Title: Section 486.5 - Civil penalties

Effective Date

10/26/2005

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.

Volume

VOLUME B-1 (Title 18)

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