Title: Section 487.5 - Resident protections

Effective Date

02/10/2016

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. 

Volume

VOLUME B-1 (Title 18)

up