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 486 - Inspection And Enforcement › Section 486.5 - Civil penalties

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Civil penalties for certified adult care facilities.
(1) Civil penalties of up to $1,000 per day,
		    as specified in section
		    486.7  of this Part, may be
		    assessed against adult care facilities, except those operated by a social
		    services district, for violation of these regulations or of an order pursuant
		    to subdivision 8 of section 460-d  of the Social Services Law.
(2) Civil penalties shall be calculated from
		    receipt of the report of inspection, except that civil penalties assessed
		    pursuant to paragraph (4) of this subdivision may be calculated from the date
		    the violation occurs. The penalties shall cease to run on the date that
		    correction is made, subject to verification by the department.
(3) No penalty can be imposed, except as
		    provided in paragraph (4) of this subdivision, if at the time of a hearing, the
		    operator satisfactorily demonstrates that either (i) the violations have been
		    rectified within 30 days of receipt of the written report of inspection first
		    citing the violation, or (ii) an acceptable plan for rectification and
		    monitoring to ensure that violations do not recur had been submitted to the
		    department within 30 days of receipt of such written report of inspection and
		    the plan was being implemented in accordance with the procedures and time
		    frames approved by the department. A violation is not deemed rectified unless
		    an operator implements and maintains the necessary corrective actions. When the
		    department inspects a facility and finds one or more violations of this Title,
		    it must issue a report of inspection to the operator of that facility. This
		    report 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. If the violations require facility-wide
		    rectification, the operator must rectify all conditions which constitute a
		    violation of the cited regulation.
(4) Even where correction of a violation has
		    occurred in accordance with paragraph (3) of this subdivision, the department
		    may assess a penalty if it establishes at a hearing that the particular
		    violation endangered or resulted in harm to a resident as the result of:
(i) the total or substantial failure of the
		    facility's fire protection or prevention systems, or the emergency evacuation
		    procedures. Substantial failure will have occurred if more than half of the
		    individual sensor or alarm units required in paragraph (f)(1), (2), (3), (4),
		    or (16) of section
		    487.11  of this Title are
		    inoperative, of if more than half of the evacuation procedures required in
		    section 487.12(d)  of this
		    Title are not posted. Substantial failure will also have occurred for any
		    violation of paragraph (f)(6), (12) or (20) of section
		    487.11, or section
		    487.12(a), (f)(1) or
		    (g);
(ii) the retention of any resident who has
		    been evaluated by the resident's physician as requiring placement in a hospital
		    or residential health care facility and for whom the operator has not made and
		    documented persistent efforts to secure appropriate placement as required by
		    section 487.4(k)(2)  of
		    this Title;
(iii) the failure of
		    the operator to take actions in the event of a resident's illness, accident,
		    death or attempted suicide as required by sections
		    487.7(d)(6)(iii) 
		    (
a
)-(
b
),
		    (
d
)-(
e
), (8)-(9), 488.7(b)(6), (8), (9) and
		    490.7(d)(4)(iii)(
a
)-(
d
), (6)-(7) of this
		    Title;
(iv) the failure of the
		    operator to provide at all times supervision of residents by numbers of staff
		    at least equivalent to the staffing requirements required by section
		    487.9(f)(6)-(9) 
		    of this Title;
(v) the failure of
		    systemic practices and procedures as evidenced by a pattern of violations or an
		    inability to bring a specific area of facility operation into compliance with
		    section 487.4,
		    487.5,
		    487.6,
		    487.7,
		    487.8,
		    487.9(a)(1), (3), (7), (8), (10)-(15), (b)-(d),
		    (f), (g)(1),
		    487.10(a)-(b),
		    487.11,
		    487.12(b),
		    (g)-(j),
		    488.4,
		    488.5,
		    488.6,
		    488.7,
		    488.8,
		    488.9(a)(1), (2), (4), (5), (7)-(11),
		    (b)-(e),
		    488.10(a)-(b),
		    488.11,
		    488.12(b)-(c), (g)-(i),
		    (l),
		    490.4,
		    490.5,
		    490.6,
		    490.7,
		    490.8,
		    490.9(a)(1), (3), (5), (6), (8)-(13), (b)-(d),
		    (f),
		    490.10(a)-(b),
		    490.11,
		    490.12(b), or
		    (g)-(j) of this Title; or
(vi)
		    threats of retaliation or taking reprisals against a resident of an adult home,
		    residence for adults or enriched housing program, which constitute a violation
		    of section
		    487.5(a)(3)(xi),
		    488.5(a)(3)(i)
		 or 490.5(a)(3)(i)  of
		    this Title, including unreasonable threats of eviction or hospitalization
		    against a resident, employee or other person who makes a complaint concerning
		    the operation of an adult home, enriched housing program or residence for
		    adults, participates in the investigation of a complaint or is the subject of
		    an action identified in a complaint.
(5) If, however, the violation cited under
		    paragraph (4) of this subdivision was caused solely by an act of God, and the
		    operator took immediate action to correct it, the department shall not assess a
		    penalty under paragraph (4) of this subdivision for such violation.
(6) No civil penalty can be assessed without
		    a hearing held in accordance with the procedures established in Part 493 of
		    this Title.