Current through Register Vol. 46, No. 39, September 25, 2024
(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 basis of an individual's mobility impairment, and shall make
reasonable accommodations to the extent necessary to admit such individuals,
consistent with federal, state, and local laws.
(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 wellbeing, 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) has chronic unmanaged
urinary or bowel incontinence;
(10)
suffers from a communicable disease or health condition which constitutes a
danger to other residents and staff;
(11) 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;
(12) engages
in alcohol or drug use which results in aggressive or destructive behavior;
or
(13) 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 80 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) Prior to any
prospective resident's admission to a transitional adult home, as defined in
subdivision (b) of section
487.13 of this Part, the operator
shall contact the Department, in a manner prescribed by the Department, to
obtain a pre-admission screening as to whether the prospective resident may be
a person with serious mental illness, as defined in subdivision (c) of section
487.2 of this Part.
(1) To obtain such pre-admission screening,
the operator shall, in a manner prescribed by the Department, provide the
Department with the prospective resident's full name, date of birth,
guardianship information if applicable, and Medicaid identification number if
applicable. For individuals who are not currently enrolled in Medicaid, the
operator shall state whether an interview and/or medical evaluation indicate
the need for a mental health evaluation pursuant to paragraph (3) of
subdivision (g) of this section. The results of the Department's pre-admission
screening shall be provided to the operator within three business days of
receipt of a complete request. A complete request is one that contains all of
the information required by this paragraph.
(2) The Department shall conduct its
pre-admission screening in consultation with the Office of Mental Health by
reviewing the prospective resident's Medicaid claims data for relevant Health
and Recovery Plan eligibility criteria, which may indicate that the prospective
resident is a person with serious mental illness.
(3) Possible pre-admission screening results:
(i) Where the Department's pre-admission
screening of the prospective resident does not indicate that the prospective
resident may be a person with serious mental illness or, in the case of a
prospective resident for whom recent Medicaid claims data is not available, the
operator has advised that an interview and/or medical evaluation do not
indicate the need for a mental health evaluation pursuant to paragraph (3) of
subdivision (g) of this section, the Department shall advise the operator that
it may admit the prospective resident within 30 days of receipt of the results,
provided that all other relevant admission criteria are met. In the event an
operator does not admit the prospective resident within 30 days of receipt of
the results of the Department's pre-admission screening, the operator must
obtain a new pre-admission screening pursuant to this subdivision.
(ii) Where the department's pre-admission
screening indicates that the prospective resident may be a person with serious
mental illness, the operator shall not admit the prospective resident without
conducting or obtaining a mental health evaluation, documented on a form
prescribed by the department and developed in consultation with the Office of
Mental Health, within 30 days prior to the date of admission, pursuant to
paragraph (1) of subdivision (k) of this section. The operator may admit the
prospective resident only when the mental health evaluation concludes the
individual:
(a) is not a person with serious
mental illness; or
(b) is a person
with serious mental illness, but the individual is a former resident of a
transitional adult home and the operator obtains a waiver approved by the
department pursuant to subdivision (g) of section 487.3 of this
Part.
(f) An operator shall not admit an individual
before a determination has been made that the facility program can support the
physical, psychological and social needs of the resident.
(g) 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.
(h) 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.
(i) 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. Such report shall be documented on a form prescribed by the Department
and developed in consultation with the Office of Mental Health and shall
include:
(1) the date of
examination;
(2) significant mental
health history and current conditions, including whether the resident or
prospective resident is a person with serious mental illness as defined in
section 487.2(c) of this
Part;
(3) a statement that the
resident's or prospective resident's mental health needs can be adequately met
in the facility and 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; and
(4) a statement that the person signing the
report has conducted a face-to-face examination of the resident or prospective
resident within 30 days prior to the date of admission or, for required annual
evaluations or evaluations conducted due a change in condition, within 30 days
of the report.
(j) 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.
(k) 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.
(l) The operator shall assist a
resident in obtaining any required evaluations.
(m) 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.
(n) 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.
(o) 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.
(p) 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.
(q) 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.
(r) 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.
(s) 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.
