NY Soc Serv L § 461-A (2021)
2021 New York Laws SOS - Social Services Article 7 - Residential Care Programs for Adults and Children Title 2 - Residential Programs for Adults 461-A - Responsibility for Inspection and Supervision.

§  461-a.  Responsibility  for  inspection  and  supervision.  1.  The department shall be responsible for the inspection  and  supervision  of all  adult  care  facilities  subject  to the provisions of section four hundred sixty-c of this chapter; provided, however, that the  department shall  by a written cooperative agreement entered into by October first, nineteen hundred seventy-seven, develop a  system  of  joint  inspection with the department of mental hygiene, with respect to any such facility providing  residential care to a significant number of mentally disabled persons.   2. (a) With respect to adult  care  facilities  the  department  shall conduct a minimum of one unannounced inspection of each such facility to determine  the    adequacy  of  care  being  rendered,  pursuant  to the following:  (1) Such facilities receiving the department's highest rating shall be inspected at least once every eighteen months on an unannounced basis.  (2) All other such facilities shall be  inspected  on  an  unannounced basis  no  less  than  annually.   The commissioner may provide for more frequent inspections of any such facilities. Such inspection  shall  not be  required with respect to any facility for which the commissioner has delegated responsibility for inspection  and  supervision  to  a  social services  official  pursuant  to  section  four  hundred sixty-c of this chapter.  Any employee of the department or a social  services  district who  gives  or  causes  to  be  given advance notice of such unannounced inspections to any unauthorized persons shall, in addition to any  other penalty  provided  by  law, be suspended by the department or the social services district from all duties without pay for at least five days  or for  such  greater  period  of time as the department or social services district shall determine.   Any such suspension shall  be  made  by  the department  or  social  services  district  in accordance with all other applicable provisions of law.  (b) The department or a 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 shall 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. The purpose of any inspection shall  be  to  determine  compliance  with  requirements  of  applicable provisions of law and regulations of the department.  (c)  An inspection report shall be made of each inspection which shall clearly  identify  and  indicate  in  detail  each  area  of  operation, including,  but  not  limited  to,  the  premises, equipment, personnel, resident care and services, and whether each such area of  operation  or any  of  its  component  parts  is  or  is  not  in  compliance with the regulations of the department and all other applicable requirements.  It also  shall  identify  those  areas of operation or any of its component parts found not in  compliance  as  a  result  of  failure  in  systemic practices  and procedures. The operator shall be notified of the results of the inspection in a manner to be determined  by  regulations  of  the department.  Such  notification  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.    The  department shall also require the operator of an adult home or residence for adults to develop, biannually update and implement plans for quality assurance  activities  for  each  area  of  operation. Quality assurance activities include but are not limited to, 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.  (d)  Systemic  practices or procedures are those activities related to each area of operation which indicate a pattern or an inability to bring the operation of the facility into compliance with applicable provisions of laws and regulations.  (e) Nothing contained in this subdivision shall limit or restrict  the ability   of   the   department   or  social  services  district,  where appropriate, to conduct more  than  one  inspection  of  an  adult  care facility,  for  whatever  purpose,  as  is deemed necessary for ensuring compliance with applicable provisions of  law  and  regulations  of  the department.   3.  (a)  Pursuant  to  regulations promulgated by the commissioner, in consultation with the director of the state office  for  the  aging,  no facility  or  individual  shall  restrict  or prohibit the access to the facility nor interfere with the  performance  of  the  official  duties, including confidential visits with residents, of duly designated persons participating in the long term care ombudsman program as provided for in section  five  hundred  forty-five  of the executive law. No facility or individual shall retaliate  or  take  reprisals  against  any  resident, employee,  or  other person for having filed a complaint with, or having provided  information  to,  any  long  term   care   patient   ombudsman functioning  in  accordance  with  section  five  hundred  forty-four or section five hundred forty-five of the executive law.  (b) In addition, no  facility  which  provides  residential  care  and services  for  adults  shall  restrict  or  prohibit  the  access to the facility nor interfere with confidential visits with residents by:  (i) Family members, guardians, friends of an individual  resident  and legal representatives, legal counsels and case managers;  (ii)  Individuals  representing  community  organizations  or  service agencies who will provide, free of  charge,  a  service  or  educational program to residents;  (iii)   An  employee  or  representative  of  any  public  or  private not-for-profit 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.  (c) The department shall establish and maintain a registry  of  public or  private  not-for-profit  corporations,  community  organizations  or associations assured access to facilities which provide residential care and services for adults pursuant to subparagraph (iii) of paragraph  (b) of  this  subdivision.  Any  such corporation, community organization or association shall file a copy of its certificate of  incorporation  with the registry established and maintained by the department.  (d)  Persons  assured access to a residential care facility for adults pursuant to this subdivision 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.  (e) Individual residents shall have the right to terminate or deny any visit to them by persons assured access to the facility pursuant to this subdivision.  (f)  Visits  by individuals assured access to facilities which provide residential care and services for adults pursuant to subparagraphs  (i), (ii)  and  (iii) of paragraph (b) of this subdivision shall be permitted during a period of at least ten hours between 9:00 o'clock a.m. and 8:00 o'clock p.m.  unless extended by arrangement with the facility.  (g)  Notwithstanding  any  provision  of   paragraph   (b)   of   this subdivision,  the operator of a facility which provides residential care and services for adults 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)  Whenever an individual is denied access pursuant to paragraph (g) of  this  subdivision  the  operator  must  record  a  detailed  written statement  describing  the  reasons  for  denial  of  access to any such individual. This statement shall be maintained by the  facility  and  be accessible to residents, persons denied access, and the department.  (i)  If the operator of a facility denies access pursuant to paragraph (g) of this subdivision, 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 fifty dollars per day for each day such access was denied.   4.  Pursuant  to  regulations  promulgated  by  the  commissioner   in consultation  with the director of the office for the aging, no facility shall restrict or prohibit access by records access ombudsmen  specially designated under section five hundred forty-four of the executive law to the  medical  or  personal  records  of  any patient or resident if such patient  or  resident,  or,  where   appropriate,   committee   for   an incompetent,  has  given  express  written  consent  to such disclosure; provided, however, that (i) in the case of medical  records,  disclosure may  be  exclusive  of the personal notes of the physician as defined in such regulations and (ii) access may be limited to such times as may  be specified in such regulations. Such records shall be made available by a member or members of the facility's staff who shall be designated by the facility  to  provide  access to and, where necessary, interpretation of such records to such access ombudsman,  who  shall  have  the  right  to photocopy  such  records.  The  facility may charge a reasonable fee for photocopying pursuant to  such  regulations.  Disclosure  to  a  records access  ombudsman  of records of any patient or resident pursuant to the written consent of such patient or resident shall not give rise  to  any claim  against  the  facility, its staff, or the patient's or resident's physician based solely on the fact of such disclosure pursuant  to  such written consent. Nothing in this subdivision shall be construed to limit or  abridge any right of access to records, including financial records, otherwise available to ombudsmen, patients or residents,  or  any  other person.