the Office of Children and Family Services' Statewide Central Registry of Child Abuse and Maltreatment (State Central Registry); and

(iv) Prior to hiring or otherwise engaging anyone who will or may have direct contact with residents, or approving credentials for any such person, the operator of a facility subject to the Justice Center shall follow the procedures established by the Justice Center in regulations or policy, to verify that such person is not on the Justice Center's staff exclusion list. If such person is not on the Justice Center's staff exclusion list, such operator shall also consult the State Central Registry as required by section 424-a of the Social Services Law. If such person is on the staff exclusion list, a facility subject to the Justice Center shall not hire or otherwise engage such person; if a person is not on the staff exclusion list but is on the State Central Registry, a facility subject to the Justice Center shall consider the inclusion of such person on the State Central Registry as a factor in its decision, but shall not be prohibited from hiring or otherwise engaging such person. 

(5) At the time of employment and at least every 12 months thereafter, or more frequently if needed, an employee must provide the operator with a statement from a physician, or, with physician oversight, a physician's assistant (PA) or a registered professional nurse (RN) with special training in primary health care who has physically examined the individual, that: 

(i) the individual is free from any health impairment which is of potential risk to residents of an enriched housing program or which might interfere with the performance of the individual's duties; and 

(ii) the individual has had: 

(a) a ppd (Mantoux) skin test for tuberculosis within 30 days prior to employment and no less frequently than every two years after employment begins; positive findings require appropriate clinical follow-up but no repeat skin test; and 

(b) any test that may be required by the local board of health. 

(6) Notwithstanding paragraph (5) of this subdivision, physical examinations need not be required for an applicant or an employee who relies upon or is being furnished treatment by spiritual means through prayer in lieu of medical treatment in accordance with the tenets and practices of a recognized church or religious denomination of which the employee is a member or bona fide adherent. In such cases the operator must require documentation of the employee's standing as a member. 

(7) No individual who is suffering from a degree of mental illness or habituation or addiction to alcohol or other drugs such that the individual causes, or is likely to cause danger to himself/herself or others or is unable to perform his/her assigned duties, may be employed or permitted to work as either an employee or volunteer. 

(8) No individual is permitted to work, either as an employee or volunteer, if infected with a communicable disease that might endanger the health of residents. 

(9) Each individual must: 

(i) be emotionally, mentally and physically able, as required by function, to provide services and supervision to the population served by the enriched housing program; and 

(ii) maintain personal hygiene and clothing which is clean and appropriate for the functions performed. 

(10) Employees who have direct contact with residents must be able to speak, read and write English, and speak the predominant language of residents. 

(11) No person under 18 years of age may be charged with direct responsibility for the supervision and personal care of residents; or be permitted to work without onsite supervision. 

(12) The operator must inform the appropriate regional office by telephone, or in writing within three business days of a vacancy in the position of coordinator, case manager or dietary consultant. 

(13) Prior to hiring or otherwise engaging any employee, volunteer or others falling within the definition of custodian under section 488 of the Social Services Law which will or may have direct contact with residents, the operator of a facility subject to the Justice Center shall consult with the Justice Center, to verify that such person is not on the Justice Center's registry of substantiated category one cases of abuse or neglect as established pursuant to section 495 of the Social Services Law (staff exclusion list).

(b) Resident employment. (1) Employment of residents may be permitted only to the extent that such employment: 

(i) is entered into without use of coercion or threats to the resident; 

(ii) is performed in return for fair compensation; and 

(iii) meets all applicable requirements of federal and State Labor Law. 

(2) The operator must maintain written records which document each instance in which a resident elects to perform routine paid or volunteer services, including: 

(i) the name of each resident performing paid or volunteer services; 

(ii) the tasks performed; 

(iii) the rate, type and amount of compensation, if any; and 

(iv) the hours and days worked. 

(c) Administration. (1) The operator must appoint an enriched housing program coordinator who will be directly accountable to the operator for operating the enriched housing program and maintaining the program in compliance with applicable requirements. 

(2) An enriched housing program coordinator must be employed on the basis of one and one-half hours per resident per week for the first 16 residents and one hour per resident per week for each additional resident until the equivalent of a full-time employee is attained. 

(3) The program coordinator must be capable of and responsible for: 

(i) supervision of the enriched housing program; 

(ii) operation of the enriched housing program in compliance with law and regulations; 

(iii) recruitment and general supervision of staff and volunteers; 

(iv) supervision of resident services; 

(v) admission, transfer and discharge of residents; 

(vi) coordination with and development of community activities and services for residents; 

(vii) maintenance of community relations; 

(viii) protection of residents' rights and development of appropriate mechanisms for the residents' protection; 

(ix) maintenance of a system to enable residents to present grievances or recommendations regarding facility operations and programs; and 

(x) investigation of and reporting to the department allegations of occurrences which would constitute a reportable incident. 

(4) The operator may be required to discharge a program coordinator who is unable or unwilling to carry out the responsibilities set forth in paragraph (3) of this subdivision. 

(5) A program coordinator must: 

(i) be at least 21 years of age; and 

(ii) possess the following education and work experience: 

(a) a master's degree in social work from an accredited college or university plus one year of related work experience; or 

(b) a bachelor's degree from an accredited college or university in an approved course of study, plus three years of related experience acceptable to the department of which one must have been in a supervisory capacity. Approved courses of study may include, but need not be limited to, human services for dependent adults, health care management programs, social work programs, gerontological studies and home economics. Related work experience may include, but need not be limited to, work in residential care, rehabilitation, health care management and social work. 

(d) Case management. (1) Each operator must designate sufficient staff to perform case management functions. This function may be carried out by the program coordinator. In the event that the case management function is being carried out by the program coordinator, the operator must designate an employee in addition to the program coordinator to be a designated investigator and reporter of occurrences which would constitute a reportable incident. However, nothing in this paragraph shall relieve any mandated reporter from his or her obligations under law. A qualified case manager must be on staff and on duty for one-half hour per week per program resident. 

(2) A case manager must be capable of, and responsible for, executing, through direct performance and coordination of:

(a) the services and functions described in section 488.7(e) of this Part; and 

(b) investigation of and reporting to the department allegations of occurrences which would constitute a reportable incident. 

(3) A case manager must have the following education and work experience: 

(i) a master's degree in social work from an accredited college or university; or 

(ii) a bachelor's degree from an accredited college or university with 
major work in human services or service delivery and one year of fulltime experience in the provision of services to a frail adult population; or 

(iii) an associate degree from an accredited college or university with major work in human resources or service delivery and three years of full-time experience in the provision of services to a frail adult population. 

(e) Personal care, housekeeping, food service. (1) An operator must provide sufficient staff to perform personal care, housekeeping and food service activities. 

(2) The operator must provide housekeeping, personal care, and food service staff at a rate of six hours per resident per week. The hourly breakdown of service provided will depend on the aggregate service needs of residents. 

(3) Operators desiring to train their own personal care staff must develop and submit to the department for approval an in-service training plan for personal care staff. 

(4) Aides performing personal care tasks must have completed an approved certified personal care training program prior to employment or must: 

(i) within six months of hiring complete a department-approved certified personal care training program; or 

(ii) within three months of hiring complete an approved operator in-service training plan for personal care staff. 

(5) Aides performing food service functions must: 

(i) have demonstrated ability in meal preparation for groups of people; 

(ii) be knowledgeable of nutritional needs of older persons; 

(iii) be able to follow and prepare modified diets; and 

(iv) have knowledge of food protection principles. 

(f) The operator must arrange for the service of a qualified dietitian or dietetic technician as a dietary consultant to provide supervision and consultation sufficient to maintain compliance with food service requirements. A person utilized by an operator to provide food service and nutrition consultation and support is considered qualified if the person is: 

(1) a dietitian who has received a baccalaureate degree with major studies in food and nutrition or institutional management from an accredited college or university, is a member or eligible for membership in the American Dietetic Association, participates annually in continuing dietetic education and has at least two years full-time work experience in dietetics; or 

(2) a dietetic technician who has successfully completed an associate degree program which meets the educational standards established by the American Dietetic Association, and has at least three years full-time work experience in dietetics. 

(g) Volunteers. (1) Resident volunteers. Residents choosing to volunteer may be permitted to do so only to the extent that such voluntary services are: 

(i) entered into without use of coercion or threats to the resident; 

(ii) not inconsistent with the physical or emotional needs or limitations of the resident. 

(2) If an operator uses community volunteers, each volunteer must be: 

(i) supervised by the program coordinator or his/her designee; 

(ii) given orientation to the characteristics and needs of the resident population, the rights of residents, the physical layout of the enriched housing program, emergency procedures and an explanation of their specific responsibilities; and 

(iii) given a copy of the residents' rights. 

(3) The operator must maintain a record for each volunteer, which will include the individual's name, current address and telephone number. 

(4) If a community volunteer organization is providing services within the enriched housing program, the operator may have an agreement with the organization to retain the information required in paragraph (3) of this subdivision. Such agreement must include: 

(i) the name and address of the organization; 

(ii) a designated contact person; and 

(iii) a statement that the volunteer organization is able and willing to provide the specific volunteer information as required in paragraph 

(3) of this subdivision. 

(5) Volunteer services must not be substituted for the program coordinator and case manager as required elsewhere in this Part. 

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016

Section 488.10 - Records and reports

488.10 Records and reports. (a) The operator must collect and maintain such information, records or reports as determined by the department to be necessary. 

(b) The department may examine the books and records of any enriched housing program to determine the accuracy of the annual financial statement or for any other reason deemed appropriate by the department to effectuate the purposes of this Title. The Justice Center shall have access to any enriched housing program in which a resident who received mental health services as described in 488.7(b)(8)(iv), 488.7(b)(9)(ii), and 488.7(b)(10), and information, reports or records in such enriched housing program's possession as needed to carry out the functions, powers and duties of the Justice Center. The department and the Justice Center shall, when required by law, or when so directed by the department or the Justice Center and except as otherwise prohibited by law, be permitted to share information obtained in their respective investigations of incidents.

(c) Resident records. (1) The operator must maintain complete, accurate and current records for each resident which must be available for review and inspection by department staff or designees. 

(2) Records must be maintained in a manner which assures resident privacy and accessibility to staff to use in the provision of routine and emergency services. 

(3) The operator must maintain: 

(i) financial records for each resident which contain at a minimum a copy of the current admission agreement, documentation of the status of the resident's payment account and personal fund account and a current inventory of any personal property held in custody for the resident by the operator; 

(ii) personal records for each resident which contain at a minimum personal data, including identification of the resident's next of kin, family or resident's representative, the name and address of the person or persons to be contacted in the event of an emergency; copies of the resident's medical evaluations and other medical information; summaries of the social evaluations; copies of the initial and annual functional assessments; and details of referral and such other correspondence and papers as are available to document the physical, mental and social status of the resident; and 

(iii) records which are readily available to food services staff and enable staff to plan for and accommodate prescribed dietary regimens, allergies and individual food preferences. 

(4) In situations where residents of an enriched housing program have individual leases for their respective apartments, the operator must review these leases at least annually to ensure that all such leases are adhered to and renewed. 

(d) Program records. (1) The operator must maintain complete, accurate and current records which document operation and maintenance of the enriched housing program in accordance with applicable law and regulation. 

(2) Records must be maintained at the enriched housing program site unless written authorization is given by the department for record retention at another location. All records must be available for review and inspection by department staff and designees. 

(3) Records must be maintained in a manner which assures the individual resident's right to confidentiality and privacy. 

(4) At a minimum, the operator must maintain: 

(i) individual resident records as required in subdivision (c) of this section; 

(ii) resident records required elsewhere in these regulations including incident reports; 

(iii) a chronological admission and discharge register consisting of a listing of residents registered in and discharged from such enriched housing program by name, age, sex, and place from or to which the resident is registered or discharged; 

(iv) program records, including a policies and procedures manual, activities schedules, agreements with external service providers, emergency plans and records of evacuation drills; 

(v) food service records, including menus and food purchase records; 

(vi) records of maintenance or documentation of efforts to ensure maintenance of the physical plant and environmental standards; 

(vii) staff records, including personnel procedures, job descriptions, staffing schedules and payment records; 

(viii) certificates or reports issued by local and other state jurisdictions related to the enriched housing program operations, on file and readily accessible for department review, or posted, if required; and 

(ix) a valid current agreement with a building manager, if the enriched housing operator does not own or control the building in which the enriched housing program is located, which is in accordance with section 485.6(d)(13) of this Title. 

(e) Program reports. (1) Annual financial statement. 

(i) The operator of an enriched housing program must file an annual financial statement on an approved form with the department on or before the 15th day of the sixth calendar month after the close of its fiscal year. Such statement must clearly set forth all financial information pertaining to the operation of such enriched housing program in accordance with generally accepted accounting principles, including but not limited to revenues and expenses by categories during such fiscal year, together with such other information as may be required by the department. 

(ii) The operator of an enriched housing program which submits a charitable organization annual report to the Secretary of State or a residential health care facilities annual report to the Department of Health may submit copies of those reports, together with such other data as may be necessary to satisfy the requirement in subparagraph (i) of this paragraph. 

(iii) An operator must maintain and make available all such books and records as may be required by the department to determine the accuracy of any and all information contained in the financial statement filed by the operator. 

(2) Financial statements must be filed by the operator as requested by the department. 

(3) Apartment records. The operator of an enriched housing program must notify the department, using Form DSS-934, of any change in apartments occupied by program residents in a multiple apartment building at least 15 days before such change is expected. 

(4) Quarterly reports. The operator must submit a quarterly statistical information report to the department which must: 

(i) identify the quarter being reported on; 

(ii) contain a census report; and 

(iii) contain the number of resident deaths which occurred during the quarter being reported on. 

(f) Mandated forms. (1) The department mandates utilization of the following forms for enriched housing programs: 

(i) a Personal Data Sheet (DSS-2949); 

(ii) an Incident Report (DSS-3123); 

(iii) a Medical Evaluation (DSS-3122); 

(iv) an Inventory of Resident Property (DSS-3027); 

(v) a Notice of Change (DSS-934); and 

(vi) a Chronological Admission and Discharge Register (DSS-3026). 

(2) The following personal allowance account forms must be used unless prior written authorization for substitutions has been given by the department: 

(i) a Statement of Offering (DSS-2853); 

(ii) a Personal Allowance Summary (DSS-2855); and 

(iii) a Personal Allowance Ledger (DSS-2854). 

(g) The operator must post the following documents: 

(1) the operating certificate; 

(2) the inspection report for the most recent or summary inspection, with any related follow-up inspections; 

(3) the statement of rights of residents; 

(4) the current week's menus; 

(5) the current month's activity schedule; 

(6) the program's evacuation procedures; and 

(7) the access schedule for personal needs accounts. 

(h) Records retention. (1) Records required by the department, except financial records of the previous operator, must be retained by the enriched housing program upon change of operator. 

(2) Records relating to an individual must be retained for three years after the death or discharge of a resident. 

(3) Program records, business records and records relating to application or renewal for an operating certificate must be retained for seven years. 

(i) Except as otherwise prohibited by law, the operator of a facility, as defined in section 488(4) of the Social Services Law and not otherwise subject to article six of the Public Officers Law shall make records available for public inspection and copying to the extent required by subdivision six of Section 490 of the Social Services Law and regulations of the Justice Center.

Doc Status: 
Complete
Effective Date: 
Wednesday, February 10, 2016

Section 488.11 - Environmental standards.

488.11 Environmental standards. (a) Capacity. (1) The capacity of an enriched housing program located in a building with individual or shared apartments must not exceed the capacity that can be accommodated in 25 percent of the total number of units in the building.

(2) The capacity of an enriched housing program located in a building in which residents share all space other than bedrooms must not exceed seven residents.

(3) If the operator is a public agency, the capacity at any one site must not exceed 16 residents.

(b) Enriched housing programs must:

(1) be integrated within the community and readily accessible to medical and appropriate commercial and community service facilities; and

(2) not be located within existing adult care, health-related, skilled nursing or medical facilities, single room occupancy buildings (SROs), or hotels.

(c) Occupancy groups. (1) A building in which an enriched housing program is located must be in compliance with the requirements of the Uniform Fire Prevention and Building Code for the B-1 occupancy group, including any requirements specified for community residences, or for the B-3 occupancy group.

(2) If in New York City, a building in which an enriched housing program is located must be in compliance with the City Building and Fire Protection Codes for the J-2 occupancy group.

(d) (1) The operator must ensure that the building or buildings in which the enriched housing program is located and which is owned or managed by the operator is in a good state of repair and sanitation and in conformance with applicable State and local laws, regulations and ordinances.

(2) If the operator does not own or manage the building in which the enriched housing program is located, the operator:

(i) must make efforts to ensure that the building is in a good state of repair and sanitation and in conformance with applicable State and local laws, regulations and ordinances;

(ii) must initiate action to correct any deficiencies in the building which affect the building's state of repair and sanitation or which are in violation of applicable State and local laws, regulations and ordinances, and must document such action; and

(iii) may be required to relocate the enriched housing program if the deficiencies or violations remain uncorrected.

(e) Safety procedures. (1) Hasps, bars, padlocks and similar devices must not be used in any resident area in a way which would inhibit access to an exit or the free movement of residents.

(2) Doors in residents' sleeping rooms or apartments may be secured by the resident provided such doors can be unlocked from the outside and keys are available to staff at all times.

(3) Storage of cleaning agents, bleaches, insecticides, or any other poisonous, dangerous or flammable materials must be kept separate from food storage and in a manner that assures resident protection.

(4) Heating pipes and radiators, with which residents may come in contact, must be shielded to prevent burns.

(5) Night lights must be provided and working in all hallways, stairways and bathrooms which are not private.

(6) A hallway or corridor must not be used for storage.

(7) Throw or scatter rugs must not be permitted unless equipped with a nonslip backing or secured to the floor.

(8) Polishes used on floors must provide a nonslip finish.

(9) The water temperature at faucets for bathing, showering, and handwashing must be capable of attaining a temperature of 95 degrees Fahrenheit (35 degrees Celsius) but must not attain a temperature in excess of 110 degrees Fahrenheit (43 degrees Celsius) where controllable by the operator.

(10) Grab bars must be provided for toilets and in tubs and showers.

(11) Bathtubs and showers must have nonslip protections.

(12) The floor area immediately adjacent to a shower or tub must have a nonslip mat.

(13) The following are fire hazards and are prohibited:

(i) smoking in other than designated areas;

(ii) portable electric space heaters;

(iii) accumulation of combustible materials in any part of the building;

(iv) storage of flammable or combustible liquids in anything other than closed containers listed by an acceptable testing laboratory;

(v) storage of pressurized oxygen containers; and

(vi) cooking appliances in residents' bedrooms.

(14) All staff members must be familiar with the fire alarm systems and, where appropriate, with procedures for testing and resetting these systems.

(f) Furnishings and equipment. (1) The operator must assure that furnishings and equipment used by residents support daily activities, are appropriate to function, and do not endanger the residents' health, safety, and well-being.

(2) All resident areas must be decorated, painted and appropriately furnished.

(3) Basic furniture and household items, appropriate to size and function, and intended for common use must be provided or arranged for by the operator.

(4) When not supplied by the resident, the operator must provide each resident with the following minimum household equipment:

(i) a standard, single bed in good repair, a chair, a lamp;

(ii) lockable storage facilities for personal articles and medication which cannot be removed at will if the individual room or apartment is not equipped with a lock;

(iii) individual dresser and closet space for the storage of resident clothing;

(iv) dishes, glasses, utensils, table;

(v) household linens including, at a minimum, a pillow, a pillowcase, two sheets, blankets, a bedspread, towels and washcloths;

(vi) household supplies and equipment including soap and toilet tissue.

(5) All occupants must have access to radios and television sets either in their individual dwellings or in shared areas.

(6) Each dwelling unit must contain at least one telephone.

(7) All windows in resident-occupied areas must be equipped with curtains, shades or blinds.

(8) All operable windows must be equipped with screens.

(9) Light fixtures must be shaded.

(g) Maintenance. (1) The operator of each enriched housing program must make certain of the continued maintenance of buildings and grounds in which programs are located or, in buildings not owned or under the control of the operator, document efforts to obtain adequate building maintenance.

(2) The building and grounds must be maintained in a clean, orderly condition and in good repair.

(3) All equipment and furnishings used by the enriched housing program must be maintained in a clean, orderly condition and in good working order.

(4) Walls and ceiling coverings must be free of cracks or tears, peeling wallpaper or paint, missing or cracked tiles.

(5) Floors and floor coverings must be free of cracks and missing or raised portions.

(6) Electrical systems, including appliances, cords and switches must be maintained in good working order.

(7) Plumbing and plumbing fixtures must be maintained in good working order.

(8) Ventilation, air conditioning, and air changing systems must be maintained in good working order.

(9) Heating systems must be maintained in good working order.

(10) The building, grounds, and other buildings on the premises must be kept free of breeding areas for flies, vermin and rodents.

(11) Entrances, exits, steps and outside walkways must be kept free from ice, snow and other hazards.

(12) Windows and screens must be kept clean and in good repair.

(13) Sprinkler systems must be maintained in good repair and working order.

(14) Smoke and fire protection equipment, including fire extin guishers, must be maintained in accordance with manufacturer's specifications.

(15) To ensure safe, proper operating conditions, the following systems and equipment must be inspected or tested as required by local codes:

(i) smoke detection systems;

(ii) fire alarm system;

(iii) sprinkler system; and

(iv) fire extinguishers.

(16) All inspection certificates required by State or local authorities for buildings, grounds and equipment must be available for review by the department and residents.

(h) Space requirements for enriched housing programs. (1) Every enriched housing program must have common space for congregate meals and activities.

(2) Dining rooms and leisure areas must be available for use by residents at appropriate times to provide periods of social and diversional individual and group activities.

(3) Space provided for dining and leisure must be sufficient to accommodate all residents.

(4) Space must be provided for administrative activities and records.

(5) Suitable equipment for storing, preparing and serving foods in a sanitary manner must be in good operating condition in each individual or shared dwelling unit. This equipment must include a cooking stove or range with oven, a refrigerator with freezer of appropriate size and sufficient capacity for the number of occupants, a kitchen sink with hot and cold running water, which drains into an approved private or public system, and cabinets for storage of chinaware, food, and cleaning supplies. There must be adequate facilities and services for the sanitary disposal of food wastes and refuse, including facilities for temporary storage of garbage. Where required for the purpose of preparing and, or serving common meals, communal dining areas with sufficient space, a pleasant atmosphere, and sanitary conditions must be available within shared dwelling units or otherwise within the building.

(6) Individual and shared dwelling units must contain living, dining and sleeping areas which provide adequate space and comfortable, homelike surroundings. Adequate closet space for storing personal effects must be provided.

(7) Residents must have access to outdoor areas.

(8) Space must be provided for storage of equipment and supplies.

(9) The operator must maintain public areas suitable for posting required notice documents and other written materials which are visible to and accessible to residents, staff and visitors.

(10) Baths and toilet facilities. Each individual dwelling unit or shared dwelling unit must contain full bathroom facilities, including a toilet, lavatory, and a shower or tub. In shared residences, these should be sufficient in number so that each lavatory, toilet, shower or tub is not shared by more than three residents.

(11) Bedrooms. (i) Each resident, except those desiring to share a bedroom, must have a single bedroom.

(ii) Single bedrooms must have a minimum floor area of 85 square feet, exclusive of foyer, wardrobe, closets, lockers and toilet rooms.

(iii) Double bedrooms must have a minimum floor area of 140 square feet, exclusive of foyer, wardrobe, closets, lockers and toilet rooms.

(i) Heating/cooling. (1) The temperature in resident bedrooms and common areas must be, at a minimum, 72 degrees Fahrenheit (20 degrees Celsius) unless the operator can demonstrate that the building is in compliance with local heating requirements which are lower and that the operator does not have control of the building.

(2) When the outside temperature exceeds 85 degrees Fahrenheit (30 degrees Celsius) the operator must:

(i) take measures to maintain a comfortable environment;

(ii) monitor resident exposure and reactions to heat;

(iii) arrange for health care, if needed; and

(iv) arrange for the temporary relocation of residents, if needed.

 

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Section 488.12 - Disaster and emergency procedures.

488.12 Disaster and emergency procedures. (a) The operator must have a written plan, approved by the department, which details the procedures to be followed for the proper protection of residents and staff in the event of an actual or threatened emergency or disaster which interrupts normal service.

(b) Emergency procedures must include:

(1) protection of residents from harm to person and property;

(2) monitoring emergency call systems within the buildings when available;

(3) handling individual emergencies, or need for assistance, including arranging for medical or other services;

(4) conducting and supervising evacuation drills; and

(5) implementing the disaster and emergency plan.

(c) The disaster and emergency plan must include but not be limited to:

(1) procedures and designated staff responsibilities for execution of any part of the plan;

(2) procedures for full and partial evacuation of the enriched housing program including:

(i) designation of staff responsible for the conduct and supervision of evacuations;

(ii) a schedule and procedures for training all staff in evacuation procedures;

(iii) procedures for the conduct of semi-annual fire drills for staff and residents; and

(iv) specific and current procedures for the evacuation of any residents with need for individual procedures;

(3) preliminary plans for relocation of residents, if necessary;

(4) procedures for the coordination of the enriched housing program disaster and emergency plan with such community resources and local disaster and emergency planning organizations as may be available to provide temporary shelter, food and clothing, and other essential services;

(5) plans for the maintenance of service in the event of reductions in personnel;

(6) procedures for obtaining emergency medical services;

(7) procedures for establishing links with community health care providers;

(8) a list of personnel assigned to handle emergencies available to residents on site or by telephone 24 hours a day;

(9) requirement for easy access to a telephone by all residents; and

(10) requirement that at each telephone in a dwelling unit the following information must be posted in large lettering:

(i) the operator's emergency coverage number to call in case of crisis;

(ii) the address of the dwelling unit;

(iii) the telephone number of the dwelling unit;

(iv) the name of each resident in the dwelling unit;

(v) the name and telephone number of the physician or customary primary health care provider of each resident in the dwelling unit; and

(vi) the name and telephone number of the nearest relative of each resident in the dwelling unit.

(d) The operator must conduct training for each new and current employee and volunteer in both the overall disaster and emergency plan and the individual's specific responsibility in its execution, and must review with staff their performance after the conduct of each fire drill.

(e) Evacuation procedure must be conspicuously posted in each resident's apartment and in all congregate areas.

(f) Emergency contact numbers and procedures must be available to staff and residents.

(g) At least once every six months residents and staff must participate in a fire drill.

(h) The operator must arrange, at least annually, to have the local fire authorities, certified service agency or department staff observe one fire drill in which residents participate.

(i) The operator must maintain a record of all fire drills, including the date, and time of the drill, a description of the drill, and the number of residents participating.

(j) Anytime it is necessary to implement any element of the disaster and emergency plan the appropriate regional office of the department must be notified by the next working day.

(k) Notwithstanding subdivision (g) and (h) of this section, the operator is not required to conduct a full fire drill for enriched housing residents in buildings in which the housing management does not permit evacuation drills. In such circumstances, the operator must:

(1) document that fire drills are not permitted within the building and that the fire evacuation procedures are conducted in accordance with local fire department policy;

(2) describe procedures for fire evacuation and training in the disaster and emergency plan approved by the department;

(3) provide and document individual training on fire safety procedures for new residents; and

(4) repeat training for each resident every six months.

(l) Any time there is a work stoppage, a fire within the building that affects the program, the failure of any of the fire prevention or detection systems, a lack of hot water, interruption or shut off of essential services or any circumstance necessitating the implementation of the disaster and emergency plan, the appropriate regional office of the department will be notified by the next business day. (m) The operator of an enriched housing program shall obtain from the Department’s Health Provider Network (HPN), HPN accounts for each program he or she operates and ensure that sufficient, knowledgeable staff will be available to and shall maintain and keep current such accounts. At a minimum, twenty-four hour, seven-day a week contacts for emergency communication and alerts, must be designated by each program in the HPN Communications Directory. A policy defining the enriched housing program’s HPN coverage consistent with the enriched housing program’s hours of operation shall be created and reviewed by the enriched housing program no less than annually. Maintenance of each enriched housing program’s HPN accounts shall consist of, but not be limited to, the following: (1) sufficient designation of the enriched housing program’s HPN coordinator(s) to allow for HPN individual user application; (2) designation by the enriched housing program operator of sufficient staff users of the HPN accounts to ensure rapid response to requests for information by the State and/or local Department of Health; (3) adherence to the requirements of the HPN user contract; and (4) current and complete updates of the Communications Directory reflecting changes that include, but are not limited to, general information and personnel role changes as soon as they occur, and at a minimum, on a monthly basis.

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Section 488.13 - Reporting of Reportable Incidents

488.13 Reporting of Reportable Incidents. 

Facilities subject to the Justice Center, and any individuals associated with such facility, or performing work for it, who fall within the definition of "mandated reporter" under Section 488 of the Social Services Law, shall report any occurrence constituting a reportable incident immediately to the Justice Center upon having "reasonable cause" to suspect that abuse, neglect or mistreatment or misappropriation has occurred. 

(a) Circumstances to be reviewed that may lead to a "reasonable cause" to suspect conclusion might include, but are not limited to:

(i) A statement that a reportable incident has occurred;

(ii) The presence of a physical condition (e.g. a bruise) which is inconsistent with the history or course or treatment of the resident; or

(iii) A visual or aural observation of an act or condition indicating the occurrence of a reportable incident.

(b) Such facilities must report to the Justice Center reportable incidents, including injuries of unknown origin, if and when the "reasonable cause" to suspect threshold has been achieved. This might occur before the facility investigation into the incident has begun or at any time during the investigation. 

(c) If the "reasonable cause" to suspect threshold has not been achieved, notification to the Justice Center is not required.

(d) When an alleged occurrence of a reportable incident occurs, the facility is required to initiate an investigation. The Justice Center, and/or the department, may also investigate the incident.

(e) Such reporting obligations are in addition to those otherwise provided for under this Part.

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Section 488.14 - Investigations involving facilities subject to the Justice Center

488.14 Investigations involving facilities subject to the Justice Center

Investigations involving facilities subject to the Justice Center shall proceed consistent with the following requirements:

(a) Facilities must investigate all alleged violations of reportable incidents, including injuries of unknown origin. Facility policy and procedures must address the process of investigating an incident at the facility level. Such process must include, at minimum, the following elements:

(i) immediately upon notice of the occurrence of a reportable incident, including injuries of unknown origin, the facility must obtain a medical examination, as indicated by the circumstances, of any physically injured individual, record the name of the examiner and retain his/her written findings.

(ii) the facility must promptly identify and interview witnesses to the incident. Such interviews should be conducted by qualified, objective individuals in a private area which does not allow those not participating in the interview to overhear. Interviews must be conducted of each party or witness individually, not in the presence of, or under circumstances in which other parties or witnesses may perceive any aspect of the interview. The person alleging the incident, or who is the subject of the incident, must be offered the opportunity to give his/her version of the event. At least one of the persons conducting the interview must have an understanding of, and be able to accommodate, the unique needs or capabilities of the person being interviewed.

(iii) the facility must review pertinent information (e.g., medical and other records, observe the scene of the incident, expert assessments, outside service provider information)

(iv) the facility must identify physical evidence, if any, and take appropriate measures to safeguard and preserve such evidence;

(v) the facility must establish scope and severity, including duration, staff involvement, number of residents involved and resident outcomes;

(vi) the facility must document each of the investigative steps taken;

(vii) Upon completion of the investigation, a written report shall be prepared which shall include all relevant findings and information obtained in the investigation with reference to the supporting information obtained in the investigation, and details of steps taken to investigate the incident. The facility director must make a written endorsement of such findings. Such findings must also identify and document the remedial steps to be taken, and designate the person responsible for assessing the efficacy of the remedial action taken. The results of the investigation shall be promptly reported to the department and to the Justice Center.

(b) Any information, including but not limited to documents and other materials, obtained during or resulting from any investigation shall be kept confidential, except as otherwise permissible by law or regulation.

(c) The procedures required by subparagraphs (a)(2) and (b) of this section may be altered if, and only the extent necessary to, comply with an applicable collective bargaining agreement.

(d) Investigations of reportable incidents must be completed, and the results of such investigation reported to the department, within five (5) calendar days of the discovery of the incident. Additional time for completion of the investigation may be allowed, subject to the approval of the department, upon a showing of good cause for such extension. For purposes of this section, “complete” shall mean that all necessary information has been obtained to determine whether and how the incident occurred, to determine the remedial action necessary to address the occurrence, and to complete the findings referenced in paragraph (a)(vii) of this section.

(e) except to the extent otherwise prohibited by law, the facility shall provide information, whether obtained pursuant to the investigation or otherwise, to the Justice Center upon request, in the form and manner requested. Such information must be provided in a timely manner so as to support completion of the investigation subject to the time limits set forth in paragraph (c) of this section. Failure to provide such information in response to a reasonable request by the Justice Center shall be considered a violation of the facility's responsibilities under these regulations. The department and the Justice Center shall, except as otherwise prohibited by law, be permitted to share information obtained in their respective investigations of incidents subject to the reporting requirements of this section.

(f) If any remedial action is necessary, the operator, in collaboration with the department, shall establish a plan in writing. The plan shall indicate the operator's agreement to the remediation and identify a follow-up date and person responsible for monitoring the remedial action. The plan shall be provided, and any measures taken in response to such plan shall be reported, to the Justice Center.

(g) incident review committees are established; provided, however, that the Department may consider and approve requests for exemptions on a case-by-case basis, based on the size of the facility or provider agency or other relevant factors. A request for an exemption must include a written justification. The facilities incident review committee shall consist of persons identified by the director of the facility, including some members of the following: at least two (2) direct support staff, two (2) licensed health care practitioners, two residents and two family members, but not the director of the facility or provider agency. Such committee shall meet to:

(i) review the timeliness, thoroughness and appropriateness of the facility or provider agency’s responses to reportable incidents;

(ii) recommend additional opportunities for improvement to the director of the facility or provider agency, if appropriate;

(iii) review incident trends and patterns concerning reportable incidents; and

(iv) make recommendations for the director of the facility or provider agency to assist in reducing reportable incidents. Such meetings shall occur within one month following the issuance of findings associated with the investigation of an incident, and in the absence of such incident, no less than quarterly. Members of the committee shall be trained in confidentiality laws and regulations, and shall comply with section seventy-four of the public officers law.

(h) the department and the Justice Center may undertake investigations even if the facility is also investigating a matter. Investigations undertaken by the department shall conform to the elements specified in paragraph (a) of this section. Department investigations shall also comply with paragraphs (b), (c), and (d) of this section, except that the deadline for providing the final report of the investigation to the Justice Center shall be fifty days from the date the Justice Center accepted a report of abuse or neglect, and sixty days from the date the Justice Center accepted a report of a significant incident.

(i) The department or the Justice Center may direct a facility to cease its investigation, or to modify its investigation, even if such direction results in practice which varies from the requirements of subparagraphs (a) through (f) of this section. The facility shall maintain documentation of directives within the facility's records. Such documentation shall include the name of the department or Justice Center representative who issued the directive and the date when the facility was directed to cease its investigation.
 

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Part 489 - ADULT CARE FACILITIES STANDARDS FOR FAMILY-TYPE HOMES - OCFS

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies of Part 489 please contact: www.dos.ny.gov
PART 489

ADULT CARE FACILITIES STANDARDS FOR FAMILY-TYPE HOMES

(Statutory authority: Social Services Law, Sections 2(21), (22),
(28), 20(3)(d), 34(3)(f), 131-o, 460, 460-a--460-g, 461, 461-a--461-h, 461-j)
Sec.
489.1 Applicability
489.2 Definitions
489.3 General provisions
489.4 Application and certification
489.5 Inspection and enforcement
489.6 Responsibilities of local departments of social services
489.7 Admission standards and procedures
489.8 Discharge and transfer
489.9 Resident protections
489.10 Resident services
489.11 Food service
489.12 Environmental standards
489.13 Personnel
489.14 Records and reports
489.15 Special needs funds
489.16 Capacity

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Part 490 - STANDARDS FOR RESIDENCES FOR ADULTS

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Statutory Authority: 
Social Services Law, Sections 20[3][d], 34[3][f], 131-o, 460, 460-a--460-g, 461-a--461-h

Section 490.0 - Scope

Section 490.0 Scope. This Part sets forth the procedures and requirements for operating a residence for adults. A residence for adults is a type of adult care facility as defined by section 2 of the Social Services Law. The department's authority to regulate residences for adults is set forth in section 460 of the Social Services Law.

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Section 490.1 - Applicability

Section 490.1 Applicability. (a) This Part applies to residences for adults as defined herein.

(b) Parts 485 and 486 of this Title apply to residences for adults except as specifically limited in this Part.

(c) This part does not apply to any housing projects established pursuant to the Private Housing Finance Law, the Public Housing Law, the former Membership Corporations Law or the Not-for-Profit Corporation Law, except for those distinct programs operated by such projects which provide an organized program of supervision and services which are approved and certified by the department.

(d) Any person, partnership, corporation, organization, agency, government unit, or other entity which operates a residence for adults is subject to the jurisdiction of the department and must comply with these regulations or cease operation.

 

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Section 490.2 - Definition

Section 490.2 Definition. A residence for adults is an adult care facility established and operated for the purpose of providing long-term residential care, room, board, housekeeping, case management, activities and supervision to five or more adults, unrelated to the operator, who are unable or substantially unable to live independently.

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Section 490.3 - General provisions

Section 490.3 General provisions.

(a) The operator of a residence for adults must provide, through his/her employees and agents, an organized, 24 hour-a-day program of supervision, care, and services which:

(1) meets the standards set forth in this Part;

(2) assures the protection of resident rights; and

(3) promotes the social, physical and mental well-being of the residents.

(b) The operator must operate and maintain the facility in compliance with the regulations of the department and with applicable statutes and regulations of other State agencies and local jurisdictions.

(c) Nothing contained within this Part, or Parts 485 and 486 of this Title, prohibits an operator from exceeding the requirements of these regulations, consistent with the definition of a residence for adults.

(d) An operator must afford any officer or duly authorized employee or agent of the department access at any time to the residents, grounds, buildings and any records relating to resident care and services.

(e) The operator of a residence for adults issued an operating certificate by the department must maintain, make available for inspection and submit such statistical, financial or other information, records or reports, relating to the facility as the department may require.

(f)(1) The capacity of a residence for adults is limited to 200 beds.

(2) This limitation does not apply to an adult care facility certified for a larger capacity before the effective date of these regulations, except that no additional increases in capacity will be authorized for such a facility.

(g)(1) Upon request by the operator, the department may waive nonstatutory requirements of this Part and may permit an operator to establish another method of achieving the intended outcome of the waived regulation. An operator must request and receive written approval from the department prior to instituting any alternatives to this Part. Applications for waivers must be submitted in writing to the appropriate regional office of the department. An application must include:

(i) the specific regulation(s) for which a waiver is sought;

(ii) the reason(s) the waiver is necessary;

(iii) a description of what will be done to achieve or maintain the intended outcome of the regulation(s) and to protect the health, safety and well-being of the residents.

(2) The department may require that the operator make physical plant modifications or adopt special methods or procedures to protect resident health and safety and will grant written approval of an application for a waiver only upon determining that the proposed waivers will not adversely affect the health, safety and well-being of residents.

(3) The department must make a determination on a request for a waiver within 90 days of receipt of all required information from the operator.

(4) Failure to adhere to the terms of the approved waiver will result in recision of the approval and imposition of penalties consistent with section 486.7(f) of this Title.

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Section 490.4 - Admission and retention standards

Section 490.4 Admission and retention standards.

(a) An operator may admit, retain and care for only those individuals who do not require services beyond those the operator is permitted by law and regulation to provide.

(b) An operator shall not exclude an individual on the sole basis that such individual is a person who primarily uses a wheelchair for mobility, and shall make reasonable accommodations to the extent necessary to admit such individuals, consistent with the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. and with the provisions of this section.

(c) An operator must not accept or retain any person who:

(1) is in need of continual medical or nursing care or supervision as provided by facilities licensed pursuant to article 28 of the Public Health Law or licensed or operated pursuant to articles 19, 23, 29 and 31 of the Mental Hygiene Law;

(2) suffers from a serious and persistent mental disability sufficient to warrant placement in a residential treatment facility licensed or operated pursuant to articles 19, 23, 29 or 31 of the Mental Hygiene Law;

(3) requires health or mental health services which are not available or cannot be provided safely and effectively by local social services agencies or providers;

(4) causes, or is likely to cause, danger to himself/herself or others;

(5) repeatedly behaves in a manner which directly impairs the well-being, care, or safety of the resident or other residents or which substantially interferes with the orderly operation of the facility;

(6) has a medical condition which requires continual skilled observation of symptoms or reactions to medications or accurate recording of such skilled observations for the purpose of reporting to the resident's physician;

(7) refuses or is unable to comply with a prescribed treatment program, including but not limited to a prescribed medications regimen, when such refusal or inability causes, or, in the judgment of a physician, is likely to cause life-threatening danger to the resident or others;

(8) requires more than supervision and assistance with self-administration of medications in order to maintain a prescribed medication regimen;

(9) chronically requires physical assistance with the personal activities of daily living, including grooming, bathing, dressing, toileting, or eating;

(10) is chronically bedfast;

(11) chronically requires the physical assistance of another person in order to walk;

(12) chronically requires the physical assistance of another person to climb or descend stairs, unless assignment on a floor with ground-level egress can be made;

(13) has chronic unmanaged urinary or bowel incontinence;

(14) suffers from a communicable disease or health condition which constitutes a danger to other residents and staff;

(15) is dependent on medical equipment unless it has been demonstrated that:

(i) the equipment presents no safety hazard;

(ii) use of the equipment does not restrict the individual to his/her room, impede the individual in the event of evacuation, or inhibit participation in the routine activities of the facility;

(iii) use of the equipment does not restrict or impede the activities of other residents;

(iv) the individual is able to use and maintain the equipment with only intermittent or occasional assistance from medical personnel, and such assistance is available from local social service agencies or approved community resources; and

(v) each required medical evaluation attests to the individual's ability to use and maintain the equipment;

(16) engages in alcohol or drug use which results in aggressive or destructive behavior;

(17) is under 18 years of age; or under 16 years of age if such person is to be admitted to a residence for adults operated by a social services district.

(d) In accordance with a plan submitted by the operator and approved by the department, persons who require physical assistance with the personal care activities of daily living may remain in a residence for adults if the facility was previously certified as an adult home, and for so long as they remain appropriate for adult home care and the operator can demonstrate continued provision of needed services.

(e) An operator may not admit or retain a number of persons in excess of the capacity specified on the operating certificate.

(f) An operator may not admit an individual before a determination has been made that the facility program can support the physical, supervisory, and psychosocial needs of the individual. Such a determination must be based upon:

(1) receipt and consideration of a medical evaluation;

(2) receipt and consideration of a mental health evaluation;

(3) performance of a screening and an assessment; and

(4) conduct of a personal resident interview between the administrator or a designee responsible for admission and retention decisions and the resident and the resident's representative, if any.

(g) Each medical evaluation (DSS-3122 or an approved substitute) must be a written and signed report from a physician which includes:

(1) the date of examination, significant medical history and current conditions, known allergies, the prescribed medication regimen, including information on the applicant's ability to self-administer medications, recommendations for diet, exercise, recreation, frequency of medical examinations and assistance needed in the activities of daily living;

(2) a statement that the resident is not medically or mentally unsuited for care in the facility;

(3) a statement that the resident does not require placement in a hospital, residential health care facility, or an adult home; and

(4) a statement that the physician has physically examined the resident within 30 days prior to the date of admission or, for a required annual evaluation, within 30 days prior to the date of the report.

(h) Each mental health evaluation must consist of a written report which includes:

(1) significant mental health history and current conditions;

(2) the current mental health services provided, if any;

(3) a statement that the resident is not mentally unsuited for care in the facility;

(4) a statement that the resident does not evidence need for placement in a residential treatment facility licensed or operated pursuant to Article 19, 23, 29 or 31 of the Mental Hygiene Law;

(5) documentation that the person responsible for providing the information is a psychiatrist, physician, registered nurse, certified psychologist or certified social worker and has conducted a face-to-face evaluation of the resident within 30 days prior to the date of admission to the facility or, for required annual evaluations, within 30 days prior to the date of the report; and

(6) (Reserved)

(7) the name, signature, professional title, and certification number of the person who conducted the mental health evaluation.

(i) Each resident screening and assessment must:

(1) evaluate the supervisory, case management and other services which are available in the facility and the community and how those services will be utilized to meet the:

(i) supervision needs of the resident;

(ii) physical needs of the resident, including dietary needs occasioned by cultural or religious practice or preference or medical prescription; and

(iii) socialization needs of the resident through facility programs which foster and maintain family, facility, and community ties and associations.

(2) be summarized in writing, including the date of the screening and assessment, and a statement addressing whether the resident was determined to be appropriate for admission and retention.

(j) Each resident interview must:

(1) be conducted within 30 days prior to admission to the facility;

(2) include an explanation of the admission agreement, resident rights and responsibilities, facility rules and regulations and the personal allowance protections available to Supplemental Security Income (SSI) or Home Relief (HR) recipients; and

(3) be summarized in writing, including the date of the resident interview and identification of those present.

(k) Resident screenings and assessments, resident interviews, medical evaluations and mental health evaluations, if required, must be conducted:

(1) within 30 days prior to the date of admission to the facility; and

(2) whenever a change in a resident's condition warrants but no less than once every 12 months.

(l) The operator must assist a resident to obtain any required evaluations.

(m) For any resident who cannot be retained under the conditions set forth in subdivision (c) of this section:

(1) the operator must make persistent efforts to secure appropriate alternative placements and must document such efforts;

(2) persistent efforts are defined as:

(i) assisting the resident or resident's representative with filing five applications for each such resident with appropriate facilities;

(ii) following up by telephone every two weeks on the status of the applications;

(iii) if an application is rejected the operator shall assist the resident or resident's representative in filing an application to another facility within five working days of the date of rejection; and

(iv) if the resident is not placed, the operator must notify the regional office in writing, every 90 days from the filing of the first application, of the name of the resident and any pending and rejected applications.

(n) Notwithstanding subdivisions (f), (g) and (k) of this section, medical evaluations are not required of a competent adult who relies upon or is being furnished treatment by spiritual means through prayer, in lieu of medical treatment, in accordance with the tenets and practices of a recognized church or religious denomination of which the resident is a member or bona fide adherent. In such cases the operator must:

(1) obtain documentation of the resident's standing as a member; and,

(2) adhere to the admission and retention standards set forth in subdivision (c) of this section.

(o) An individual service plan must be completed for each resident within 30 days of admission to the facility, and must be reviewed and revised as necessary thereafter, but no less frequently than every twelve months. Each individual service plan must:

(1) be a written report prepared, signed, and dated by the facility's administrator or case manager;

(2) evaluate the resident's ability to function in the facility and need for supervision and services to:

(i) perform the personal activities of daily living, including personal hygiene, bathing, dressing, grooming, and toileting;

(ii) perform activities of daily living, including self-administration of medication, care of personal effects and clothing, light housekeeping, meal preparation, shopping, and use of available transportation;

(iii) manage personal, financial and legal affairs;

(iv) engage in social and interpersonal activities;

(v) use community services and resources; and

(vi) find and keep employment or participate in training or education.

(3) specify resident goals;

(4) specify the supervisory, case management and other services which are available in the facility and the community, how these services will be utilized to assist the resident in attaining the resident's goals, and how the facility will:

(i) meet the supervision needs of the resident;

(ii) meet the physical needs of the resident, including dietary needs occasioned by cultural or religious practice or preference or medical prescription; and

(iii) meet the socialization needs of the resident through facility programs which foster and maintain family, facility, and community ties and associations.

(p) The operator may not admit or accept for return an individual directly from a general or special hospital, psychiatric center, developmental center, skilled nursing or health related facility without a statement from the referral source which details significant medical conditions, prescribed health or mental health regimens and such psychosocial information as may be available to help the operator plan an adequate level of care for the resident. This statement may substitute for the medical or mental health evaluation required by this Part if the requirements of subdivisions (g) or (h) of this section are met.

(q) In a facility with a significant number of mentally disabled persons, the mental health organization or agency with which the operator has executed the agreement required by section 490.7 (b) of this Part must be afforded reasonable opportunity to participate in the admission or retention assessment of persons who require a mental health evaluation or who would be eligible for the mental health organization's services by reason of residency in the residence for adults. Such participation must be solely for the purpose of assisting the operator to determine if the operator and available mental health services can meet the needs of the resident.

(r) An applicant must receive at or prior to the admission interview:

(1) a copy of the admission agreement;

(2) a copy of the statement of resident rights;

(3) a copy of any facility regulations relating to resident activities, office and visiting hours and like information; and

(4) a listing of legal services or advocacy agencies made available by the department, and as described in section 490.5(f)(7) of this Part.

(s) Each applicant for admission must have the opportunity to review a copy of the most recent inspection report issued by the department to the facility.

(t) If the applicant or resident is sight-impaired or hearing-impaired or otherwise unable to comprehend English or printed matter, the operator must arrange for conducting the interview and transmitting the contents of the admission agreement, the statement of rights and responsibilities and facility information in a manner comprehensible to the applicant.

Doc Status: 
Complete
Effective Date: 
Wednesday, November 21, 2018
Statutory Authority: 
Social Services Law, Sections 461 and 461-l(5)

Section 490.5 - Resident protections.

Section 490.5 Resident protections.

(a) Resident rights.

(1) Each operator must adopt a statement of rights and responsibilities of residents and treat each resident in accordance with the principles contained in the statement.

(2) A copy of the statement of rights issued by the department must be provided to each resident.

(3) The operator of a residence for adults must afford each resident the right:

(i) to receive courteous, fair and respectful care and treatment and not be physically, mentally or emotionally abused or neglected in any manner;

(ii) to exercise his/her civil rights and religious liberties, and to make personal decisions, including the choice of physician and to have the assistance and encouragement of the facility in exercising these rights and liberties;

(iii) to have private written and verbal communications or visits with anyone of his/her choice, or to deny or end such communications or visits;

(iv) to send and receive mail or any correspondence unopened and without interception or interference;

(v) to present grievances or recommendations on his/her own behalf or the behalf of other residents to the administrator or facility staff, the Department of Social Services, other government officials, or any other parties without fear of reprisal or punishment;

(vi) to join other residents or individuals inside or outside the facility to work for improvement in resident care;

(vii) to confidential treatment of personal, social, financial and health records;

(viii) to have privacy in treatment and in caring for personal needs;

(ix) to receive a written statement (admission agreement) of the services regularly provided by the facility operator, those additional services which will be provided if the resident needs or asks for them and the charges (if any) of these additional services;

(x) to manage his/her own financial affairs;

(xi) to not be coerced or required to perform work; and if the resident works, to receive fair compensation from the operator of the facility;

(xii) to have security for any personal possessions if stored by the facility;

(xiii) to have recorded on the facility's accident or incident report the resident's version of the events leading up to the accident or incident;

(xiv) to object if the operator terminates the admission agreement against the resident's will;

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

(2) The operator must:

(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 will 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 be addressed, and that a written report addressing the problems, issues or suggestions be sent to the organization.

(c) Grievances and recommendations. (1) The operator must develop written procedures and must establish and maintain a system to receive and respond to grievances and recommendations for change or improvement in facility operations and programs which are presented by residents.

(2) The system must include:

(i) identification of staff to whom grievances and recommendations may be made;

(ii) procedures to submit grievances and recommendations which also include a procedure for confidential treatment of grievances and recommendations if requested;

(iii) procedures for evaluation and the initiation of action or resolution which are timely and protect the rights of those involved; and

(iv) procedures for informing residents of action and resolution.

(3) The operator must post the procedures for the submission of grievances and recommendations, including the identity of staff to whom the grievances and recommendations may be addressed.

(d) Admission agreements.

(1)(i) Each operator must execute with and provide to each resident, at or prior to admission and periodically thereafter as changes necessitate, a written admission agreement, which must constitute the entire agreement of the parties and must contain at least the provisions required by paragraph (6) of this subdivision.

(ii) The admission agreement must be dated and signed by the operator, the resident and, if appropriate, another person acting as an agent for the resident.

(2) The operator must comply with all provisions of the admission agreement.

(3) Any modification or provision of the agreement which is not in compliance with law or regulation is null and void.

(4) Any waiver by the resident of any provision of the admission agreement required by law or regulation is null and void.

(5) The admission agreement must be printed in legible, easily-read type.

(6) The admission agreement must, at a minimum:

(i) state the effective date of the agreement;

(ii) state the due dates for payment;

(iii) enumerate the services, material, equipment and food required by law or regulation;

(iv) state the basic monthly, weekly or daily payment for services, material, equipment and food required by law or regulation;

(v) enumerate in detail a schedule of any other service, material, equipment, and food which the operator agrees to furnish and supply to the residents during the period of the admission agreement. Such schedule must include the basis for charges for such supplemental services and supplies;

(vi) guarantee that charges for such supplemental services and supplies will be made only at the resident's option and only for services and supplies actually provided to the resident;

(vii) detail the conditions and procedures under which the operator may adjust the basic monthly, weekly or daily rate or charges for supplemental services and supplies. Such conditions are limited to:

(a) the express written approval and authority of the resident or legal representative; or

(b) in the event of an emergency which affects a resident, such additional charges, for the benefit of the resident, as are reasonable and necessary for services, material, equipment and food furnished and supplied during such emergency; or

(c) the provision of additional care, services or supplies, upon the express order of the primary physician of the resident; or

(d) the provision of 30 days written notice to the resident and his/her representative, if any, of additional charges and expenses due to increased cost of maintenance and operation;

(viii) state the actual rate charged the resident and accepted by the operator in satisfaction of the admission agreement;

(ix) guarantee that neither the operator, administrator nor any employee or agent of the facility will accept any remuneration, or gratuity in any form for any service provided or arranged for as specified by statute, regulation or admission agreement;

(x) enumerate any and all money, property or things of value given or promised to be given to the operator on admission or at any other time including any agreements made by third parties for payments for the benefit of a resident;
(xi) state that the operator offers to each resident who is a recipient of Supplemental Security Income (SSI) or Home Relief (HR) or representative payee, an opportunity to place personal funds for incidental use in a facility-maintained resident account, and a statement to indicate resident and representative payee acceptance or rejection of this offer;

(xii) state that a signator other than the resident, who does not choose to place the resident's personal allowance funds in a facilitymaintained account, will comply with the Supplemental Security Income or Home Relief personal allowance requirement;

(xiii) state the charge(s), which may not exceed the basic rate, to be levied for reserving a residential space in the event of temporary absence of the resident, and the length of time the reservation will apply;

(xiv) state the terms and conditions under which the resident or operator may terminate the occupancy, and further;

(xv) state the grounds under which the operator may terminate the admission agreement without the consent of the resident;

(xvi) detail the operator's obligation to:

(a) provide at least 30 days written notice to the resident, the resident's next of kin, and the person designated in the admission agreement as the responsible party, specifying the grounds for termination and date of discharge and advising that the resident has the right to object to, and contest, involuntary termination;

(b) provide a list of free local legal services and advocacy resources, including the local social services district; and

(c) obtain prior court approval if the resident objects to the involuntary termination;

(xvii) provide for a prorated refund of advance payments based on the rate, the actual days of residency, room reservation and the terms for notice;

(xviii) guarantee that upon termination of the admission agreement the resident or the resident's representative will receive a final written statement of his or her payment account and personal allowance account and immediately receive any monies, property or things of value held in trust or in custody by the operator or which come into possession of the operator after discharge or transfer;

(xix) state that the resident agrees to provide the operator, prior to admission and at least every 12 months thereafter, a dated and signed medical evaluation, and if required, a mental health evaluation, which conforms to the requirements of section 490.4(f) or (g) of this Part;

(xx) state that the resident agrees to obey all reasonable rules of the facility and to respect the rights and property of other residents; and

(xxi) state that waiver by a resident of any provision of the admission agreement is null and void.

(e) An operator may not enter into any contract or agreement with the resident or the resident's next-of-kin or sponsor for life care of the resident in the facility.

(f) Termination of admission agreements.

(1) Every resident has the right to terminate his/her admission agreement.

(2) Voluntary and mutual termination of the admission agreement. When notice of termination has been given by the operator and the resident leaves voluntarily, it is not necessary for the operator to commence a court proceeding pursuant to paragraph (16) of this subdivision.

(3) No operator may terminate an admission agreement and involuntarily discharge a resident except for the following reasons:

(i) the resident requires continual medical or nursing care which the residence for adults cannot provide.

(ii) the resident's behavior poses an imminent risk of death or imminent risk of serious physical harm to the resident or anyone else;

(iii) the resident fails to make timely payment of all authorized charges, expenses, and other assessments, if any, for services including use and occupancy of the premises, materials, equipment and food which the resident has agreed to pay pursuant to the resident's admission agreement;

(iv) the resident repeatedly behaves in a manner that directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility;

(v) the facility has had its operating certificate limited, revoked or temporarily suspended or the operator has voluntarily surrendered the operating certificate of the facility to the department; or

(vi) a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law and is providing for the orderly transfer of all residents in the facility to other facilities or is making other provision for the residents' continued safety and care.

(4) If failure to make timely payment resulted from an interruption in the receipt by the resident of any public benefits to which he/she is entitled, no admission agreement may be involuntarily terminated unless the operator, during the 30 day notice period, assists the resident in obtaining such benefits, or any other available supplemental public benefits. Documented failure of the resident to cooperate with such efforts by the operator will be considered evidence of assistance on the part of the operator.

(5) In order to terminate the admission agreement of a resident and discharge him/her from the facility, the operator must give at least 30 days written notice, on a form prescribed by the department, to:

(i) the resident;

(ii) the resident's next of kin, if known; and

(iii) any person designated in the admission agreement as the responsible party, if any.

(6) The termination notice must indicate:

(i) the reason for termination;

(ii) the date of termination;

(iii) that the resident has the right to object to the termination of the agreement and the subsequent discharge; and

(iv) that, if the resident does object, he/she may remain in the facility while the operator commences a court proceeding, and until such time that the court finds in favor of the operator.

(7) In addition to the prescribed termination notice, the operator must furnish to the resident a list of agencies, including the Long-Term Care Ombudsman Program, which provide free legal services, and agencies engaged in resident advocacy services within the geographic vicinity of the facility. Such lists must be provided or approved by the department and must include names, addresses and telephone numbers of such agencies.

(8) A copy of the termination notice must be filed by the operator with the appropriate regional office within five days after the notice is served upon the resident.

(9) Transfer of a resident may be arranged without at least 30 days notice under the following circumstances:

(i) when a resident develops a communicable disease, medical or mental condition, or sustains an injury such that continual skilled medical and nursing services are required, arrangements must be made by the operator for appropriate professional evaluation and transfer to an appropriate facility;

(ii) in the event that a resident's behavior poses an imminent risk of death or of serious physical harm to himself/ herself or others, the operator must arrange for transfer of the individual to an appropriate and safe location.

(10) In the event that a resident's behavior poses an imminent risk of death or serious physical harm to himself/herself or others, the operator should, whenever possible, seek the assistance of a peace officer, acting pursuant to the officer's special duties, or a police officer, who is a member of an authorized police department or force or a sheriff's department, in transferring the resident to a safe location.

(11) When the basis for a transfer no longer exists, and the resident is deemed appropriate for placement in the facility, the operator must readmit the resident, as long as the involuntary termination proceedings have not been completed.

(12) Transfer of a resident without notice of termination may not be deemed a termination of the admission agreement. Such removal does not relieve the operator from the requirement of proceeding, subsequent to the removal of the resident, to terminate the admission agreement.

(13) When the operator proceeds to terminate the admission agreement of a resident transferred without notice of termination, the operator must arrange for the written notice to be hand-delivered to the resident at the location to which he/she has been removed. If such hand delivery is not possible, then notice must be given by any of the methods provided by law for personal service upon a natural person (pursuant to section 308, Civil Practice Law and Rules).

(14) When a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law and is providing for the orderly transfer of all residents in the facility to other facilities or is making other provisions for the residents' continued safety and care, the receiver may terminate admission agreements and arrange for the transfer of all residents to appropriate settings without regard to the notice and court review requirements of this subdivision.

(15) Except as described in paragraph (14) of this subdivision, a receiver must adhere to the requirements of this subdivision in any instance when termination of an admission agreement is not directly related to the closure of a facility.

(16) If the resident indicates to the operator within 30 days of receipt of notice that he/she objects to the termination of the agreement or if at the end of the 30 days the resident remains in the facility, the operator must institute a special proceeding pursuant to section 461-h of the Social Services Law prior to termination and discharge.

(17) While legal action is in progress, the operator may not:

(i) seek to amend the admission agreement in effect as of the date of the notice of termination;

(ii) fail to provide any of the care and services required by department regulations and the admission agreement; or

(iii) engage in any action to intimidate or harass the resident.

(18) Both the resident and the operator are free to seek any other judicial relief to which they may be entitled.

(19) The operator must assist any resident proposed to be transferred or discharged pursuant to this subdivision, to the extent necessary, to assure, whenever practicable, the resident's placement in a care setting which is adequate, appropriate and consistent with his/her wishes.

 

Doc Status: 
Complete

Section 490.6 - Resident funds and valuables

Section 490.6 Resident funds and valuables.

(a) Funds.

(1) The operator must issue a receipt to a resident for any funds received for:

(i) payment of the facility rate;

(ii) payment of appropriate supplemental charges;

(iii) payment of funds owed to the operator by the resident;

(iv) deposits to a personal allowance account established pursuant to section 485.12 of this Title;

(v) any other funds held in custody for the resident; and

(vi) any other funds received by the operator from the resident.

(2) An operator who receives any funds from a resident must issue a signed receipt to the resident which contains the following information:

(i) the date of the receipt;

(ii) the amount of funds received;

(iii) the purpose of the transaction;

(iv) the name of the resident; and

(v) the signature of the person receiving the funds.

(3) Resident personal allowance accounts or other personal funds must not be mingled with the personal funds of the operator or the operating funds of the facility, or become an asset of the operator.

(4) Personal allowance accounts and accounts for other resident funds must be separate and distinct from each other and from any other account(s).

(5) Upon change of operator, the current operator must transfer all records to the proposed operator and provide the proposed operator with a written statement of all resident personal allowance accounts, and other resident accounts with funds held in custody. This statement must document that the balance being transferred in each resident fund account is true and accurate as of the date of proposed transfer, and must be confirmed by resident signature(s).

(6) Upon change of operator, the new operator must assume, in writing, responsibility for account balances of funds of residents turned over upon the change of operator, together with responsibility for all requirements of this section.

(7) Records of all transactions must be maintained as part of the facility records.

(b) Personal allowance.

(1) Each resident who is receiving Supplemental Security Income (SSI) or Home Relief (HR) benefits, and who is entitled to a monthly personal allowance by section 131-o of the Social Services Law or section 352.8(c) of this Title, must receive that allowance in accord with the requirements of section 485.12 of this Title and subdivision (c) of this section.

(2) In the event that the resident negotiates the full SSI or HR check to the operator, distribution of the personal allowance must be made to the resident within two banking days of the transaction.

(3) The operator must obtain written acknowledgement monthly from each resident, confirming receipt of his/her personal allowance.

(c) Personal allowance accounts.

(1) At the time of admission to a residence for adults and at the time of the first increase in the personal allowance occurring in any calendar year, the operator must, in writing, offer an SSI or HR recipient or the recipient's representative, if any, an opportunity to place personal allowance funds for incidental use in a facility-maintained account.

(2) The operator must provide for the safekeeping and accountability of a personal allowance account.

(3) The operator must hold personal allowance funds in custody for the sole use of the resident and may not use these funds for any other purpose.

(4) No service fee may be charged by the operator for maintaining a personal allowance account for a resident who is in receipt of SSI or HR.

(5) Residents must be permitted access to personal allowance accounts at least four hours a day, Monday through Friday. An access schedule must be posted and may not be changed without five days advance notice.

(6) Upon request, each resident must have the opportunity, during scheduled access hours, to examine his/her personal allowance account record including deposits, withdrawals and current balance.

(7) If the operator deposits resident personal allowance funds in individual or collective interest-bearing bank accounts, the operator must develop a written procedure for the equitable distribution of interest to each resident's account. Such distribution must be made quarterly.

(8) The operator must maintain individual records for each resident who has a personal allowance account, showing all deposits, withdrawals and the current balance.

(9) The operator must document all personal allowance transactions on a "Personal Allowance Ledger" (DSS-2854) and maintain all paid bills, vouchers and other appropriate payment and receipt documentation in the manner prescribed by the department.

(10) At least monthly, the operator must reconcile personal allowance account balances to the total personal allowance funds maintained by the facility by utilizing a "Personal Allowance Summary" (DSS-2855).

(11) No alternative system of recordkeeping of resident personal allowance accounts may be substituted for the system set forth in paragraphs (1) through (10) of this subdivision without the prior written consent of the department.

(12) At least quarterly, the operator must give each resident who has a personal allowance account, a statement showing total deposits, withdrawals and current balance of the resident's account, and must secure the resident's acknowledgement, in writing, of the accuracy of the statement.

(13) The operator may not require a resident to maintain a personal allowance account at the facility.

(14) The operator is not required to maintain any personal allowance account in amounts in excess of the SSI resource limit.

(15) The resident may terminate the personal allowance account at any time.

(d) Other funds held in custody.

(1) The operator may offer an SSI or HR recipient or any other resident the opportunity to place funds other than personal allowance funds provided pursuant to section 485.12 of this Title, in the operator's custody.

(2) Such funds may not be mingled with any personal allowance funds maintained pursuant to subdivision (b) of this section.

(3) The operator must maintain records and provide for the security of all funds which the resident has voluntarily given to the operator and the operator has voluntarily accepted to hold in his or her custody or to exercise control over.

(4) The operator must obtain written authorization from the resident to hold the resident's funds.

(5) Records of all transactions must be maintained as part of the facility records.

(e) Resident property and valuables.

(1) The operator may offer a resident the opportunity to place property or items of value in the operator's custody.

(2) The operator must maintain inventory records and provide for the security of all property or items of value which the resident has voluntarily given to the operator to hold in custody or to exercise control over.

(3) The operator must obtain written authorization from the resident to hold property or items of value and must provide each resident with a receipt.

(4) Resident property or items of value must be segregated from the assets of the operator.

(5) Records of all transactions must be maintained as part of the facility records.

(f) Money management. (1) If a resident's service plan includes a goal of independent money management, the resident and the operator may agree to a limited schedule for disbursement of resident funds held by the operator under either subdivision (c) or (d) of this section.

(2) Such agreement must be in writing, signed and dated by the operator and the resident, and must be incorporated as an addendum to the admission agreement and service plan.

(g) Return of resident funds and valuables.

(1) At the time of discharge or termination of the admission agreement, but in no case more than three business days after the resident leaves the facility, the operator must provide the resident or the resident's representative with:

(i) a final written accounting of the resident's payment and personal fund accounts;

(ii) a check for the outstanding balance, if any;

(iii) any property or things of value held in trust or in custody by the operator.

(2) The operator must refund, on the basis of a per diem proration, any advance payment(s) made by the resident.

(3) The operator must return to the resident, representative or other appropriate individual or agency, any property or items of value which comes into the possession of the operator after the resident's discharge or transfer.

(4) Upon the death of a resident, the operator must contact the next of kin or legal representative and arrange for the transfer of all property of the individual. When the whereabouts of the next of kin or legal representative are unknown, the operator must contact the appropriate Surrogate's Court to arrange for the transfer.

 

Doc Status: 
Complete

Section 490.7 - Resident services

Section 490.7 Resident services.

(a) The operator is responsible for the provision of resident services, which include, at a minimum, room, board, housekeeping, supervision, case management and activities.

(b) The operator of a facility in which at least 25 percent of the resident population or 25 residents, whichever is less, are mentally disabled persons who have been released or discharged from facilities operated or certified by an office of the Department of Mental Hygiene must arrange, by written agreement, with the outpatient or after-care services of the nearest State psychiatric or developmental facility, or alcoholism and substance abuse agency, the local mental health service or a support service provider, for assistance with the assessment of mental health or other service needs, the supervision of general mental health care, including the provision of necessary alcoholism and substance abuse services, and the provision of related case management services for those residents enrolled in these service programs.

(c) (1) The agreement developed in satisfaction of subdivision (b) of this section must be reviewed and approved, prior to execution, by the appropriate regional offices of the Department of Social Services and the appropriate office of the Department of Mental Hygiene, including the Office of Alcoholism and Substance Abuse.

(2) The agreement must address the role and responsibility, if any, of each party for:

(i) pre- and post-admission assessment and screening, except that final decisions on admission and retention remain the responsibility of the operator;

(ii) the development of service plans and the provision of or arrangements for services;

(iii) securing emergency mental health services and rehospitalization;

(iv) coordination of services within the facility and the exchange of information;

(v) resolving conflicts or disagreements on individual cases.

(3) The agreement may not limit or supersede the authority or the responsibilities of either party.

(d) Resident supervision.

(1) Resident supervision services include but are not limited to:

(i) monitoring, guiding, prompting, and encouraging residents to perform basic activities of daily living including:

(a) attendance at meals and maintenance of appropriate nutritional intake;

(b) performance of personal hygiene and grooming activities;

(c) participation in facility and community programs;

(d) performance of basic money management and fulfillment of service needs;

(e) maintenance of personal living space and belongings; and

(f) medication management.

(ii) observing and reporting to case management staff on each resident's performance of the basic activities of daily living;

(iii) observing and reporting to appropriate staff of the facility each resident's functional performance, in order to identify abrupt or progressive changes in behavior or appearance which may signify the need for assessment and service;

(iv) maintaining knowledge of general whereabouts of each resident;

(v) monitoring resident behavior and the degree of progress in attaining the objectives of the individual service plan;

(vi) handling individual emergencies, or need for assistance, including arranging for medical or other services;

(vii) investigation of incidents involving resident endangerment, injury or death.

(2) In the event that a resident is absent from the facility and the resident's whereabouts are unknown, the operator must initiate efforts to find the resident and, if the absence exceeds 24 hours:

(i) immediately notify the resident's next of kin or representative;

(ii) immediately notify the appropriate law enforcement agency;

(iii) notify the appropriate regional office of the department on the first available working day; and

(iv) send a copy of the incident report to the appropriate regional office of the department within five working days.

(3) In the event that a resident is unable or unwilling to consume regular meals for two consecutive days, the operator must:

(i) immediately notify the resident's personal physician, act on the physician's instructions, and note the call and instructions in the resident's record; and

(ii) notify the resident's mental health service provider, and alcoholism/substance abuse counseling service provider, if any.

(4) (i) In the event a resident requires emergency assistance because of illness or injury, the operator must:

(a) protect the resident's safety and comfort;

(b) secure necessary emergency medical assistance; and

(c) if necessary, arrange for transfer of the resident to an appropriate medical facility.

(ii) In the event that a resident becomes ill or displays a progressive deterioration of health and behavior, the operator must:

(a) protect the resident's safety and comfort;

(b) obtain medical evaluation and services; and

(c) if necessary, arrange for transfer to an appropriate medical facility.

(iii) In the event of illness or injury, the operator must also:

(a) notify the resident's personal physician or, in the event such physician is not available, a qualified alternate;

(b) notify the resident's representative, or next of kin, if known;

(c) upon transfer of a resident to a health, mental health or other residential care facility, send an approved transfer form (or copy of the DSS-3122 medical evaluation and the personal data sheet) and such other information as the receiving facility requests and the operator is required to maintain except that in emergency transfers, this information may be telephoned to the receiving facility and written information sent within 72 hours; and

(d) make a notation of the illness or accident and transfer, if any, in the resident's record. The incident report form may be substituted to record all accidents or illnesses.

(5) In the event that a resident exhibits behavior which constitutes a danger to himself/herself or others, the operator must:

(i) immediately arrange for appropriate professional evaluation of the resident's condition;

(ii) if necessary, arrange for transfer of the individual to a facility providing the proper level of care; and

(iii) notify the resident's representative, or next of kin, if known.

(6) In the event of the death of a resident, the operator must:

(i) immediately take necessary action to notify the resident's next of kin or representative, if known;

(ii) immediately take necessary action to notify the appropriate local authorities; (iii) immediately report the death to the appropriate regional office of the department of health by telephone and submit a copy of the incident report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the death, and (iv) submit a report to the State Commission on Quality of Care for the Mentally Disabled, on a form prescribed by the Commission, if the resident had at any time received services from a mental hygiene service provider. Such form must be received by the Commission within twenty-four hours of the death.

(7) If a resident attempts suicide, the operator must: (i) immediately report the attempted suicide to the appropriate regional office of the department of health by telephone and submit a copy of the incident report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the attempted suicide, and (ii) submit a report to the State Commission on Quality of Care for the Mentally Disabled, on a form prescribed by the Commission, if the resident had at any time received services from a mental hygiene service provider. Such form must be received by the Commission within twenty-four hours of the attempted suicide. (8) If it is believed that a felony crime may have been committed by or against a resident, the operator must immediately report the occurrence to the appropriate regional office of the department of health by telephone and submit a copy of the incident report (DSS-3123), which must be received by the appropriate regional office of the department of health, within twenty-four hours of the occurrence. The operator also must notify an appropriate law enforcement authority as soon as possible but at least within twenty-four hours. In addition, the operator must submit a report to the State Commission on Quality of Care for the Mentally Disabled, on a form prescribed by the Commission, if the resident had at any time received services from a mental hygiene service provider. Such form must be received by the Commission within twenty-four hours of the occurrence.
(9) The operator must prepare an incident report (DSS-3123) whenever:

(i) a resident's whereabouts are unknown for more than 24 hours;

(ii) a resident assaults or injures another resident, or staff or others or is assaulted or injured by another resident, staff or others;

(iii) a resident attempts or commits suicide;

(iv) there is a complaint or evidence of resident abuse;

(v) a resident dies; (vi) a resident behaves in a manner that directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility; (vii) a resident is involved in an accident on or off the facility grounds which results in such resident requiring medical care, medical attention or services; or (viii) it is believed that a felony crime may have been committed by or against a resident.

(10) The operator must:

(i) place a copy of the incident report in the resident's individual record;

(ii) maintain a chronological log or record of all incident reports prepared which includes identification of the resident or residents involved and the type of incident; and

(iii) submit a copy of the report required in paragraph (10) of this subdivision to the appropriate regional office; and, if the resident is a participant in a service program operated under a cooperative agreement with the operator, to that program.

(11) The operator must establish a system which assures that information regarding incidents and changes in residents' conditions affecting their need for case management or supervision is available on an ongoing basis to all shifts.

(12) Assistance with medication management.

(i) Each resident capable of self-administration of medication must be permitted to retain and self-administer medications, provided that:

(a) the resident's physician attests, in writing, that the resident is capable of self-administration; and

(b) the resident keeps the operator informed of all medications being taken, including name, route, dosage, frequency, times and any instructions, including any contraindications, indicated by the physician.

(ii) Residents capable of self-administration are those who are able to:

(a) correctly read the label on the medication container;

(b) correctly interpret the label;

(c) correctly ingest, inject or apply the medication;

(d) correctly follow instructions as to the route, time and dosage, and frequency;

(e) open the container;

(f) measure or prepare medications, including mixing, shaking, and filling syringes; and

(g) safely store the medication.

(iii) Residents who cannot self-administer medications without assistance must be supervised as necessary by the operator or staff in order to carry out the activities listed in subparagraph (ii) of this paragraph.

(iv) For residents in need of supervision of medication compliance, the operator must establish a system for staff to monitor each such resident to ensure that he/she obtains the proper dosage of medication at the designated time.

(v) In any system for supervision, removal of a dose from the container, or measurement or preparation of medications must be performed by the person providing assistance with intake, except that insulin syringes may be prefilled by a licensed nurse.

(vi) Staff may not administer injectable medications to a resident; except that staff holding a valid license from the State of New York Education Department authorizing them, among other things, to administer injectable medications may do so, provided that the injectable medication is one which licensed health care providers would customarily train a patient or his or her family to administer.

(vii) If a resident refuses to take medications or appears unable to independently administer medications, the operator must immediately notify the prescribing physician; and, if different, the primary physician.

(viii) Under no circumstances may staff make a change in the dosage or schedule of administration of medication without the prior written authorization of a physician, or in case of an emergency, by telephone with written confirmation from the physician within seven days.

(ix) If medication is prescribed or discontinued by other than the resident's primary physician, the operator must notify the primary physician within one business day, to advise him or her of the medication and dosage prescribed or discontinued, and note the call or retain a copy of the correspondence in the resident's record.

(x) Storage of medications.

(a) Medication must be kept in a secure storage area at all times whether kept by a resident or kept by the operator for the resident, except when required to be kept by a resident on his or her person for frequent or emergency use.

(b) Secure storage means an area or a cabinet which cannot be removed or entered at will and which cannot be opened except by a key.

(c) An operator retaining controlled substance prescriptions for residents must first obtain a Class 3a controlled substance license as an institutional dispenser, limited from the Department of Health. Standards for storage and recording set forth by the Department of Health are applicable.

(d) Drugs for external use must be stored separately from internal and injectable medication.

(e) Refrigerators used for the storage of pharmaceuticals may not be used for the storage of food or beverages, unless the drugs are stored in a separate, locked compartment.

(f) Medications may not be emptied from one container into another, except when necessary to enable a resident to take medications during temporary absences from the facility.

(g) Directions on labels may not be changed by anyone other than a physician or pharmacist. When a change in dosage or schedule has been made the container must be tagged until the label is corrected. The label must be corrected within 30 days of the change.

(h) Stock supplies of prescription medications are prohibited.

(i) Stock supplies of nonprescription over the counter items for use in self-medication may be maintained.

(j) Prescribed or dated medication must be current.

(k) Any medication which has been prescribed but is no longer in use by a resident must be destroyed or disposed of in accordance with the Public Health Law, unless the resident's physician requests that the medication be discontinued for a specific temporary period.

(xi) Recording for medications.

(a) Information on the medication regimen of each resident must be retained on file in a manner which assures both resident privacy and accessibility for assistance and supervision or in time of emergency.

(b) The following information must be maintained for each resident:

(i) the person's name;

(ii) identification of each medication;

(iii) the current dosage, frequency, time and route of each medication;

(iv) the prescribing physician's name for each prescribed medication;

(v) the dates of each prescription change;

(vi) any contraindications noted by the physician;

(vii) the type of supervision and assistance, if any, needed by the resident; and

(viii) a record of assistance.

(c) When a resident is assisted in taking medication, the name of the resident, the medication, the staff assisting and the date and time of assistance must be recorded. Recording must occur at the time of assistance to each resident. In no event may recording be done by a person who has not observed the taking of the dose.

(e) Case management.

(1) Case management services include:

(i) initial and periodic evaluation, at least once every twelve months, of the needs of a resident and of the capability of the facility program to meet those needs;

(ii) orienting a new resident and family to the daily routine;

(iii) assisting each resident to adjust to life in the facility;

(iv) developing an individual service plan, as specified in section 490.4 of this Part, with realistic goals toward self-sufficiency and revising the individual service plan and goals at least once every twelve months and more often if necessary.

(v) guiding, prompting, and encouraging each resident to:

(a) engage in activities which will increase his/her independent functioning, in keeping with his/her respective service plan;

(b) pursue realistic vocational and avocational goals;

(c) maintain his/her own personal living space and belongings; and

(d) care for and launder his/her own clothing, and use his/her own clothing;

(vi) assisting each resident to maintain family and community ties and to develop new ones;

(vii) encouraging resident participation in facility and community activities;

(viii) establishing linkages with and arranging for services from public and private sources for income, health, mental health and social services;

(ix) assisting residents in making application for and maintaining income entitlements and public benefits;

(x) assisting the resident in obtaining and maintaining a primary physician or source of medical care of choice who is responsible for the overall management of the individual's health and mental health needs;

(xi) assisting the resident in making arrangements to obtain services, examinations, and reports needed to maintain or document the maintenance of the resident's health or mental health, including:

(a) health and mental health services;

(b) dental services; and

(c) medications;

(xii) providing information and referral;

(xiii) coordinating the work of other case management and service providers within the facility;

(xiv) assisting residents in need of alternative level of care to make sound discharge or transfer plans;

(xv) assisting in the establishment and operation of a system to enable residents to participate in planning for change or improvement in facility operations and programs and to present grievances and recommendations.

(2) Each resident must be provided such case management services as are necessary to support the resident in maintaining independence of function and personal choice.

(3) The operator must establish a system of recordkeeping which documents the case management needs of each resident and records case management activities undertaken to meet those needs.

(4) The operator and case management staff within the facility must utilize and cooperate with external service providers.

(f) Activity services.

(1) The operator must have available for residents an organized appropriate activities-socialization program. This program must be available to residents and must emphasize the use of off-site or community-based resources, as well as activity services within the facility.

(2) The operator must maintain an organized and diversified program of individual and group activities which will enable each resident to engage in cultural, spiritual, diversional, physical, political, social and intellectual activities within the community and the facility in order to sustain and promote an individual's potential and a sense of usefulness.

(3) Activities services include, but are not limited to:

(i) arrangement for resident participation in community-based and community-sponsored activities;

(ii) arrangement for transportation or such other resources as are necessary to enable residents to participate in community activities;

(iii) arrangement for provision of programs and activities within the facility by community groups and service providers;

(iv) direct provision, within the facility, of programs and activities of group and individual participation.

(4) Activities must be scheduled during evenings and weekends as well as during the weekday.

(5) A monthly schedule of activities must be prepared one week in advance of its proposed implementation and amended to reflect changes as they occur.

(6) Activities scheduling must take into account and reflect the age, sex, physical and mental capabilities, the interests, the cultural and social background and the recommendations of residents.

(7) Each activities schedule must include:

(i) individual, small group and large group activities;

(ii) facility-based and community activities;

(iii) physical exercise or other physical activities;

(iv) activities which promote self-sufficiency, independence; and

(v) social interaction.

(8) Each activities schedule must identify the location, time, the provider of each activity, and a facility staff contact person responsible for or knowledgeable about each activity.

(9) The current schedule of activities must be conspicuously posted in a public area accessible to all residents and visitors.

(10) A record of the schedule of activities, as planned and as implemented must be maintained for six months.

(11) The operator must provide equipment and supplies sufficient to implement the program of activities.

(12) Accommodations and space must be provided for activity and socialization services in accordance with section 490.11 of this Part.

(g) Facility supervision.

(1) Supervision of the facility includes but is not limited to:

(i) surveillance of grounds, facility and activities of residents and staff to protect residents and property from harm;

(ii) monitoring emergency call systems within the facility;

(iii) conducting and supervising evacuations and fire and evacuation drills;

(iv) implementation of the disaster and emergency plan.

(2) Employees must be trained in the means of rapidly evacuating the building.

(3) At least one staff person on duty on each shift must be designated as responsible for the conduct and supervision of any evacuation or implementation of the disaster and emergency plan.

(h) (1) Housekeeping. The operator must provide housekeeping services necessary to maintain a clean, well-kept and safe living environment. For purposes of this Part, housekeeping services include:

(i) maintaining and cleaning space within the facility;

(ii) purchasing and replacing of household items for common use;

(iii) providing clean towels and linen at least once a week and more often if needed; and

(iv) providing laundry services for blankets, bedspreads, and other furnishings as often as necessary.

(2) Housekeeping services do not include light housekeeping or bedmaking in a resident's individual living space; however, if a resident is incapable of caring or refuses to care for his/her own personal living space, then the operator is responsible for taking all appropriate action to assure the well-being, care and safety of the resident and other residents.

Doc Status: 
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Effective Date: 
Wednesday, October 23, 2002

Section 490.8 - Food service

Section 490.8 Food service.

(a) The operator must provide meals which are balanced, nutritious and adequate in amount and content to meet the daily dietary needs of residents.

(b) The operator must provide at a minimum:

(1) three meals a day, served at regularly-scheduled times, or an alternative meal plan which has the prior approval of the department. Under an approved alternate meal plan, a resident may purchase or prepare some of his/her own meals. However, whether the operator provides the standard meal plan or an approved alternate, the operator is responsible for supervising each resident to insure that the resident maintains appropriate nutritional intake; and

(2) nutritious snacks.

(c) Information on each residents' prescribed dietary regimen and food allergies must be available in the food service area and must be used in the planning, preparation and service of resident meals and snacks.

(d) Menu planning. (1) Menus for regular and modified diets and snacks are to be planned to furnish sufficient nutrients and calories to meet the recommended dietary allowances of the Food and Nutrition Board of the National Academy of Science, National Research Council, adjusted for age, sex, and activity.

(2) The following food groups must be included in each daily menu:

(i) milk -- two or more cups served as beverage or used in cooking. Fortified whole, skim or low fat milk, flavored whole or fortified milk, buttermilk, or cheese may be used. Cheese may be used as milk or meat, but not both;

(ii) meats -- two or more servings of meat, fish, poultry, eggs, cheese or other equivalents. Each serving must provide an edible portion of at least two ounces;

(iii) vegetables and fruits -- four or more servings of at least onehalf cup each, citrus fruit or other fruit and vegetable with vitamin C should be used daily. A dark green or deep yellow vegetable or fruit with vitamin A should be used at least every other day. Fruit and vegetable juices may be used;

(iv) breads and cereals -- four or more servings. Whole grain or enriched breads, cereals, or pasta products may be used;

(v) other foods may be added to the meal to provide personal satisfaction, additional nutrition and calories.

(3) Water, milk, coffee, tea, and a hot, decaffeinated beverage must be available and offered at each meal.

(4) Menus used for planning must specify the size of servings and the anticipated number of each type of meal (regular and modified) to be served.

(5) Meals must be planned and served to provide variety in methods of preparation and content and must reflect the seasonal availability of food. At a minimum, the food items within the meat and the vegetable and fruit groups must be different or prepared differently for each day of the week.

(6) Each day's menu must include a hot entree at least one meal other than breakfast.

(7) Foods listed on menus must be prepared and served as planned; occasional substitutions must be of like nutritional value.

(8) Menus must be:

(i) planned a minimum of three weeks in advance; and

(ii) recorded on an approved menu planning form.

(9) Menus must be conspicuously posted in a public area accessible to residents and visitors and must include any daily changes or substitutions.

(10) Copies of current menus must be available in the food preparation area.

(11) Dated copies of menus as planned, and as served including any changes or substitutions, must be kept on file for a period of six months.

(e) Food purchasing, storage and preparation, and service.

(1) The operator must comply with regulations relating to food service for sanitation, safety and health, as set forth by the New York State Sanitary Code (10 NYCRR Part 14) and other applicable county and local health codes.

(2) In the event that a facility has been inspected by State or local health authorities, a record of such inspection must be kept on file at the facility.

(3) Food purchases and preparation must be based on:

(i) planned menus;

(ii) tested quantity recipes, adjusted to yield the required number of servings; and

(iii) the estimated number of meals to be served.

(4) Food on hand must be sufficient to permit the preparation and service of meals for a minimum of three days in the event of emergency.

(5) Food preparation, service and storage areas must be equipped in accord with standards set forth in section 490.11 of this Part, with the New York State Sanitary Code (10 NYCRR Part 14) and applicable county and local codes.

(6) Food preparation, service and storage equipment must be maintained in accord with standards set forth by the New York State Sanitary Code

(10 NYCRR Part 14), applicable local codes and manufacturers' specifications.

(7) Freezer temperatures must be no warmer than zero degrees Fahrenheit (-18 degrees Celsius).

(8) Storage, preparation and service procedures must:

(i) preserve flavor and appearance of food; and

(ii) conserve the nutritive value of food.

(9) Storage, preparation and service procedures must minimize the potential for contamination or spoilage.

(10) Food that is adulterated, contaminated or otherwise unfit for human consumption must not be served.

(11) Any food service system other than single-seating table service requires prior written approval of the department.

(12) Tableware appropriate for the meal being served must be provided by the operator.

(13) Disposable plates and utensils must not be regularly used for service.

(14) No more than 15 hours may elapse between service of the evening meal and breakfast the next morning.

(15) The evening meal must be served no earlier than 4:30 p.m.

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Section 490.9 - Personnel

Section 490.9 Personnel.

(a) General requirements.

(1) The operator must provide staff sufficient in number and qualified by training and experience to render, at a minimum, those services mandated by this Part.

(2) (i) The operator must develop a written training plan for staff which includes a plan for training new employees and an on-going, in-service program for all staff.

(ii) The training plan must be amended as necessary, revised annually and retained on file for department inspection.

(iii) The on-going in-service program for all staff must be provided at least every 12 months.

(iv) All new employees or employees being newly assigned to perform new tasks must have completed training within three months of employment or assignment.

(3) The operator must conduct an initial program of orientation and in-service training for employees and volunteers which includes:

(i) orientation to the characteristics and needs of the population of the facility;

(ii) discussion of the residents' rights and the facility's rules and regulations for residents;

(iii) discussion of the duties and responsibilities of all staff;

(iv) discussion of the general duties and responsibilities of the individual(s) being trained;

(v) discussion relative to the specific duties and tasks to be performed; and

(vi) training in emergency procedures.

(4) The operator must develop and maintain current written staffing schedules. Staffing schedules must be retained for 12 months after developed or performed.

(5) The operator must maintain personnel records which include:

(i) individual employee records containing verification of qualifications for any position for which qualifications are set by regulation, medical evaluations and any incident reports involving the employee; and

(ii) payment records containing all wages, benefits, reimbursements, bonuses, gifts, or payments given each employee.

(6) At the time of employment and at least every 12 months thereafter, or more frequently if needed, an employee must provide the operator with a statement from a physician, or, with physician oversight, a physician's assistant (P.A.) or a registered professional nurse (R.N.) with special training in primary health care who has physically examined the individual, that:

(i) the individual is free from any health impairment which is potential risk to residents of an adult home and which might interfere with the performance of the individual's duties; and

(ii) the individual has had:

(a) a ppd (Mantaux) skin test for tuberculosis within 30 days prior to employment and no less frequently than every two years after employment begins; positive findings require appropriate clinical follow-up but no repeat skin tests;

(b) any test that may be required by the local board of health.

(7) Notwithstanding paragraph (6) of this subdivision, a physical examination is not required for an applicant or an employee who relies upon or is being furnished treatment by spiritual means through prayer in lieu of medical treatment in accordance with the tenets and practices of a recognized church or religious denomination of which the employee is a member or bona fide adherent. In such cases the operator must require documentation of the employee's standing as a member.

(8) No individual who is suffering from a degree of mental illness or habituation or addiction to alcohol or other drugs such that the individual causes, or is likely to cause, danger to himself/herself or others or is unable to perform his/her assigned duties, may be employed or permitted to work as either an employee or volunteer.

(9) No individual may be permitted to work, either as an employee or volunteer, if infected with a communicable disease that might endanger the health of residents.

(10) Each individual must:

(i) be emotionally, mentally and physically able, as required by function, to provide services and supervision to the residents; and

(ii) maintain personal hygiene and clothing which is clean and appropriate for the functions performed.

(11) Employees who have direct contact with residents must be able to speak, read and write English, and speak the predominant language of the residents.

(12) No person under 18 years of age may:

(i) be charged with direct responsibility for the supervision and personal care of residents; or

(ii) be permitted to work without on-site supervision.

(13) At least one individual currently qualified by a recognized organization to administer basic first aid must be on-duty and on-site at all times.

(14) The operator must inform the appropriate regional office by telephone or in writing within three days of a vacancy in the position of administrator, case manager, activities coordinator, dietary consultant or health consultant.

(b) Resident employment and volunteer work.

(1) Use of residents as volunteers is permitted only to the extent that such voluntary services are:

(i) entered into without use of coercion or threats to the resident;

(ii) not substituted for services of paid employees as required elsewhere in this Part;

(iii) not inconsistent with the physical or emotional needs or limitations of the resident; and

(iv) consistent with the individual service plan and goals prepared for each resident who performs voluntary services.

(2) Employment of residents is permitted only to the extent that such employment:

(i) is entered into without use of coercion or threats to the resident;

(ii) is performed in return for fair compensation;

(iii) meets all applicable requirements of federal and State labor laws; and

(iv) is consistent with the individual's service plan.

(3) The operator must maintain written records which document the plan for a resident to perform paid or volunteer services including:

(i) the name of each resident performing paid or volunteer services;

(ii) the tasks to be performed;

(iii) the rate, type and amount of compensation, if any; and

(iv) the hours and days to be worked.

(4) The operator must maintain written records of work performed.

(c) Administration.

(1) The operator must employ an administrator, or become the administrator if qualified. The administrator must be directly accountable to the operator for operating and maintaining the facility in compliance with applicable requirements.

(2) A person may not be designated as administrator without prior approval of the department. Such approval must be based upon review of qualifications set forth in paragraph (8) of this subdivision and demonstrated knowledge of the regulations for adult homes or residences for adults, as evidenced by previous satisfactory experience or examination by the department.

(3) Approval of an administrator may be withdrawn and civil penalties may be imposed if the department finds, upon inspection and enforcement, that the administrator is unable or unwilling to carry out any of the responsibilities set forth in paragraph (7) of this subdivision.

(4) In facilities with a certified capacity of 25 or more beds a qualified administrator must be employed and on-duty during the day at least 40 hours per week.

(5) In facilities with a certified capacity of 24 beds or less, a qualified administrator must be employed and on-duty during the day for a minimum of 20 hours per week.

(6) In a multi-level health care facility, which includes a residential health care facility, the administrator of the residential health care facility may be approved as the administrator of the residence for adults. Such approval may be granted if the following conditions are met:

(i) the administrator is a licensed nursing home administrator, and is in the residence for adults and accessible to residents at least eight hours each week;

(ii) the operator provides a satisfactory written plan for supervision of the residence for adults which includes:

(a) the description of a system by which supervision of the facility will be exercised;

(b) designation of an assistant administrator;

(c) a profile of the education and experience qualifications of the proposed assistant administrator; and

(iii) the minimum hourly requirements for the combined on-duty presence of the administrator and assistant administrator equals the requirements contained in paragraphs (4) and (5) of this subdivision.

(7) The administrator must be capable of and responsible for:

(i) supervision of the facility;

(ii) operation of the facility in compliance with law and regulations;

(iii) recruitment and general supervision of staff and volunteers;

(iv) supervision of resident services;

(v) admission, transfer and discharge of residents;

(vi) coordination with and development of community activities and services for residents;

(vii) maintenance of community relations;

(viii) protection of residents' rights and development of appropriate mechanisms for their protection; and

(ix) maintenance of a system to enable residents to present grievances or recommendations regarding facility operations and programs.

(8) An administrator must:

(i) be at least 21 years of age;

(ii) be of good moral character as evidenced by at least three recent letters of recommendation from nonrelated individuals knowledgeable of the proposed administrator's background, qualifications and interest in the field of adult care;

(iii) in a facility with a capacity of 24 beds or less, have the following education and work experience:

(a) an associate degree from an accredited college or university in an approved course of study plus two years of related work experience acceptable to the department, one year of which includes related supervisory experience; or

(b) a bachelor's degree from an accredited college or university in an approved course of study plus one year of related supervisory experience acceptable to the department.

(iv) in a facility with a capacity of 25 to 90 beds, have the following education and work experience:

(a) an associate degree from an accredited college or university in an approved course of study, plus three years of related work experience acceptable to the department, one year of which includes related supervisory experience; or,

(b) a bachelor's degree from an accredited college or university in an approved course of study, plus two years of related work experience acceptable to the department, one year of which includes related supervisory experience.

(v) in a facility with a capacity of 91 beds or more, have the following education and work experience:

(a) an associate degree from an accredited college or university in an approved course of study, plus three years of related work experience acceptable to the department, two years of which include related supervisory experience; or,

(b) a bachelor's degree from an accredited college or university in an approved course of study, plus two years of related supervisory experience acceptable to the department.

(9) One year of full-time attendance in an approved course of study at an accredited college may be substituted for each year of work experience, other than required supervisory experience.

(10) Approved courses of study may include, but need not be limited to, human services for dependent adults, health care management programs, and social work programs.

(11) Related work experience may include, but need not be limited to, work in residential care, rehabilitation, health care management and social work.

(12) Related supervisory experience may include, but need not be limited to, work in a setting described in paragraph (11) of this subdivision where the individual had responsibility for the recruitment and supervision of staff and the coordination and management of related program activities.

(13) A person who was the approved administrator of an adult care facility at the time such facility was certified as a residence for adults may continue as administrator of that facility.

(14) An administrator must participate in a program of continuing education which:

(i) consists of a minimum of 60 hours of attendance over a two year period;

(ii) requires the prior approval of the department;

(iii) includes courses, workshops, educational seminars, conferences or college level programs which are directly related to the fields of administration, supervision, program planning and services, human behavior, geriatrics, care of the mentally and physically disabled, social work, health care, financial management, or nutrition;

(iv) includes, for the administrator of a facility with a significant number of mentally disabled residents, at least 15 hours of programming related to the care and treatment of the mentally disabled.

(15) Continuing education credits will not be required of an administrator holding a valid, current New York State license as a nursing home administrator.

(16) If an administrator has a post-baccalaureate degree in an approved course of study, a minimum of 30 hours of attendance for each two year period will be accepted for the three two-year cycles following award of the degree.

(17) Continuing education courses approved by the department and attended by the case manager or activities director will be accepted for a maximum of 20 of the 60 hours required.

(18) In the absence of the administrator, a responsible person must be designated to be in charge of the facility and must be so identified on the facility staffing schedule. The person designated must:

(i) be at least 18 years of age;

(ii) be mentally and physically capable of carrying out the duties of an administrator;

(iii) be knowledgeable of the facility operations;

(iv) have access to records concerned with facility operations;

(v) be empowered to act on behalf of the operator during the administrator's absence concerning the health, safety, comfort and well-being of the residents; and,

(vi) have had training to carry out assignments and take care of emergencies and sudden illnesses of residents.

(d) Case management.

(1) In a facility with 40 or fewer certified beds, a qualified case manager must be on-duty and on-site at least 20 hours per week. Except that in a facility with 24 certified beds or fewer, a qualified administrator who is on-duty and on-site 40 hours per week may be designated to carry out case management services even if that administrator does not meet the specified qualifications for a case manager found in this subdivision.

(2) In a facility with a certified capacity of 41-80 beds, a full-time case manager must be on-site and on-duty at least 40 hours per week.

In a facility with a certified capacity of more than 80 beds, for every additional 40 beds beyond the first 80 beds the operator must provide 20 hours per week of qualified case management services.

(4) A person may not be designated as case manager without the prior written approval of the department.

(5) A case manager must be capable of, and responsible for, executing, through direct performance and coordination, the services and functions stated in subdivision 490.7(e) of this Part.

(6) A case manager must have the following education and work experience; a bachelor's degree or master's from an accredited college or university with a major in human services or service delivery and one year of full-time experience in the provision of services to a dependent adult population.

(7) A person who was the approved case manager of an adult care facility at the time such facility was certified as a residence for adults may continue as case manager of that facility.

(e) Activities.

(1) Each operator must designate a coordinator to develop and implement the activities program.

(i) In facilities with 40 beds or fewer, the administrator and/or the case manager may carry out the duties of the activities coordinator.

(ii) For facilities with more than 40 beds, a qualified activities coordinator must be onsite and on duty at least 40 hours per week.

(2) An activities coordinator must be capable of, and responsible for, executing, through direct performance and coordination the services and functions stipulated in section 490.7(f) of this Part.

(3) An activities coordinator must have at a minimum the following education or work experience:

(i) an associate degree from an accredited college or university with major work in recreation or a related field; or

(ii) satisfactory completion of two years of college with major work in recreation or a related field.

(4) A person without the educational qualifications of a minimum of an associate's degree from an accredited college or university or satisfactory completion of two years of college with major work in recreation, may be designated as an activities director only with the prior written approval of the department.

(f) Resident supervision personnel.

(1) Each person designated or assigned to supervise residents must be capable of executing through direct performance and coordination, the services and functions listed in section 490.7(d) of this Part.

(2) Each operator must assign sufficient staff to perform supervision of residents on a 24 hour basis.

(3) The minimum number of staff required for resident supervision must be determined by resident census. The following number of resident supervision staff must be on-duty and on-site during each respective shift:

 

Facility Census Day Shift (approximately 7a.m. - 3p.m.) Evening Shift (approximately 3p.m. - 11p.m.) Night Shift (approximately 11p.m. - 7a.m.)
1 - 40 1 1 1
41 - 80 2 2 2
81 - 120 3 4 3
121 - 160 4 5 4
161 - 200 5 6 4

 

 

(4) An additional staff person must be added for each additional increment of 60 residents or portion thereof.

(5) The department may require additional staff to be employed based on resident needs, physical layout, and location of the facility.

(6) If local codes require a night watchman, that position may not be counted as part of the minimum number of staff required for resident supervision.

(7) Staff must be immediately accessible at all times while on duty.

(8) Provision must be made for backup staff.

(9) Staff may be assigned other duties, including facility supervision, which do not interfere with their accessibility, provided that such staff remain responsible and available for resident supervision services.

(g) Facility supervision personnel.

(1) Staff performing other duties may be assigned facility supervision responsibilities.

(2) One person on each shift must be designated to direct and implement facility supervision services.

(h) Housekeeping. The operator must provide staff sufficient in number and skill for the purpose of housekeeping.

(i) Maintenance. The operator must provide staff sufficient in number and skill to comply with the maintenance requirements set forth in section 490.11(1) of this Part.

(j) Food service.

(1) The operator must provide staff sufficient in number and skill for the purpose of food service.

(2) A food service manager must be designated and identified on the staffing schedule.

(3) A qualified dietitian or dietetic technician must be retained by the operator as a dietary consultant to provide supervision and consultation sufficient to maintain compliance with food service requirements.

(4) There must be a written agreement between the dietary consultant and operator which includes the qualifications, duties, and time commitment of the consultant and the duration of the agreement.

(5) Persons utilized by an operator to provide food service and nutrition consultation and support must be qualified as:

(i) a dietitian who has received a baccalaureate degree with major studies in food and nutrition or institutional management from an accredited college or university, is a member or eligible for membership in the American Dietetic Association, participates annually in continuing dietetic education and has at least two years full time work experience in dietetics; or

(ii) a dietetic technician who has successfully completed an associate degree program which meets the educational standards established by the American Dietetic Association, and has at least three years full time work experience in dietetics.

(k) Health consultant.

(1) An operator not in compliance with the admission and retention standards set forth in section 490.4 of this Part or with the provisions of subdivisions (d), (e), (f) or (g) of section 490.7 of this Part which relate to the maintenance of resident health or mental health may be required to retain a health or mental health consultant or consultants.

(2) Persons utilized by an operator to provide health consultations must be a physician, physician's assistant, or registered nurse. A certified pharmacist may provide consultation in medications management.

(l) Volunteers.

(1) If an operator uses community volunteers:

(i) they must be supervised by the administrator or his/her designee;

(ii) they must be given orientation to the characteristics and needs of the resident population, the rights of residents, the physical layout of the facility, emergency procedures, and an explanation of their specific responsibilities;

(iii) they must be given a copy of the residents' rights; and

(iv) the operator must maintain a record for each volunteer, which includes the individual's name, current address and telephone number.

(2) If a community volunteer organization is providing services within the facility, the operator may have an agreement with the organization to retain the information required in subparagraph (1) (iv) of this subdivision. Each agreement must include:

(i) the name and address of the organization;

(ii) a designated contact person; and

(iii) a statement that the volunteer organization is able and willing to provide the specific volunteer information as required in subparagraph (1)(iv) of this subdivision.

(3) Volunteer services may not be substituted for services of paid employees as required elsewhere in this Part.

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Section 490.10 - Records and reports

Section 490.10 Records and reports. (a) The operator must collect and maintain such information, records, or reports as determined by the department to be necessary.

(b) The department may examine the books and records of any facility to determine the accuracy of the annual financial statement or for any other reason deemed appropriate by the department to effectuate the purposes of these regulations.

(c) Resident records.

(1) The operator must maintain complete, accurate and current records for each resident.

(2) Such records must be maintained in the facility and must be available for review and inspection by staff of the department or by designees of the department.

(3) Records must be maintained in a manner which assures resident privacy and accessibility to staff to use in the provision of routine and emergency services.

(4) The operator must maintain:

(i) financial records for each resident which contain at a minimum a copy of the current admission agreement, documentation of the status of the resident's payment account, and personal fund account and a current inventory of any personal property held in custody for the resident by the operator;

(ii) personal records for each resident which contain at a minimum personal data, including identification of the resident's next of kin, family and sponsor; the name and address of the person or persons to be contacted in the event of an emergency; copies of the residents' medical and mental health evaluations, the screening and assessments, the individual service plans, schedules and records of paid or volunteer work, if any, and such other correspondence and papers as are available to document the physical and mental status and socialization skills of the resident; and

(iii) records which are readily available to food service staff to enable staff to plan for and accommodate prescribed dietary regimens, allergies and individual food preferences.

(d) Facility records.

(1) The operator must maintain complete, accurate and current records which document operation and maintenance of the facility in accord with applicable law and regulation.

(2) Such records must be maintained in the facility, unless written authorization is given by the department for record retention in another location, and must be available for review and inspection by staff of the department or by designees of the department.

(3) Records must be maintained in a manner which assures an individual resident's rights to confidentiality and privacy.

(4) At a minimum the operator must maintain:

(i) the individual resident records referred to in subdivision (c) of this section;

(ii) resident records referred to elsewhere in these regulations including daily census reports and incident reports;

(iii) a chronological admission and discharge register consisting of a listing of residents registered in and discharged from the facility by name, age, sex of resident, and place from or to which the resident is registered or discharged;

(iv) program records, including service procedures, activities schedules, agreements with external service providers, emergency plans and records of evacuation drills;

(v) food service records, including menus and food purchase records;

(vi) records of maintenance of the physical plant and environmental standards;

(vii) staff records, including personnel procedures, job descriptions, staffing schedules, identification of individual employees, including social security numbers, and payment records; and

(viii) certificates or reports issued by local and other State jurisdictions related to the facility operations, on file and readily accessible for department review, or posted, if required. (ix) records documenting the development, implementation and, at a minimum, the bi-annual updating of quality assurance activities for each area of facility operation. These must include, at a minimum, the development and maintenance of performance standards, measurement of adherence to such standards and to applicable state and local laws and regulations, identification of performance failures, design and implementation of corrective action.

(e) Facility reports.

(1) The operator of a residence for adults must file an Annual Financial Statement (DSS-2963) with the department on or before the 15th day of the sixth calendar month after the close of its fiscal year. Such statement must clearly set forth all financial information pertaining to the operation of such facility in accordance with generally accepted accounting principles, including but not limited to revenues and expenses by categories during such fiscal year, together with such other information as may be required by the department. For all facilities with a capacity of 10 or more residents, the financial statement must be accompanied by an opinion signed by an independent licensed accountant that such financial statement represents the financial operations and position of the facility.

(2) The operator of a not-for-profit residence for adults which submits a charitable organization annual report to the Secretary of State or a residential health care facilities annual report to the Department of Health may submit copies of those reports, together with such other data as may be necessary to satisfy the requirement in paragraph (1) of this subdivision.

(3) The operator must maintain and make available all such books and records as may be required by the department to determine the accuracy of any and all information contained in the financial report filed by the operator.

(4) The operator must submit a quarterly statistical information report to the department.

(f) Mandated forms. The following forms must be utilized by operators of residences for adults:

(1) Personal Data Sheet (DSS-2949);

(2) Daily Census Record (DSS-2900);

(3) Incident Report (DSS-3123);

(4) Medical Evaluation (DSS-3122);

(5) Inventory of Resident Property (DSS-3027);

(6) The following personal allowance account forms must be used unless prior written authorization for substitutions has been given by the department:

(i) Statement of Offering (DSS-2853);

(ii) Personal Allowance Summary (DSS-2855); and

(iii) Personal Allowance Ledger.

(g) The operator must post the following documents:

(1) the operating certificate;

(2) the inspection report for the most recent complete or summary inspection, with any related follow-up inspection reports;

(3) the statement of rights of residents;

(4) weekly menus;

(5) monthly activities schedules;

(6) evacuation procedures;

(7) notice prohibiting employee acceptance of remuneration, tips or gratuities;

(8) the times residents may have access to their personal allowance accounts; and

(9) procedures for presenting grievances and recommendations.

(h) Records retention. (1) Records required by the department, excepting financial records of the previous operator, must be retained in the facility upon change of operator.

(2) Records relating to an individual must be retained at the facility for three years after the death or discharge of a resident.

(3) Program records, facility fiscal records and records relating to application for or renewal of an operating certificate must be retained at the facility for seven years.

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Section 490.11 - Environmental standards

Section 490.11 Environmental standards. (a) In order to provide a safe, comfortable environment for residents, the operator must maintain the facility in a good state of repair and sanitation and in conformance with applicable State and local laws, regulations and ordinances.

(b) A person seeking certification to construct a new building or renovate an existing building for use as a residence for adults or an operator of a certified residence for adults who is planning renovation or remodeling must:

(1) submit to the department, in duplicate, plans and specifications for construction, renovation or building addition; and

(2) proceed with implementation of such plans only after obtaining written approval of the department.

(c) Plans and specifications for construction, renovation or remodeling must be in compliance with the regulations of the department and any applicable building construction and safety codes.

(d) After the effective date of this section, a building newly constructed or converted for use as a residence for adults, or an existing building rehabilitated or renovated for continued use as a residence for adults in which the cost of any alterations, additions, or repairs made within any six-month period exceeds 50 percent of the cost of the replacement of the building at the beginning of that six-month period must be in compliance with the State Uniform Fire Prevention and Building Code for B-1 occupancy requirements for community residences, and any additional requirements of this Part.

(e) In buildings subject to the B-1 classification, corridors may extend no more than 40 feet beyond an exit, or exit stairway. However, if the cost of any alterations, additions, or repairs exceeds 50 percent of the cost of the replacement of the building, exits must be located so that there are no dead end corridors extending more than 20 feet beyond an exit.

(f) In a residence for adults certified as an adult home or residence for adults before September 22, 1978, residents may continue to occupy any portion of the third or higher floor in a building of frame or unprotected ordinary construction, or any portion of the seventh or higher floor in a building of protected ordinary construction:

(1) only until a change of operator occurs; and

(2) prior to a change of operator, only if the residents are capable of self-directed, unassisted emergency evacuation.

(g) Smoke and fire protection.

(1) A supervised smoke detection system, which is listed by an acceptable testing laboratory, must be installed in the following locations:

(i) in each corridor, at least every 40 feet on center, or less if required by the manufacturer;

(ii) at the top of all stairways, elevators and hoistways and other unsealed shafts; and

(iii) in attics, basements and open floor areas designated for public or resident use, at least one detector for each 1,000 square feet of open or unpartitioned space; and

(iv) in the kitchen, a 135µ F rate-of-rise thermal detector must be installed and connected to a working alarm.

(2) Notwithstanding paragraph (1) of this subdivision, an unsupervised smoke detection system may continue to be used in a facility certified by the State Board of Social Welfare or the Department of Social Services prior to September 22, 1978 if all components are audible throughout the building.

(3) Smoke detection alarms are required in all sleeping rooms.

(4) There must be at least one clearly marked, manual, audible pull box alarm on each occupied floor and wing.

(5) An automatic sprinkler system must be installed throughout all buildings of 25 or more beds.

(6) A building which is at least of noncombustible, protected construction and was certified as an adult home before September 22, 1978 does not need to have a sprinkler system installed.

(7) At least one of the required fire protection systems must be connected directly to the local fire department or a central station unless such a connection is not available. The operator must document that such connection is not available.

(8) Smoke barriers including smoke-stop doors of at least one hour fire resistive rating must be installed at the opening of any vertical shafts or stairways. In a stairway between two stories the barrier may be constructed either at the top or bottom of the stairway.

(9) Required smoke barriers, including smoke-stop doors, must be:

(i) smoke tight;

(ii) equipped with a self-closing device;

(iii) maintained in the closed position unless electro-magnetically or electronically connected to the smoke detection systems; and

(iv) open in the direction of exit.

(10) In a facility certified by the department after September 22, 1978, smoke stops are required in all corridors 100 feet long.

(11) There must be at least two means of egress from each floor designated for public or resident use.

(12) The required means of egress must:

(i) be remote from one another;

(ii) not pass through a bedroom or bathroom; and

(iii) not be obstructed at any time.

(13) Each required exit door must be:

(i) at least six feet, eight inches high;

(ii) open in the direction of exit travel;

(iii) be equipped with panic (quick release) hardware;

(iv) be equipped with a self-closing device; and

(v) be freely accessible at all times.

(14) Any window within 10 feet of an exterior fire stairs must be protected with wire glass, explosion-proof plexiglass, or an exterior screen of 1/2 inch 28 gauge wire mesh.

(15) Illuminated exit signs must be installed at each required exit.

(16) When the exit is not visible, illuminated directional exit signs must be installed in all corridors to indicate the location of each means of egress.

(17) Emergency lighting which is listed by an acceptable testing laboratory and powered by battery or an automatic generator must be installed in all exit hallways, stairwells and public areas.

(18) Fire extinguishers which meet National Fire Protection Association standards and which are appropriate for the type of fire which may occur at the site of installation must be:

(i) placed at accessible locations on each floor and each wing;

(ii) wall hung; and

(iii) properly charged and checked.

(19) Evacuation procedures which set forth emergency stations, the duties of all staff and residents, and directions for the rapid evacuation of the premises must be posted in a conspicuous place on each floor and wing.

(20) The following are fire hazards and are prohibited:

(i) smoking in other than designated areas;

(ii) portable electric space heaters;

(iii) self-contained, fuel-burning space heaters;

(iv) nonmetal containers for furnace ashes;

(v) accumulation of combustible materials in any part of the building;

(vi) storage of flammable or combustible liquids in anything other than closed containers listed by an acceptable testing laboratory;

(vii) cooking appliances in resident's room; and

(viii) overloaded electrical circuits.

(21) At least one staff member on duty during each shift must be familiar with the fire alarm systems and procedures for resetting these systems.

(h) Electrical systems.

(1) Electrical wiring and equipment must be maintained and protected to prevent them from becoming fire hazards or sources of ignition.

(2) Electrical wiring and equipment must be firmly secured to the surface on which they are mounted.

(3) Overcurrent protection devices must be maintained in safe operating condition, must not be locked or fastened in the "on" position and must be accessible.

(4) Electrical wiring and equipment must be grounded to provide protection against shock.

(5) Flexible cord must not be run through holes in walls, ceilings, or floors, through doorways, windows or similar openings; attached to building surfaces; or concealed behind or under walls, ceilings, floors or floor coverings.

(i) Safety procedures.

(1) Access to toilets or bathing areas must not be through another resident's bedroom.

(2) Access to resident bedrooms must not be through other bedrooms, bathrooms, or kitchens.

(3) Chainlocks, hasps, bars, padlocks and similar devices must not be used in any resident area in a way which would inhibit access to an exit or the free movement of residents.

(4) Doors in residents' sleeping rooms may be secured by the residents provided such doors can be unlocked from the outside and keys are carried by staff assigned to the floor or wing at all times.

(5) Residents may not have access to storage areas used for medications, cleaning agents, bleaches, insecticides, or any other poisonous, dangerous, or flammable materials.

(6) In a facility certified before October 1, 1978, signal bells, handbells, telephone or other systems audible to staff responsible for that floor or wing must be available for emergency communication between resident bedrooms and staff stations.

(7) In a facility initially certified after October 1, 1978, a centralized emergency call system must be installed. In a facility initially certified after the effective date of this section, the centralized call system must be installed in all resident bedrooms, toilet areas and bathing areas.

(8) Grab bars must be provided in bathtubs and showers.

(9) Bathtubs and showers must have nonslip protections.

(10) The floor area immediately adjacent to a shower or tub must have a nonslip surface or a nonslip mat.

(11) The water temperature at faucets for bathing, showering, and hand-washing must be capable of attaining a temperature of 95 degrees Fahrenheit (35 degrees Celsius) but must not attain a temperature in excess of 110 degrees Fahrenheit (43 degrees Celsius).

(12) Heating pipes and radiators with which residents may come in contact must be shielded to prevent burns.

(13) Illumination must be present at the entrance to each resident bedroom.

(14) In a facility certified after September 22, 1978, all rooms in resident-occupied areas including bedrooms, must have general lighting switches at the entrance to each room.

(15) Night lights must be provided and working in all hallways, stairways and bathrooms which are not private.

(16) A hallway or corridor must not be used for storage.

(17) Throw or scatter rugs must not be permitted unless equipped with a nonslip backing or secured to the floor.

(18) Polishes used on floors must provide a nonslip finish.

(j) Furnishings and equipment.

(1) The operator must provide furnishings and equipment which do not endanger resident health, safety, and well-being and which support daily activities and are appropriate to function.

(2) All resident areas must be decorated, painted, and appropriately furnished.

(3) All upholstery materials, carpets, and similar floor covering, installed on or after October 1, 1978 must be moisture- and soil-resistent, except for property of the resident.

(4) Each operator must furnish each resident with the following minimum bedroom equipment:

(i) a standard, single bed, well-constructed, in good repair, and equipped with:

(a) clean springs maintained in good condition;

(b) a clean, comfortable, well-constructed mattress, standard in size for the bed; and

(c) a clean, comfortable pillow of average bed size.

(ii) a chair;

(iii) a table;

(iv) a lamp;

(v) lockable storage facilities which cannot be removed at will for personal articles and medications;

(vi) an individual dresser and closet space for the storage of resident clothing; and

(vii) a hinged entry door.

(5) Rollaway beds, metal cots, or folding beds may not be used.

(6) Beds with side rails or beds in excess of 36 inches high may not be used.

(7) Each resident must be supplied with:

(i) two sheets;

(ii) a pillowcase;

(iii) at least one blanket;

(iv) a bedspread;

(v) towels and washcloths;

(vi) soap; and

(vii) toilet tissue.

(8) Bed linens, blankets, spreads and towels must be:

(i) clean and washable;

(ii) free from rips and tears; and

(iii) available when changes are necessary.

(9) A complete change of bed linens, towels and washcloths must be provided to each resident at entry, and at least once a week or more often if needed.

(10) The operator must maintain a bed linen inventory equal to at least double the average daily census of the facility.

(11) All windows in resident-occupied areas must be equipped with curtains, shades or blinds.

(12) All operable windows must be equipped with screens.

(13) Light fixtures must be protected to reduce glare.

(14) Dining areas must be furnished with dining tables and chairs appropriate to the size and function of the facility.

(15) Living rooms, sitting rooms, lounges and recreation areas must be furnished with tables, chairs, lighting fixtures and other equipment appropriate to the size and function of the specific area and of the facility.

(16) The food preparation and service area must be provided with sufficient and suitable space and equipment to maintain efficient and sanitary operation of all required functions, in compliance with the New York State Sanitary Code (10 NYCRR Part 14).

(k) Housekeeping.

(1) The operator must maintain a clean and comfortable environment.

(2) All areas of the facility must be free of vermin and rodents.

(3) All areas of the facility, including but not limited to the floors, walls, windows, doors, ceilings, fixtures, equipment and furnishings, must be clean and free of odors.

(4) Blankets, bedspreads, pillows and other furnishings must be laundered as often as necessary for cleanliness and freedom from odors.

(5) Operators must provide sufficient laundry facilities on-site to permit residents to launder their own personal washable clothing. If accommodation of all the residents' needs for laundering and drying facilities, machines, and supplies is not available on-premises or within a reasonable distance off-premises, the operator must provide evidence of such to the department and present a plan for assuming the responsibility for laundering the personal washable clothing of the residents at no charge to the residents. Such a plan must be approved by the department.

(1) Maintenance. (1) The operator of each facility must ensure the continued maintenance of the facility.

(2) The building and grounds must be maintained in a clean, orderly condition and in good repair.

(3) All equipment and furnishings must be maintained in a clean, orderly condition and in good working order.

(4) Wall and ceiling coverings must be free of cracks or tears, peeling wallpaper or paint, and missing or cracked tiles.

(5) Floors and floor coverings must be free of cracks and missing or raised portions.

(6) Electrical systems, including appliances, cords, and switches, must be maintained in good working order.

(7) Plumbing and plumbing fixtures must be maintained in good working order.

(8) Ventilation, air conditioning, and air changing systems must be maintained in good working order.

(9) Heating systems must be maintained in good working order.

(10) The facility building, grounds, and other buildings on the premises must be kept free of breeding areas for flies, vermin, and rodents.

(11) Entrances, exits, steps and outside walkways must be kept free from ice, snow and other hazards.

(12) Windows and screens must be kept clean and in good repair.

(13) Sprinkler systems must be maintained in good repair and working order.

(14) Smoke and fire protection equipment, including fire extinguishers, must be maintained in accord with manufacturer's specifications.

(15) To ensure safe, proper operating conditions, the following systems and equipment must be inspected or tested by a service company at least once every 12 months or more frequently if required by local codes:

(i) smoke detection systems;

(ii) fire alarm systems;

(iii) sprinkler systems;

(iv) fire extinguishers;

(v) heating systems;

(vi) elevators; and

(vii) water supply, if other than a municipal system.

(16) All inspection certificates required by State or local authorities for buildings, grounds and equipment must be available for review.

(17) In a facility of 25 beds or more, certified after September 22, 1978, at least one janitor's closet is required and must be adequately ventilated to the outside and equipped with a water supply and a janitor's sink.

(m) Space requirements for residences for adults. (1) Space in a facility must be used exclusively for the purposes set forth in this Part. An operator may request prior permission from the department, in writing, to utilize space for other activities. The operator must demonstrate that the proposed use is not incompatible with the program, will not be detrimental to residents and complies with applicable local codes. A request to use resident bedrooms for another purpose must include a request for an equal reduction in the certified capacity of the facility.

(2) Every facility must have space for dining and a separate space for leisure activities.

(3) Space used for administration, sleeping or passage must not be used for dining or leisure activities.

(4) Dining rooms and leisure areas must be available for use by residents at appropriate times to provide periods of social and individual and group recreational activities.

(5) Space provided for dining must be at least 15 square feet per certified bed.

(6) Space provided for leisure must be at least 20 square feet per certified bed.

(7) In a facility with 25 or more beds, leisure areas must not be confined to a single room.

(8) If an operator is unable to satisfy the requirements for dining and leisure space set forth in paragraphs (2), (5) or (6) of this subdivision, the operator may make a written request to the department for an exception. At a minimum, the operator is required to provide at least 12 square feet per certified bed for dining, and 15 square feet per certified bed for leisure. Actual space requirements will be conditioned by physical layout and subject to on-site review and written department approval.

(9) Space must be provided for administrative activities and records.

(10) Space must be provided for storage of equipment and supplies.

(11) The operator must maintain areas suitable for posting required notice documents and other written materials in public locations visible to, and accessible to, residents, staff and visitors.

(12) The operator must provide space for residents to meet privately with staff of the facility, visitors or other service providers.

(13) Baths and toilet facilities.

(i) There must be a minimum of one toilet and one lavatory for each six residents and a minimum of one tub or shower for each 10 residents.

(ii) All toilet and bathing areas must be vented by means of natural or mechanical ventilation to the outside.

(iii) All toilet and bathing areas must be adequately lighted.

(iv) All toilet and bathing areas must be properly enclosed and separated by ceiling high partitions and doors.

(14) Bedrooms.

(i) All bedrooms must be:

(a) above grade level;

(b) adequately lighted; and

(c) adequately ventilated.

(ii) Light and ventilation for bedrooms must be by means of windows in an outside wall.

(iii) Bedrooms must open directly into the route of egress.

(iv) Bedrooms may not be used as a passageway, corridor or access to other bedrooms.

(v) In a facility certified after September 22, 1978, bedrooms must be limited to single or double occupancy.

(vi) Single bedrooms must have a minimum floor area of 100 square feet exclusive of foyer, wardrobe, closets, lockers, toilet rooms, and bathrooms.

(vii) Double bedrooms must have a minimum floor area of 160 square feet exclusive of foyer, wardrobe, closets, lockers, toilet rooms, and bathrooms.

(viii) Notwithstanding subparagraph (vi) of this paragraph, any single bedroom in use and approved by the department or the Board of Social Welfare as of September 22, 1978, which provides a minimum of 85 square feet, exclusive of entrance way and closet space and equipped as required by subdivision (j)(4) of this Part may continue to be used.

(ix) Notwithstanding subparagraph (vii) of this paragraph any double bedroom in use and approved by the department or the Board of Social Welfare as of September 22, 1978, which provides a minimum of 70 square feet per resident, exclusive of entrance way and closet, provides a minimum of three feet between beds and equipped as required by subdivision (j)(4) of this Part, may continue to be used.

(x) Not more than two residents may share a bedroom; however, if a bedroom was used for more than two residents as of September 22, 1978, and such use was approved by the department or the Board of Social Welfare, such bedroom may continue to be used under the conditions set forth in subparagraph (ix) of this paragraph.

(15) All facilities must have at least one telephone available for outside calls for every 40 residents or portion thereof. The operator may impose equivalent charges for use.

(n) Heating.

(1) The facility must have a permanently installed heating system capable of maintaining required temperatures.

(2) When the outside temperature is 65µ F (18µ C) or less, the inside temperature in resident bedrooms and common areas must be, at a minimum, 68µ F (20µ C).

(3) When the outside temperature exceeds 85µ F (30µ C) the operator must:

(i) take measures to maintain a comfortable environment;

(ii) monitor resident exposure and reactions to heat;

(iii) arrange for health care, if needed; and

(iv) arrange for the temporary relocation of residents, if needed.

 

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Section 490.12 - Disaster and emergency planning

Section 490.12 Disaster and emergency planning. (a) The operator must have a written plan, approved by the department, which details the procedures to be followed for the proper protection of residents and staff in the event of an actual or threatened emergency or disaster which interrupts normal service.

(b) The plan must include but not be limited to:

(1) procedures and designated staff responsibilities for execution of any part of the plan;

(2) procedures for full and partial evacuation of the facility including:

(i) designation of staff responsible for the conduct and supervision of evacuation;

(ii) a schedule and procedures for training all staff in evacuation procedures and responsibility;

(iii) procedures for the conduct of monthly fire drills for staff;

(iv) procedures for the conduct of quarterly fire drills for staff and residents;

(v) specific and current procedures for the evacuation of any resident who needs assistance with evacuation;

(3) preliminary plans for relocation of residents, if necessary;

(4) coordination of the facility plan with such community resources and local disaster and emergency planning organizations as may be available to provide temporary shelter, food and clothing, and other essential services; and

(5) plans for the maintenance of service in the event of reductions in personnel.

(c) The operator must conduct training for each new and current employee and volunteer in both the overall plan and the individual's specific responsibility in its execution, and must review with staff their performance after the conduct of each drill.

(d) Evacuation procedures must be conspicuously posted on every floor and in each wing of the facility.

(e) Emergency contact numbers and procedures must be available to the person(s) with supervisory service responsibilities.

(f) To ensure that staff of each shift have an opportunity to practice their respective responsibilities, the operator must conduct monthly fire drills for staff and volunteers which must:

(1) be conducted at varied times during the day and night;

(2) include both full and partial evacuation of the facility; and

(3) simulate different fire conditions.

(g) At least once in each calendar quarter, residents must participate in a fire drill; each 12 months, at least one of these drills must include total evacuation of the facility.

(h) The operator must arrange, at least annually, to have the local fire authorities, a qualified service agency or department staff observe one fire drill in which residents participate.

(i) The operator must maintain a record of all fire drills, including the date and time of the drill, a description of the drill, the number of residents participating, and the signature of participating staff and volunteers.

(j) The appropriate regional office of the department must be notified by the next business day any time there is a work stoppage, a fire within the facility, failure of any one of the fire prevention or detection systems, lack of hot water, interruption or shut off of essential services or any circumstance necessitating the implementation of the disaster and emergency plan. (k) The operator of a residence for adults shall obtain from the Department’s Health Provider Network (HPN), HPN accounts for each residence he or she operates and ensure that sufficient, knowledgeable staff will be available to and shall maintain and keep current such accounts. At a minimum, twenty-four hour, seven-day a week contacts for emergency communication and alerts, must be designated by each residence for adults’ in the HPN Communications Directory. A policy defining the residence for adults’ coverage consistent with the residence for adults' hours of operation, shall be created and reviewed by the residence for adults no less than annually. Maintenance of each residence for adults’ HPN accounts shall consist of, but not be limited to, the following: (1) sufficient designation of the residence’s HPN coordinator(s) to allow for HPN individual user application; (2) designation by the residence for adults operator of sufficient staff users of the HPN accounts to ensure rapid response to requests for information by the State and/or local Department of Health; (3) adherence to the requirements of the HPN user contract; and (4) current and complete updates of the Communications Directory reflecting changes that include, but are not limited to, general information and personnel role changes as soon as they occur, and at a minimum, on a monthly basis.

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Effective Date: 
Wednesday, November 2, 2005

Part 491 - SHELTERS FOR ADULTS - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies of Part 491 please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 491

SHELTERS FOR ADULTS

(Statutory authority: Social Services Law, Sections 20[3][d],

34[3][f], 131-o, 460, 460-a--460-g, 461, 461-a--461-h)
Sec.
491.1 Applicability
491.2 Definition
491.3 General provisions
491.4 Admission standards
491.5 Discharge and transfer
491.6 Resident funds and valuables
491.7 Resident rights
491.8 Resident services
491.9 Food service
491.10 Environmental standards
491.11 Disaster and emergency planning
491.12 Personnel
491.13 Staff qualifications
491.14 Records and reports

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Part 492 - ADULT-CARE FACILITIES STANDARDS FOR DAY PROGRAMS FOR NONRESIDENTS

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Statutory Authority: 
Social Services Law, Sections 20, 34, 461-k

Section 492.1 - Scope.

Section 492.1 Scope. (a) This Part establishes requirements for the operation of day programs for nonresidents of adult homes, residences for adults and enriched housing programs.

(b) Parts 485, 486, 487, 488 and 490 of this Title apply to this Part except as specifically limited. For the purposes of this Part all applicable references to "resident" in Parts 485, 486, 487, 488 and 490 include residents and participants in day programs.

 

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Section 492.2 - Definitions.

492.2 Definitions. For the purposes of this Part, the following definitions apply:

(a) Day program means an organized program for nonresidents of adult homes, residences for adults and enriched housing programs which include personal care, supervision and such other services which the operator is authorized to provide to residents of such facilities, but which are provided for less than 24 hours during any period of the day or night.

(b) Caregiver means an adult who regularly provides services similar to those provided to participants by the day services for nonresidents program.

(c) Personal care services and supervision services include those services that the operator is required to provide to the residents of the adult home, residence for adults or enriched housing program.

 

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Section 492.3 - General requirements.

492.3 General requirements. (a) No day program for nonresidents of adult homes, residences for adults or enriched housing programs can be operated without prior written approval of the department.

(b) When the department approves an application it will issue a letter of authorization to the operator of an adult home, residence for adults or enriched housing program to provide services to nonresidents of such facilities. The letter of authorization will specifically refer to the ability of the operator to provide day program services to nonresidents of such facilities. Such authorization is subject to periodic review.

(c) When overnight care is provided to nonresidents of adult homes, residences for adults or enriched housing programs, the capacity of such facilities cannot exceed the capacity authorized for such facilities.

(d) At the time of application to operate a day program for nonresidents, the operator must submit to the department a written description of the proposed program including, but not limited to:

(1) a description of the services to be provided to nonresidents and a description of how such services would be coordinated with the services provided to permanent residents;

(2) a description of the physical space to be used including plans for how such space is to be used and coordinated with the space used by the permanent residents;

(3) the number of staff engaged in delivering services to nonresidents, including duties, hours to be worked and staff qualifications and how such staff would be coordinated with existing staff;

(4) the number of participants to be served during the day, evening and night;

(5) a description of how the participants' community-based plan of care, if any, will be used and coordinated with the nonresident services program;

(6) a description of the information and referral services to be provided to participants and the participants' caregivers;

(7) the transportation services, if any, which are available to participants;

(8) the program's financial policies and procedures;

(9) the program's budget;

(10) proposed forms, including any agreements which nonresidents must sign; and

(11) plans to insure that participants, staff and volunteers are included in the provisions for disaster and emergency planning contained in sections 487.12 and 488.12 of this Title.

(e) The facility must provide space, equipment and furnishings equivalent to those required for the facility for each participant in a day program for nonresidents. Space used by participants may be shared with that space required for residents of adult homes and enriched housing programs according to sections 487.11 and 488.11 of this Title provided that such use does not interfere with the care and comfort of such residents. The space set aside for day program services is subject to department approval based upon the program proposal submitted by the operator.

(f) Beds used for nightcare participants must:

(1) be specifically designated for the program; and

(2) must not be situated in a resident's room.

(g) The number of participants accepted for day program services must be limited as specified in the program proposal submitted by the operator and approved by the department.

(h) Space used for day program services must be in an area specifically designated for resident occupancy, or in an area which meets all environmental and fire safety requirements for the facility.

(i) The day program services provided to participants must be provided in a manner which is consistent with the department's regulations concerning the applicable facility, including regulations which set forth the rights of the residents of such facility.

(j) Proposed changes in a day program, including but not limited to substantial changes in the space allocated for day program services and the utilization thereof, the extent and type of services provided, and the number of participants, must be submitted to the department in writing. Such changes must be made only upon the prior written approval of the department.

(k) The operator of an adult home, residence for adults or enriched housing program must not discontinue operation of a day program for nonresidents without written notification to the department and each participant in the program and the participant's caregiver or representative, not less than 60 days prior to the date that services are expected to be discontinued.

 

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Section 492.4 - Program administration and staffing.

492.4 Program administration and staffing. The operator of the adult home, residence for adults or enriched housing program:

(a) is responsible for the overall operation of the program;

(b) is responsible for compliance with all applicable provisions of this Part;

(c) must designate a program director who will:

(1) coordinate the services provided to recipients of day program services with the services provided to the residents of the adult home, residence for adults and enriched housing program; and

(2) be responsible to the operator for the management and administration of the services provided to nonresidents of adult homes, residences for adults or enriched housing programs. Such responsibilities include, but are not limited to:

(i) assigning and supervising activities for all personnel, including volunteers, to assure that participants in the day program receive assistance in accordance with their needs;

(ii) being responsible for the admission and discharge of participants;

(iii) being responsible for the development of individual service plans;

(iv) being responsible for activity programming; and

(v) being responsible for the coordination of transportation services.

(d) The program director must:

(1) be at least 21 years of age; and

(2) be of good moral character as evidenced by at least three letters of recommendation from individuals who have knowledge of the proposed director's background, qualifications and interest in the field of adult care; and

(3) be familiar with the nonresident services program and the operation of facilities in which such program is conducted; and

(4) have a bachelors degree from an accredited college or university in the field of social work or health care plus two years of work experience in programs for the elderly or the mentally or physically handicapped; or

(5) have an associate degree from an accredited college or university with major work in human resources or services delivery, and three years of full-time experience in the provision of services to a dependent adult population; or

(6) have a master's degree in social work or a related field from an accredited college or university, plus one year of experience in a program for the elderly or the mentally or physically handicapped.

(e) If fewer than the equivalent of 15 daily participants are enrolled in a nonresident services program, the following facility staff, approved by the department, may act as program director:

(1) facility administrator;

(2) case manager; or

(3) activities director.

(f) The operator must assure that the personnel requirements of sections 487.9 and 488.9 of this Title are complied with.

(g) The operator must assure that adequate personnel are on duty at all times when the nonresident services program is in operation to assure safe care of the program's participants. Adequate is defined as a ratio of one staff member in addition to those required for residents of the home to each seven full-time participants receiving day and evening care, and one additional staff member for each 15 daily participants receiving night care. This ratio may include the program director, if the program director is not serving in any other capacity on the adult home staff, or if the individual's time as director is in addition to the hours required for adult home or residence duties.

 

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Section 492.5 - Admission and discharge policies.

492.5 Admission and discharge policies. (a) The operator must admit to the program only those persons 18 years of age and older who are not residents of an adult home, residence for adults or enriched housing program who, by reason of social, physical and/or mental dependencies require the services provided by a nonresident services program in order to remain in or return to the community.

(b) The operator must give admission priority to persons who:

(1) require supervision in order to live in the community; or

(2) need assistance with activities of daily living in order to remain in the community; or

(3) are socially isolated or disoriented and need opportunities for social interaction to prevent deterioration that would lead to placement in congregate facilities; or

(4) are in transition from a higher level of care; or

(5) are in danger of being neglected or abused by a caregiver or have needs which the caregiver is unable to meet; or

(6) are receiving services as part of a protective services for adults program.

(c) The operator of an adult home, residence for adults or enriched housing program must not admit or retain in the nonresident services program any person who would be inappropriate for admission to the facility.

(d) Prior to admission, the program director must interview the applicant and the applicant's caregiver or representative, if any. The interview must provide the director with information on the general health characteristics, psychosocial condition, and nutritional habits of the applicant, and his/her home support system and care needs. The interview must acquaint the applicant and caregiver or representative with the services and activities offered by the facility.

(e) At admission, the participant must obtain and provide to the operator a written, dated and signed report from the participant's physician, stating:

(1) that the physician has physically examined the participant within the last 30 days;

(2) a current list of medications and treatments provided to the participant by community providers;

(3) the needs of the participant for assistance with self-administration of medication;

(4) the dietary needs of the participant;

(5) the assistance needed in the activities of daily living;

(6) any contraindications or limitations to the individual's participation in program activities.

(f) Every six months, beginning on the date of admission to the program, the participant must obtain and provide to the operator a written, dated and signed statement from the participant's physician indicating changes in the participant's needs for assistance with self-administration of medication. If there are no changes in such needs, the statement required by this subdivision must so indicate.

(g) The operator must enter into a written agreement with the participant. The agreement must specify the basic services to be provided to the individual by the operator, the charges for these services, and the obligations of the participant, the participant's representative and the caregiver. The agreement must also contain a statement of the operator's refund policies.

(h) The participant and caregiver or representative must receive a copy of the written agreement.

(i) When a participant is involuntarily discharged from the program, the operator must provide at least 72 hours prior written notification to the participant and caregiver or representative. The notification must state the date of the notice, the date of discharge and the reason(s) for discharge.

(j) The notice required by subdivision (i) of this section may be disregarded when a participant develops a serious physical or mental dysfunction which constitutes an immediate and present danger to himself/herself or others.

 

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Section 492.6 - Program planning and implementation.

492.6 Program planning and implementation. (a) The operator must assure that each participant in a nonresident services program has an individualized written plan for services prepared by the program director.

(b) In developing the plan, the program director must involve the participant, caregiver, other professionals and the local department of social services, as appropriate. The service plan must describe:

(1) the needs of the participant;

(2) the service goals for the participant while in the nonresident services program and the manner in which they will integrate with other care being rendered by other service providers;

(3) the services to be provided;

(4) the name of the staff member responsible for implementing the service plan; and

(5) the time limit for the plan, with provision for review and renewal.

(c) The operator must have a program plan which meets the following criteria:

(1) Overall planning of services and activities must reflect the individual service plans.

(2) The primary program mode must be group activities with provision for individual activities and services.

(3) Staff will encourage participants to engage in the planning and operation of the program.

(4) Staff will encourage participants and residents to attend meals and activities together.

(5) Staff will explore and utilize other available community resources as a regular part of the program activities.

(6) The operator will supply adequate and appropriate equipment and supplies.

(7) Physical activity will be encouraged within the participant's limitations, as determined by information furnished by the participant's physician.

(8) Activities designed to improve the capacity of the participants for selfcare and personal hygiene will be provided.

(9) Participants will be afforded the opportunity to rest; there will be a sufficient number of lounge chairs available for participants' needs.

(10) Participants may refuse to participate in any activity of the nonresident services program.

(d) A schedule of activities must be prepared and must:

(1) be in writing;

(2) be planned for a two-week period, one week in advance of its implementation;

(3) specify each activity to be provided, the days of the week each activity will be conducted, and the approximate duration of each activity; and

(4) be posted in a conspicuous place in the area where the nonresident services program will be conducted.

(e) If activities for participants and residents are jointly planned and conducted, one schedule of activities provided in accordance with applicable provisions of section 487.7 of this Title may be used.

(f) There will be a minimum of four hours of planned activities for each program day.

(g) Personal care services will be provided in accordance with applicable provisions of sections 487.7 and 488.7 of this Title.

(h) Supervision services will be provided in accordance with applicable provisions of sections 487.7 and 488.7 of this Title.

(i) The program director will encourage caregivers to transport the participants to and from the facility.

(j) The program director will coordinate the utilization of volunteers and other resources in the community for the purpose of transporting participants to the facility.

(k) The operator may transport participants to and from the program.

(l) If a participant wants or needs to leave the program before the scheduled departure time, the participant's caregiver must be notified before the participant leaves the facility. Such notification must be documented in the participant's case record.

(m) If a participant does not arrive as scheduled and the facility has not been contacted about the delay, the program director will immediately attempt to contact the participant, caregiver or representative to determine the reason for the absence.

(n) Any abrupt or progressive changes in a participant's behavior or appearance which suggests the need for additional help or services will be reported as follows:

(1) A report will be made immediately to the participant's caregiver and local department of social services caseworker if the participant is a social services client.

(2) The report will be made to the caregiver or representative if the participant is not a social services client.

(3) The report will be made to the local department of social services if the participant has no caregiver or representative.

(4) Any action taken by the operator or program director as a result of changes in the participant's behavior or appearance will be noted in the participant's case record.

(o) The operator will offer referral services to participants and caregivers when such persons are in need of services not otherwise provided by the facility.

 

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Section 492.7 - Nutrition services.

492.7 Nutrition services. (a) A meal must be provided to each participant in attendance at the program during the time meals are served in the facility. The meal must provide at least one third of an adult's daily nutritional requirement as recommended by the U.S. Department of Agriculture.

(b) A nutritious mid-morning, mid-afternoon, and evening snack must be offered daily to each participant in attendance.

(c) A modified diet must be provided for a participant, if prescribed in writing by a physician, and if such diets are regularly available to residents of the facility.

(d) If the operator does not provide or cannot arrange for the provision of a modified diet to a participant who needs such a diet, the participant cannot be accepted or retained in the program.

(e) Space permitting, participants and residents must dine together.

(f) Nutrition education must be provided to participants in need of such instruction, as determined by the individual service plans.

(g) The operator must assure that the quality and quantity of food provided to participants complies with the provisions of sections 487.8 and 488.7 of this Title.

(h) Food service records for the nonresident program must be maintained in accordance with sections 487.8 and 488.8 of this Title.

 

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Section 492.8 - Support services.

492.8 Support services. (a) Participants must be observed throughout the time spent in the nonresident services program for symptoms of illness or injury.

(b) The operator must make advance arrangements for the care of participants who become ill or are injured while receiving nonresident services. Such arrangements must include:

(1) immediate notification of the participant's caregiver or representative;

(2) provision for emergency medical care or first aid; and

(3) notification of the participant's physician.

(c) Specific instructions obtained from a physician for the care of persons with special medical problems or needs must be written on their records and followed.

(d) Participants must be permitted to retain and self-administer their own medications provided their physicians have certified, in writing, that they are capable of doing so.

(e) Self-administration of medication means that the person for whom a medication is prescribed is able to:

(1) correctly read the label on the medication container;

(2) correctly interpret the label;

(3) correctly ingest, inject or apply the medication, whichever is appropriate;

(4) correctly follow instructions as to the time and/or frequency of taking the medications; and

(5) obtain the medication.

(f) For participants who require, by order of their physicians, assistance with self-administration of medication, the operator may:

(1) remind the participant when it is time to take the medication;

(2) read the label to the participant;

(3) help the participant to open the container;

(4) observe the participant to see that the correct dosage is being taken, according to the prescription. Neither the operator nor staff of a nonresident services program can administer medication to a participant in the program.

(g) If a participant is assisted in the administration of medications, a record must be kept for each participant in accordance with applicable provisions of sections 487.7 and 488.7 of this Title.

(h) Medication kept by a facility for a participant must be stored in accordance with applicable provisions of sections 487.7 and 488.7 of this Title.

(i) Medication kept by the facility must be returned to the participant, caregiver or sponsor:

(1) when the participant leaves the program on a permanent basis;

(2) when a physician changes a medication order;

(3) upon the occurrence of the expiration date; or

(4) when the container is empty.

 

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Section 492.9 - Records and reports.

492.9 Records and reports. (a) The operator must maintain records for each participant in the nonresident services program which contain a copy of:

(1) the written agreement;

(2) a medical evaluation and semiannual update;

(3) a preadmission interview;

(4) a written plan for services; and

(5) such other information relating to the physical, mental and social status of the participant.

(b) The following records must be maintained for the nonresident services program:

(1) a chronological admission and discharge register (DSS-3026) or a substitute approved by the department;

(2) a daily attendance record; and

(3) an incident report (DSS-2903).

(c) The operator must assure that program and participant records are maintained and retained according to applicable provisions of sections 487.10 and 488.10 of this Title.

 

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Part 493 - HEARING PROCEDURE: RESIDENTIAL CARE PROGRAMS FOR ADULTS

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Statutory Authority: 
Social Services Law, Sections20, 34, 460, 460-d

Section 493.1 - Definitions.

Section 493.1 Definitions. (a) Commissioner. Commissioner means the New York State Commissioner of Social Services or the commissioner's designee.

(b) Commissioner's designee means an attorney employed by the department who is authorized by the commissioner to issue hearing decisions.

(c) Department. Department means the New York State Department of Social Services.

(d) Hearing. Hearing means a formal procedure by which the department:

(1) determines to assess a civil penalty against the operator of a facility for failing to operate a facility in compliance with this Title, as authorized by section 460-d(7) of the Social Services Law; or

(2) determines to assess a civil penalty against the operator of a facility who does not possess a valid operating certificate and reviews an order sent to such operator to close the facility, as authorized by section 460-d(9) of the Social Services Law;

(3) reviews the denial of an application for, or for renewal of, an operating certificate, as authorized by section 493.2(c) of this Part;

(4) determines to revoke, suspend or limit an operating certificate, as authorized by section 460-d(4) (b) of the Social Services Law; or

(5) determines to modify an operating certificate, as authorized by section 461-b(7) of the Social Services Law.

(e) Expedited hearing. Expedited hearing means the procedure by which an operator has an opportunity to challenge an order of the commissioner made under section 460-d(8) of the Social Services Law, or a temporary suspension of an operating certificate made under section 460-d(4) of the Social Services Law.

(f) Facility. Facility means an adult care facility, as defined in section 2(21) of the Social Services Law, which provides residential care and services to adults and which is subject to inspection and supervision by the department under article 7 of the Social Services Law.

(g) Hearing officer. Hearing officer means an attorney who is employed by the department and authorized by the commissioner to preside at hearings.

(h) Operator. Operator means a natural person or persons, a corporation, a social services district, or other governmental agency which operates a certified or uncertified adult care facility, or which has applied for a certificate to operate an adult care facility.

(i) Operating certificate. Operating certificate means a time-limited, non-transferable document issued by the department to signify approval to operate an adult care facility.

 

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Section 493.2 - General.

493.2 General. (a) To revoke, suspend, limit, or modify an operating certificate, or to assess a civil penalty against an operator for failing to operate in compliance with the Social Services Law or this Title, or for operating a facility without a valid operating certificate, the department must hold a hearing in accordance with the procedures established in this Part, except as stated in subdivision (b) of this section.

(b) The department may temporarily suspend or limit an operating certificate without a hearing for 60 days or less if the department finds that the public health, or an individual's health, safety or welfare, is in imminent danger. If the department schedules an expedited hearing to begin during the suspension period, in a proceeding to suspend, revoke or limit the operating certificate, as set forth in section 493.8 of this Part, the temporary suspension will remain in effect until a decision is issued. The department also may issue an order to the operator to correct immediately a condition which constitutes a danger to the physical or mental health of the facility's residents. Such an order will remain in effect unless reversed by a decision issued after a hearing held under this Part.

(c) Upon the denial of an application for, or renewal of, an operating certificate, the operator has the right to a hearing to challenge the denial. The department must notify the operator of the denial by certified mail, return receipt requested, and must include in the notice of denial the grounds upon which the denial is based, and a statement that the operator may request a hearing to review the denial by mailing a request for a hearing to the department's office of administrative hearings, bureau of special hearings, post-marked within 60 days of the operator's receipt of the department's notification of denial. The notice of denial also must advise the operator that failure to request a hearing in the manner provided in this subdivision within this 60 day period will preclude the operator from challenging the department's determination at a hearing.

(d) The parties may enter into a stipulation to settle any action described in subdivisions (a), (b) and (c) of this section and this stipulation may include the requirement that the operator pay a civil penalty.

(e) When an operating certificate expires during the course of a hearing to revoke, suspend or limit the operating certificate, the department may temporarily extend the operating certificate until the hearing decision is issued.

(f) When an operator requests a hearing to review the denial of an application to renew an operating certificate, the operating certificate remains in effect until either the hearing decision is issued, the operator withdraws the hearing request or the operator fails to appear at the hearing.

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Effective Date: 
Wednesday, January 4, 2006

Section 493.3 - Proposed statement of charges.

493.3 Proposed statement of charges. (a) In an appropriate case, the department may commence an administrative action against an operator or respond to a request for a hearing made by an operator, by delivering a proposed statement of charges, in person or by certified mail, return receipt requested, to the operator.

(b) The proposed statement of charges must contain:

(1) a list of witnesses whom the department intends to present and a statement indicating the substance of their anticipated testimony;

(2) notification that the operator has the opportunity to review all inspection reports and any other documents, such as letters,charts, graphs and photographs upon which the department based its decision, at the appropriate regional office of the department during normal business hours; and

(3) a demand that the operator provide the department with a written response to the charges, either hand-delivered or postmarked within 30 days after the receipt of the proposed statement of charges. The department also must inform the operator that failure to comply with the provisions of section 493.4 of this Part may preclude the possibility of settlement.

(c) In the proposed statement of charges, the department also must provide to the operator a statement which includes the following information for the following kinds of cases:

(1) in an action to assess civil penalties against an operator pursuant to section 486.5(a) of this Title: a general statement of the facts, and a citation to the statutes, rules and regulations upon which the proposed civil penalty is based, and the amount of penalty for which the operator may become liable, as well as the corrective actions which must be taken to correct the violation(s). The statement must advise the operator whether rectification of the identified violations will constitute a complete defense to the assessment of civil penalties;

(2) in an action to assess civil penalties against the operator for operating a facility without a valid operating certificate and to review an order to the operator to close the facility, pursuant to section 486.5(b) of this Title: a general statement of the facts, and a citation to the statutes, rules and regulations upon which the proposed civil penalty is based and the amount of penalty for which the operator may become liable. The statement also must advise the operator that the department may not assess a civil penalty if the operator can demonstrate that the operator possessed an operating certificate issued pursuant to article seven of the Social Services Law, article 28 of the Public Health Law or article 16, 23 or 31 of the Mental Hygiene Law within 30 days of being provided by the department with a written summary of the inspection by which the department determined that the operator is operating an uncertified facility, or that the operator transferred all unrelated dependent adults to appropriate facilities within 30 days of receiving such written summary; and

(3) in an action to modify, revoke, suspend or limit an operating certificate or to challenge the denial of an application for an operating certificate or for renewal of an operating certificate: a general statement of the facts, and a citation to the statutes, rules and regulations upon which the department based its determination.

 

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Section 493.4 - Response.

493.4 Response. (a) If in response to the proposed statement of charges the operator wishes to attempt to settle an action with the department, the operator must file a written response to the proposed statement of charges with the department's counsel's office in Albany. The written response must be either hand-delivered during normal business hours within, or if mailed, postmarked no more than 30 days after the receipt of the proposed statement of charges. The response must:

(1) specifically admit or deny each charge;

(2) set forth with particularity the operator's position with respect to each charge which is denied. The operator must state the legal and factual basis for denying the charge, and must submit copies of all documents, such as letters, charts, graphs and photographs in support of the operator's position; and

(3) list the witnesses whom the operator intends to present and a statement indicating the substance of their anticipated testimony.

(b) Upon receipt of the response, the department may require further clarification from the operator and may require the presence of the operator at an office of the department to resolve any outstanding issues. The department may settle the action or any part of it, and may proceed to a hearing on those issues which are not settled.

(c) If the operator fails to file a written response within 30 days of receipt of the proposed statement of charges, the department may mail a notice of hearing and statement of charges to the operator in accordance with the provisions of section 493.6 of this Part.

 

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Section 493.5 - Joinder.

493.5 Joinder. (a) The department may combine into a single hearing any of the actions for which a hearing may be held pursuant to this Part.

(b) The department may join in one action all operators against whom there is asserted jointly, severally or in the alternative any violation arising out of the same transaction or occurrence, and if there is a question of law or fact common to all operators which will arise in the action.

(c)The determination of whether to combine actions or join separate operators is wholly within the department's discretion.

 

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Section 493.6 - Notice of hearing.

493.6 Notice of hearing. (a) Where the Department has chosen not to provide the operator with a proposed statement of charges, or where there are charges which are not resolved by the parties, a notice of hearing must be served on the operator in person or by certified mail, return receipt requested, at least 30 days prior to the date of the hearing. When the Department initiates an action to assess civil penalties pursuant to section 486.5(b) of this Title for operating an adult care facility without a valid operating certificate brought against an operator whose identity is not known to the department, service may be made by posting a copy of the notice of hearing in a conspicuous place at the facility at least 30 days prior to the date of the hearing or by sending a copy of it by certified mail, return receipt requested, addressed to the facility and delivered at least 20 days prior to the date of the hearing.

(b) The notice of hearing must set forth the time and place for the hearing.

(c) In those cases where the department has provided the operator with a proposed statement of charges, if the department amends the proposed statement of charges, the notice of hearing must contain the amended statement of charges, which must comply with the requirements of sections 493.3(b) (1) and (2) and (c) of this Part. If the department does not amend the proposed statement of charges, the notice of hearing must contain a copy of the proposed statement of charges. In those cases where the department has not provided the operator with a proposed statement of charges, the notice of hearing must contain a statement of charges which comply with the requirements of sections 493.3(b) (1) and

(2) and (c) of this Part.

(d) Where an operator requests a hearing to challenge an order of the commissioner issued pursuant to section 460-d(8) of the Social Services Law, the notice of hearing must contain a general statement of the facts, and a citation to the statutes, rules and regulations upon which the order is based.

(e) The hearing notice also must inform the operator:

(1) of the requirement to file a written answer as set forth in section 493.7 of this Part;

(2) of the right to present written or oral evidence at the hearing;

(3) of the right to be represented by an attorney or other representative of the operator's choice;

(4) of the method by which adjournments may be requested;

(5) whether the operating certificate will remain in effect during the course of the hearing and pending the issuance of the hearing decision; and

(6) that the operator may raise issues and present evidence only on those matters included in the answer to the statement of charges.

 

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Section 493.7 - Answer.

493.7 Answer. (a) The operator must file a written answer to any factual allegation or point of law in the statement of charges which is contained in the notice of hearing, by either hand delivering the answer to the department's counsel's office in Albany during normal business hours, or mailing the answer, so that it is received by the department's counsel's office in Albany within the following time limits:

(1) The answer must be received by the department no less than five days before the scheduled hearing date in an action to assess a civil penalty against the operator of a facility who does not possess a valid operating certificate issued pursuant to section 460-d(9) of the Social Services Law.

(2) The answer must be received by the department no less than 10 days before the scheduled hearing date in an action to assess a civil penalty against the operator of a facility for failing to operate a facility in compliance with this Title or section 460-d(7) of the Social Services Law, or in an action to revoke, suspend or limit an operating certificate pursuant to section 460-d(4) (b) of the Social Services Law.

(3) The answer must be either hand-delivered or, if mailed, postmarked no less than 15 days before the scheduled hearing date in an action to review the denial of an application for, or renewal of, an operating certificate under section 493.2(c) of this Part, or in an action to modify an operating certificate pursuant to section 461-b(7) of the Social Services Law.

(b) The answer must:

(1) specifically admit or deny each charge. Any charge not specifically denied will be deemed admitted, and the operator will not be permitted to deny the charge at any later time;

(2) set forth with specificity the operator's position with respect to each charge which is denied. The operator must state the legal and factual basis for denying the charge, and must submit copies of all documents such as supporting letters, charts, graphs and photographs in support of the operator's position; and

(3) list the witnesses whom the operator intends to present and a statement indicating the substance of their anticipated testimony.

(c) If the operator fails to file an answer to the notice of hearing, the response to the proposed statement of charges filed pursuant to section 493.4 of this Part, if one has been filed, will be deemed to be the answer.

 

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Section 493.8 - Expedited hearings.

493.8 Expedited hearings. (a) Whenever the department finds that an operator is causing or failing to prevent a condition which constitutes a danger to the physical or mental health of the residents of a facility, and it appears contrary to the interests of the residents to delay action pending a hearing, the commissioner or the commissioner's designee may:

(1) order the operator, by written notice which sets forth the basis for such finding, to discontinue immediately such dangerous condition or activity or take certain action immediately or within a specified period of time, not to exceed 30 days, which will correct such condition or activity; or

(2) temporarily suspend the operating certificate and order the removal of all residents from the facility pending the issuance of a hearing decision under this Part.

(b) Within 30 days of the issuance of the order or notice of suspension, the commissioner will provide the operator an opportunity to be heard and to present proof in opposition to the order or suspension.

(c) The operator may file with the department a response to the charges contained in the order or notice of suspension and a request for a hearing. The response and hearing request must be in writing and must:

(1) specifically admit or deny each charge;

(2) set forth with particularity the operator's position with respect to each charge which is denied. The operator must state the legal and factual basis for denying the charge and must submit copies of all documents, such as letters, charts, graphs and photographs, in support of the operator's position; and

(3) list the witnesses whom the operator intends to present and a statement indicating the substance of their anticipated testimony.

 

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Section 493.9 - Who may be present at hearing; authorized representative.

493.9 Who may be present at hearing; authorized representative. (a) The operator, the operator's representative or representatives, the operator's counsel, counsel for or other representatives of the department, witnesses of both parties, any person who may be called by the hearing officer and any other person, including members of the media, may be present at the hearing. Upon his or her own motion, or upon the motion of either party, the hearing officer may exclude the general public, including members of the media. Such exclusion may only be made for compelling reasons, such as ensuring the orderly conduct of the hearing, and may only be made after the person or persons to be excluded have an opportunity to be heard. Upon his or her own motion, or upon the motion of either party, the hearing officer may exclude potential witnesses from the hearing during the testimony of other witnesses.

(b) An operator may be represented at a hearing by an attorney or by someone who is not an attorney if that individual has written authorization from the operator. The authorization must be submitted to the hearing officer and become part of the record.

 

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Section 493.10 - Conduct of hearing.

493.10 Conduct of hearing. (a) At the time and place set forth in the notice of hearing, the parties will advise the hearing officer which portions of the statement of charges remain in dispute.

(b) The hearing officer has the power to administer oaths, issue subpoenas, require the attendance of witnesses and the production of records, rule upon requests for adjournments, make evidentiary rulings, and otherwise preside over the hearing. The hearing officer must make an opening statement describing the proceedings, the issues to be decided and the manner in which the hearing will be conducted.

(c) The hearing officer must introduce into the record the statement of charges and its appendices; post office receipts verifying the receipt of all mailed documents, where applicable; and the answer, together with all appendices and accompanying documents.

(d) The department will be precluded from making any argument and asserting any charges not set forth in the statement of charges that has been sent to the operator with the notice of hearing. The operator will be precluded from raising issues and submitting any evidence not set forth in the answer. Each party may move for orders to preclude the other party from asserting arguments or charges, raising issues or submitting evidence as described within this division. However, the hearing officer may, in his or her discretion, permit either party to prove any matter not set forth in the statement of charges or in the answer. In exercising his or her discretion, the hearing officer will consider prejudice to either party, and whether the party attempting to prove the matter not set forth in the statement of charges or in the answer has demonstrated a good faith attempt to ascertain the matter beforehand, and whether such party informed the other party of the new matter as soon as it was aware of it. If the hearing officer allows a party to call a witness without prior notice to the other party, such other party will be permitted a reasonable time to prepare for cross-examination of that witness.

(e) The hearing officer may direct that the hearing continue or may designate future hearing dates and adjourn the hearing until such time. The hearing officer also may direct that the parties engage in further discussions, exchanges or negotiations to attempt to resolve outstanding issues.

(f) The parties to a hearing have the burden of establishing, by a preponderance of the evidence, the following:

(1) in an action to assess civil penalties against an operator, the department must establish that the violations upon which the civil penalties are based occurred and that the operator received written notice of the violations. Violations which are proven to have occurred are presumed to continue. If the operator raises an affirmative defense that the violations have been rectified, the operator must establish that the violations were rectified, as defined in section 486.5(a) of this Title, within 30 days of receiving the written notice of the violations. The operator may also raise, as an affirmative defense, that the operator had submitted to the department within 30 days of receiving such notice, an acceptable plan for rectification and monitoring and was rectifying the violations in accordance with the necessary corrective actions and within the periods of time as accepted by the department in such plan.

(2) in an action to assess civil penalties pursuant to section 486.5(b) of this Title for operating a facility without a valid operating certificate and to review an order to the operator to close the facility, the department must establish that the operator is providing or arranging for the provision of personal care or supervision to one or more unrelated, dependent adults or has held himself or herself out as providing such services and is providing at least room and board to one or more unrelated, dependent adults. In order to rebut the charge that the operator does not possess a valid operating certificate, the operator must establish that he or she possessed an operating certificate issued pursuant to article seven of the Social Services Law, article 28 of the Public Health Law, or article 16, 23 or 31 of the Mental Hygiene Law, within 30 days of being provided by the department with a written summary of the inspection by which the department determined that the operator is operating an uncertified facility, or that the operator transferred all unrelated dependent adults to appropriate facilities within 30 days of receiving such written summary.

(3) In an action to challenge the denial of an application for an operating certificate, the operator must establish that the operator meets all the statutory and regulatory requirements for obtaining the certificate, including that he or she has the requisite character and competence to obtain an operating certificate and that it was an abuse of discretion for the commissioner or the commissioner's designee not to grant the operating certificate.

(4) In an action to challenge the denial of an application to renew an operating certificate, the operator must establish that the operator meets all the statutory and regulatory requirements for obtaining renewal of the certificate including that he or she has the requisite character and competence to obtain a renewal of the operating certificate and that it was an abuse of discretion for the commissioner or the commissioner's designee not to renew the operating certificate.

(5) In an action to revoke, suspend or limit an operating certificate, the department must establish that the operator has failed to comply with the requirements of State or local laws or regulations applicable to the operation of the facility.

(6) In an action to challenge an order of the commissioner issued pursuant to section 460-d(8) of the Social Services Law, the operator must establish that the condition or activity which is the subject of the order does not constitute a danger to the physical or mental health of the residents.

(7) In an action to modify an operating certificate, the department must establish that the action would be in the public interest in order to conserve resources by restricting the number of beds, level of services or both to those which are actually needed.

(g) Evidence is admissible unless it is irrelevant, immaterial or unduly repetitious, or subject to exclusion as set forth in this section. Evidence may include but is not limited to: reports of inspection prepared by inspectors of the department or other governmental agencies; audiotaped or videotaped interviews with facility residents; photographs, charts and reports prepared by physicians of facility residents; and letters between the parties. Photocopies may be admitted into evidence in lieu of originals; however, originals of such documents must be made available for inspection at the direction of the hearing officer. The hearing officer must observe the rules of privilege recognized in law.

(h) All testimony must be affirmed or given under oath.

(i) The parties are entitled to be represented by an attorney or other representative of their choice with a written authorization, present witnesses, give any relevant and material evidence that is not unduly repetitious or excluded under this section, cross-examine witnesses, and examine any document or item offered into evidence.

(j) The hearing will be recorded verbatim, either electronically or stenographically.

(k) The hearing officer may adjourn the hearing on his or her own motion, upon consent of the parties or upon the motion of one party for good cause. Adjournments will not be routinely given, since hearing dates are considered to be dates certain. A party requesting an adjournment based upon the need of a party or its attorney to be in court must submit an affidavit of actual engagement setting forth the circumstances of such need to the hearing officer. A party requesting an adjournment based upon illness must submit medical documentation of such illness to the hearing officer. The request for the adjournment must specify the number of days needed.

 

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Section 493.11 - Remova1 of the hearing officer.

493.11 Remova1 of the hearing officer. A party to a hearing may make a request to a hearing officer that the hearing officer remove himself or herself from presiding at the hearing.

(a) The grounds for removing a hearing officer are that the hearing officer has:

(1) previously dealt in any way with the substance of the matter which is the subject of the hearing except in the capacity of hearing officer; or

(2) any interest in the matter, financial or otherwise, direct or indirect, which will impair the independent judgment of the hearing officer; or

(3) displayed bias or partiality to any party to the hearing.

(b) The hearing officer may independently determine to remove himself or herself from presiding at the hearing on the grounds set forth in subdivision (a) of this section.

(c) The request for removal made by a party must:

(1) be made in good faith;

(2) be made in writing or orally on the record; and

(3) describe in detail the grounds for requesting that the hearing officer be removed.

(d) Upon receipt of a request for removal, the hearing officer must determine on the record whether to remove himself or herself from presiding at the hearing.

(e) If the hearing officer determines not to remove himself or herself from presiding at the hearing, the hearing officer must advise the party requesting removal that the hearing will continue and the request for removal will automatically be reviewed by the general counsel of the department or the general counsel's designee.

(f) The determination of the hearing officer not to remove himself or herself must be reviewed by the general counsel or the general counsel's designee. Such review must include review of written documents submitted by the parties and the transcript of the hearing.

(g) The general counsel or the general counsel's designee must issue a written determination of whether the hearing officer should be removed from presiding at the hearing within 15 business days of the close of the hearing.

(h) The written determination of the general counsel or the general counsel's designee must be made a part of the record.

(i) If the hearing officer determines to remove himself or herself from presiding at the hearing, or if the general counsel or the general counsel's designee determines that the hearing officer should have removed himself or herself from presiding at the hearing, a new hearing, before a different hearing officer, will be scheduled to commence expeditiously.

 

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Section 493.12 - The record.

493.12 The record. (a) The record will include:

(1) all notices, pleadings and intermediate rulings;

(2) the transcript or recordings of the hearing;

(3) exhibits received into evidence;

(4) matters officially noticed; and

(5) the findings of fact, conclusions of law and recommended decision of the hearing officer.

(b) after the hearing has been concluded, the hearing officer must submit findings of fact, conclusions of law and a recommended decision to the commissioner or the commissioner's designee. Findings of fact must be based exclusively on the record of the hearing.

 

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Section 493.13 - Decision after hearing.

493.13 Decision after hearing. (a) The hearing decision must be issued by the commissioner or by the commissioner's designee and must be based exclusively on the record of the hearing. The decision must be in writing and must set forth the hearing issues, the relevant facts, and the pertinent provisions of law and department regulations, make appropriate findings, determine the issues, state reasons for the determination and, when appropriate, direct specific action.

(b) A copy of the decision will be sent to the operator and to the operator's representatives, if any.

(c) In the event the decision is adverse to the operator, a copy of the decision will be sent together with a notice of the right to judicial review in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

(d) The hearing decision will be issued as soon as practicable but in no event more than 90 days after the conclusion of the hearing.

 

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Section 493.14 - Examination of the record after hearing.

493.14 Examination of the record after hearing. Upon reasonable notice to the department, the hearing record may be examined at the department's offices in Albany during regular business hours.

 

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Part 494 - ASSISTED LIVING PROGRAM

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Statutory Authority: 
Social Services Law, Section461-l[5]

Section 494.1 - Applicability.

Section 494.1 Applicability. (a) This Part applies to assisted living programs as defined herein.

(b) Unless expressly provided otherwise in this Part, an assisted living program is subject to any other Federal, State and local laws, rules or regulations governing adult care facilities, long-term home health care programs, certified home health agencies, licensed home care agencies or personal care services.

(c) Notwithstanding the applicability of the requirements in Parts 485, 486, 487 and 488 of this Title, for the purposes of the assisted living program, the requirements of this Part supersede any conflicting or contradictory rule or regulation governing adult care facilities.

(d) The department and the Department of Health will periodically review the respective requirements of each agency for recordkeeping and reporting applicable to the operation of an assisted living program and will make coordinated efforts to eliminate or minimize inconsistent or duplicative requirements.

(e) This Part will not apply to any housing projects established pursuant to the Private Housing Finance Law, the Public Housing Law, the former Membership Corporations Law or the Not-for-Profit Corporation Law, except for those distinct programs operated by such projects which provide assisted living programs which are approved and certified by the department.

(f) Any person, partnership, corporation, organization, agency, government unit or other entity which operates an assisted living program is subject to the jurisdiction of the department, and must comply with this Part or cease operating such program.

 

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Section 494.2 - Definitions.

494.2 Definitions. (a) Assisted living program means an entity which is approved to operate pursuant to section 485.6(n) of this Title, and which is established and operated for the purpose of providing long-term residential care, room, board, housekeeping, personal care, supervision, and providing or arranging for home health services to five or more eligible adults unrelated to the operator.

(b) Capitated rate of payment means the rate established annually by the Commissioner of the Department of Health for services provided or arranged by the assisted living program in accordance with section 3614(6) of the Public Health Law.

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Section 494.3 - General provisions.

494.3 General provisions. (a) The operator of an assisted living program must provide, through its employees and agents, an organized, 24-hour-a-day program of supervision, care and services which:

(1) meets the standards set forth in this Part;

(2) assures the protection of resident rights; and

(3) promotes the social, physical and mental well-being of the residents.

(b) If an assisted living program is not a certified home health agency or long-term home health care program, the assisted living program must contract with a certified home health agency or long-term home health care program for the provision of nursing and therapy services. An assisted living program must contract with no more than one certified home health agency or long-term home health care program, provided, however, that the commissioner and the Commissioner of the Department of Health may approve additional contracts for good cause shown, which may include, but need not be limited to, satisfactory documentation that an additional contract or contracts are necessary in order to provide, as reasonably projected by the assisted living program, the volume of services, or the type of services, or where the assisted living program has been approved to operate at more than one site.

(c) The operator must document that the operator has entered into written agreement(s) with one or more nursing facilities for the transfer of eligible individuals no longer appropriate for continued residence in the assisted living program.

(d) The operator must operate and maintain the program in compliance with the regulations of the department and with applicable statutes and regulations of Federal, State and local jurisdictions.

(e) The operator must afford any officers or duly authorized employees or agents of the department or the Department of Health access at any time to the residents, grounds, buildings and any records relating to resident care and services.

(f) The operator must maintain, make available for inspection and submit such statistical, financial or other information, records or reports, relating to the facility as the department or the Department of Health may require.

(g) (1) Upon request by the operator, the department may waive nonstatutory requirements of this Part. An operator must request and receive written approval prior to operating in accordance with any waiver. Applications for a waiver must be submitted in writing to the appropriate regional office of the department and must include:

(i) the specific regulation for which a waiver is sought;

(ii) the reason the waiver is necessary; and

(iii) a description of what will be done to achieve or maintain the purpose of the regulation to be waived and to protect the health, safety and well-being of the residents.

(2) Before granting a waiver, the department may require that the operator make physical plant modifications or adopt special methods or procedures to protect resident health and safety and must grant written approval of a waiver request only after making a determination that the proposed waiver will not adversely affect the health, safety and wellbeing of the residents.

(3) Failure to adhere to the terms of the approved waiver will result in rescission of the approval and imposition of penalties for the applicable regulation.

 

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Section 494.4 - Admission and retention standards.

494.4 Admission and retention standards. (a) An operator must admit, retain and care for only those individuals who do not require services beyond those the operator is permitted by law and regulation to provide.

(b) An operator shall not exclude an individual on the sole basis that such individual is a person who primarily uses a wheelchair for mobility, and shall make reasonable accommodations to the extent necessary to admit such individuals, consistent with the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. and with the provisions of this section.

(c) Appropriate services must be provided to or arranged for an eligible individual only in accordance with a plan of care which is based upon an initial assessment and periodic reassessments conducted by an assisted living program, or if the assisted living program itself is not an approved long-term home health care program or certified home health agency, by an assisted living program and a long-term home health care program or certified home health agency.

(d) An assisted living program may care only for a person who:

(1) is medically eligible for, and would otherwise require placement in, a residential health care facility due to the lack of a home or a suitable home environment in which to live and safely receive services;

(2) requires more care and services to meet daily health or functional needs than can be provided directly by an adult care facility;

(3) exhibits a stable medical condition as categorized by the long-term care patient classification system as defined in Title 10 NYCRR;

(4) is able, with direction, to take action sufficient to assure selfpreservation in an emergency; and

(5) voluntarily chooses to participate in an assisted living program after being provided with sufficient information to make an informed choice.

(e) An operator must not accept nor retain any person who:

(1) requires continual nursing or medical care;

(2) is chronically bedfast and requires lifting equipment to transfer or the assistance of two persons to transfer; or

(3) is cognitively, physically or medically impaired to a degree which endangers the safety of the resident or other residents.

(f) Before an operator admits an individual to an assisted living program, a determination must be made that the assisted living program can support the physical, supervisory and psycho-social needs of the resident.

(g) The determination referred to in subdivision (e) of this section must be based on:

(1) a medical evaluation conducted within 30 days prior to the date of admission;

(2) an interview between the administrator or a designee responsible for admission and retention decisions and the resident and resident's representative(s), if any;

(3) a preassessment screening, a nursing assessment and an assessment of the individual's social and functional needs and an assessment of the ability of the program to meet those needs. These assessments will be conducted by the operator and, if required, by a certified home health agency or a long-term home health care program; and

(4) a mental health evaluation if a proposed resident has a known history of chronic mental disability, or if the medical evaluation or resident interview or any assessment suggests that such a disability exists. This evaluation will be conducted by a psychiatrist, physician, nurse, psychologist or social worker who has experience in the assessment and treatment of mental illness.

(h) A reassessment of the resident must be conducted no later than 45 days after the date of admission of the resident. In addition, reassessments must be conducted as frequently as required to respond to changes in the resident's condition and to ensure immediate access to necessary and appropriate services by the resident, but in no event less frequently than once every six months.

(i) Relationship to the medical assistance program (MA). (1) A contract must be executed between the assisted living program as an authorized home care provider and the social services district in which the assisted living program is operating. The contract must provide that the assisted living program will assume all responsibility for case management of all MA recipients in the assisted living program and include the following:

(i) the terms and conditions under which services will be provided;

(ii) the requirements for training and licensing of employees;

(iii) the maintenance of adequate records;

(iv) the observance of applicable confidentiality standards with respect to information concerning MA recipients;

(v) the conditions under which the contract will be amended;

(vi) the procedures for notification of MA applicants and recipients concerning their right to a fair hearing; and

(vii) the conditions under which the contract will be terminated, including the unavailability of continued Federal or State funding.

(2) When a social services district receives a request for an individual's participation in the assisted living program and a completed application for MA, the district must determine the applicant's eligibility for MA in accordance with Part 360 of this Title.

(3) A copy of the assessments for any MA recipient who is determined appropriate to participate in the assisted living program must be transmitted for review to the social services district which is financially responsible for the MA recipient.

(4) A reassessment of the MA recipient must be conducted in accordance with subdivision (c) of this section. Such reassessment must be reviewed by the social services district which is financially responsible for the MA recipient no later than 45 days after the date of admission of the MA recipient and, at a minimum, every six months thereafter.

(j) No person will be admitted to or retained in an assisted living program unless the assisted living program determines that the person can be safely and adequately cared for if the services identified as necessary by an assessment or reassessment are provided.

(k) For a resident who cannot be retained in an assisted living program because the resident does not meet the conditions set forth in subdivision (d) of this section:

(1) the operator must make persistent efforts to secure appropriate alternative placement and must document such efforts;

(2) persistent efforts are defined as:

(i) assisting the resident or resident's representative to file five applications for each such resident with appropriate facilities;

(ii) following up by telephone every two weeks on the status of the applications;

(iii) if an application is rejected, assisting the resident or resident's representative to file an application with another facility within five working days of the date of rejection; and

(iv) if the resident is not placed, notifying the appropriate regional office of the department in writing, every 90 days from the filing of the first application, of the name of the resident and any pending and rejected applications.

 

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Effective Date: 
Wednesday, November 21, 2018
Statutory Authority: 
Social Services Law, Sections 461 and 461-l(5)

Section 494.5 - Resident services.

494.5 Resident services. (a) The operator is responsible for providing or arranging for resident services which must include, at a minimum: room, board, housekeeping, supervision, personal care, case management activities and home health services.

(b) Services included in the medical assistance capitated rate are:

(1) personal care services which are reimbursable under title XIX of the Federal Social Security Act;

(2) home health aide services;

(3) personal emergency response services;

(4) nursing services;

(5) physical therapy;

(6) occupational therapy;

(7) speech therapy;

(8) medical supplies and equipment not requiring prior authorization; and

(9) adult day health care in a program approved by the Commissioner of Health.

 

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Section 494.6 - Personnel.

494.6 Personnel. (a) General requirements. (1) The operator must provide staff sufficient in number and qualified by training and experience to render, at a minimum, those services mandated by statute or regulation.

(2) The operator must designate an individual to be responsible for operating the program in compliance with applicable regulations and executing through direct performance or coordination, the services and functions specified in section 494.5 of this Part. The designated individual must, at a minimum, either:

(i) meet the applicable training and experience requirements for an approved adult home administrator or enriched housing coordinator; or

(ii) be an approved director of the home health care program.

(b) Case management. (1) The operator must designate sufficient staff to perform the case management function for assisted living program residents.

(2) In an assisted living program where the approved capacity is less than 50 beds, the facility administrator or the home care director may be designated to perform case management functions in lieu of a case manager provided that the facility administrator or the home care director meets the education and work experience requirements contained in paragraph (3) of this subdivision.

(3) The case manager must have the following education and work experience:

(i) be a currently registered professional nurse with one year of full-time experience; or

(ii) a master's degree in social work from an accredited college or university; or

(iii) a bachelor's degree from an accredited college or university with major work in human services or service delivery and one year of full-time experience in the provision of services to a dependent adult population; or

(iv) an associate degree from an accredited college or university with major work in human resources or service delivery and three years of full-time experience in the provision of services to a dependent adult population.

(c) Resident care. (1) The operator must maintain staffing at a level sufficient to accomplish the plan of care and assure resident health, safety and well-being, provided that at a minimum the staffing levels specified in section 487.9(f)(6) or 488.9(e)(2) of this Title are maintained.

(2) The operator must develop and submit to the department a plan to assure that all staff assigned to perform personal care functions are trained as required in section 505.14(d) and (e) of this Title or successfully complete a basic training program in home health aide services or an equivalent examination approved by the Department of Health.

 

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Section 494.7 - Environmental standards.

494.7 Environmental standards. (a) An operator of an assisted living program must comply with the following standards in addition to the applicable standards contained in sections 487.11 and 488.11 of this Title.

(b) Space must be provided for the administrative activities and records associated with the provision of home care services and to accommodate the care needs of residents.

(c) In a building used by an adult home or enriched housing program operator for an approved assisted living program where residents share all space other than bedrooms:

(1) A supervised smoke detection system, which is listed by an acceptable testing laboratory, must be installed in the following locations:

(i) in each corridor at least every 40 feet on center, or less if required by the manufacturer;

(ii) at the top of all stairways, elevators and hoistways and other unsealed shafts; and

(iii) in attics, basements and open floor areas designated for public or resident use, at least one detector for each 1,000 square feet of open or unpartitioned space.

(2) An automatic sprinkler system must be installed throughout the building.

(3) Smoke stops are required in all corridors 100 feet long.

(4) A centralized emergency call system must be installed in all resident bedrooms, toilet areas and bathing areas.

(d) The building used by an enriched housing program operator for an approved assisted living program must comply with standards specified in section 488.11(c)(1) or, if located in New York City, 488.11(c)(2) of this Title in addition to the standards specified elsewhere in this Part.

 

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Part 495 - QUALITY INCENTIVE PAYMENT PROGRAM

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Statutory Authority: 
Social Services Law Sections 20 (3)(d), 34 (3)(f), 460, 461

Section 495.1 - Applicability.

*Section 495.1 Applicability. This Part applies to operators of adult homes, enriched housing programs and residences for adults as defined in section 485.2 of this Title. *NB Effective until 97/06/04

 

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Section 495.2 - Definitions.

495.2 Definitions.

(a) Eligible applicant means an operator of an adult home, enriched housing program or residence for adults who has a valid operating certificate from the department and who is providing services to eligible residents in compliance with applicable statutes and regulations governing the operation of such facility.

(b) Eligible resident means an individual in receipt of Supplemental Security Income (SSI) or Home Relief (HR) benefits and who resides in an adult home, enriched housing program or residence for adults.

(c) Application means the process and forms for submitting prescribed data and information to the department in order to participate in the Quality Incentive Payment Program.

(d) Quality incentive payment program means a grant program whereby the department issues a payment to each eligible operator of an adult home, residence for adults or enriched housing program who is in compliance with applicable statutes and regulations. Such payment is based on the number of individuals in receipt of SSI or HR benefits residing in such a facility.

(e) Department means the New York State Department of Social Services.

(f) Operator means the certified operator of an adult home, enriched housing program or residence for adults. *NB Effective until 97/06/04

 

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Section 495.3 - General provisions.

495.3 General provisions.

(a) The department may, to the extent funds are appropriated for such purpose, enter into an agreement with each operator of an adult home, enriched housing program and residence for adults for the payment of quality incentive improvement grants to eligible applicants.

(b) An operator will be considered to be in compliance with applicable statutes and regulations for the purposes of this Part, if the operator has not received official written notice from the department of a proposed revocation, suspension, limitation or denial of the operating certificate; the proposed assessment of civil penalties; the issuance of either a department order or a commissioner's order; the seeking of equitable relief; the issuance by a court of competent jurisdiction of an order or approval of a settlement agreement which affirms that the rights afforded to a resident of an adult home, enriched housing program, or residence for adults have been violated; or the department has determined that the operator has failed to meet the requirements enumerated in section 460-d(7) (b) (2) of the Social Services Law.

(c) The department may, based on the conditions in the facility, the history of the operator in providing quality care, and the procedures specified in the notice of availability of funds for the Quality Incentive Payment Program either make or deny a quality incentive payment to an operator of an adult home, enriched housing program or residence for adults that would otherwise have been an eligible applicant except that he or she is not in compliance with applicable statutes and regulations.

(d) The amount of the quality incentive payment is based on the appropriated funds, the number of SSI and HR recipients residing in a facility, and a finding that the operator is in compliance with applicable statutes and regulations based on the most recent inspection cycle.

(e) Notwithstanding the provisions of subdivision (c) of this section, the department may not make a quality incentive payment to an operator not in compliance with applicable statutes and regulations unless the specified enforcement action has been resolved and a notice of resolution issued.

(f) It is the duty of an operator of an adult home, enriched housing program or residence for adults to notify the department within three working days after the issuance of a court order or a court approved settlement agreement referred to elsewhere in this Part, which has found that the rights of residents have been violated.

(g) The Quality Incentive Payment Program is a grant program. Nothing contained herein or in law creates or is deemed to create any right, interest of entitlement for any individual or other entity eligible to participate in the program.

(h) Quality Incentive Payment Program payments will be made for the purpose of improving the quality of care and services to eligible residents to better meet resident needs, improve the physical environment of a facility, correct identified deficiencies and encourage the provision of services to eligible residents.

(i) The quality incentive payment program grant may be used to pay for the following:

(1) staffing;

(2) training;

(3) furnishings;

(4) equipment;

(5) maintenance and repairs; or

(6) other purposes that will enhance the quality of care and services provided in the facility which benefit eligible residents.

(j) Prior to awarding such grants to a facility operator, the department must consider the reliability and capability of the operator, including his or her expertise, prior experience, financial responsibility and record of adherence to the law concerning the operation of adult homes, enriched housing programs and residences for adults. *NB Effective until 97/06/04

 

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Section 495.4 - Application procedures.

495.4 Application procedures.

(a) The department will notify all eligible operators of the availability of funds for the Quality Incentive Payment Program, and provide all eligible operators with the forms and information necessary to submit an application for such funds including the dates by which the facility must be in compliance with applicable statutes and regulations and by which applications must be submitted.

(b) Eligible applicants who wish to receive funds under the Quality Incentive Payment Program must apply for such funds in accordance with the standards and procedures established by the department, and must submit all required information upon forms and in a manner prescribed by the department.

(c) Applications determined to be incomplete, or submitted after the filing deadline established by the department, will not be considered for funding.

(d) The application must be signed by an individual legally authorized to enter into agreements on behalf of the operator of the adult home, enriched housing program or residence for adults.

(e) The department reserves the right in its sole discretion, to modify and/or withdraw requests for applications at any time. All applications are prepared at the sole risk, cost and expense of the applicant.

(f) Applications will be reviewed for completeness; applications which are not substantially complete will not be considered for funding.

(g) Applications will be evaluated based on criteria for funding contained in statute, the regulations governing this Part and adult care facilities and the criteria contained in the request for application issued by the department.

(h) The department will make final selections in its sole discretion and will advise successful and unsuccessful applicants of its decisions.

(i) Payments received by eligible operators under this program must be used to improve the quality of care and services provided to SSI or HR recipients residing in the facility.

(j) Documentation of quality incentive payment expenditures must be maintained. If an audit or inspection shows that any item of work for which a disbursement has been made under the Quality Incentive Payment Program was not completed in full compliance with the terms and conditions of the grant, the operator must, upon request of the department, repay such grant to the department. If the work is part of a plan of correction for a previously cited violation, the operator must correct the violation within the time frames approved by the department.

(k) The department reserves the right to negotiate any aspect of the payment and if negotiations fail to result in a satisfactory agreement, terminate negotiations or take such action as the department may deem appropriate. *NB Effective until 97/06/04

 

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