New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter D - Adult-Care Facilities
Part 488 - Adult Care Facilities Standards For Enriched Housing
Section 488.5 - Resident protections
Universal Citation: 18 NY Comp Codes Rules and Regs ยง 488.5
Current through Register Vol. 46, No. 39, September 25, 2024
(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 posted in a conspicuous
location in a public area of the facility, provided to each resident at the
time of admission, and reviewed with the resident annually
thereafter.
(3) The following
rights and protections must be afforded by the operator to each resident. Each
resident has the right:
(i) to, at all times:
(a) receive courteous, fair and respectful
care and treatment;
(b) have their
dignity preserved;
(c) be free from
coercion and restraint; and
(d) 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 their own behalf or the behalf of other residents to the program coordinator
or staff, the Department of Health, 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
their own room and sleeping unit, and in treatment and in caring for personal
needs, with only appropriate staff having access;
(ix) to receive a written statement in the
form of an admission or residency agreement, as appropriate, 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 their own
financial and personal affairs, including the right to determine from whom
medical services are received, provided such services are within the provider's
scope of practice;
(xi) to select a
private room if one is available and affordable to the resident. Residents in
shared rooms shall be afforded a choice of roommates and operators shall take
all reasonable steps to accommodate a resident's expressed choice;
(xii) to decorate their room to taste and in
compliance with all applicable local and state fire and safety codes;
(xiii) to neither be restrained in any way
nor locked in a room at any time;
(xiv) to the extent the resident prefers, be
permitted to engage in activities outside the facility;
(xv) to control their own schedule and
activities and have access to reasonably available foods of preference at any
time;
(xvi) to not be coerced or
required to perform the work of staff members or contractual work for the
facility, but must be afforded the opportunity to seek employment, volunteer
and work in the greater community if he or she so chooses, and if the resident
performs work on behalf of the facility, to receive fair compensation from the
operator;
(xvii) to have security
for any personal possessions if stored by the operator;
(xviii) 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
(xix) to
object if the operator terminates the resident's admission or residency
agreement against the resident's will. The operator shall provide instructions
for formally making an objection if requested by the
resident.
(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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