2023 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 including infection control,
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.  Each  plan  must  also
include  the creation of a quality improvement committee that is charged
with  meeting  periodically,  at  least once every six months, to review
summary findings from monitoring implementation of the facility's  plan,
evaluating   the   effectiveness  of  corrective  action  policies,  and
identifying trends and improvement activities. While reviewing  facility
performance,  the  committee  shall  not examine personally identifiable
resident incidents. Such committee shall include  the  administrator  or
operator  of  the  facility,  the  resident  council  president or other
resident representative, and representatives  from  frontline  employees
from each area of operation.
(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.