§ 461-A — Responsibility for inspection and supervision

§ 461-a. Responsibility for inspection and supervision. 1. The\ndepartment shall be responsible for the inspection and supervision of\nall adult care facilities subject to the provisions of section four\nhundred sixty-c of this chapter; provided, however, that the department\nshall by a written cooperative agreement entered into by October first,\nnineteen hundred seventy-seven, develop a system of joint inspection\nwith the department of mental hygiene, with respect to any such facility\nproviding residential care to a significant number of mentally disabled\npersons.\n 2. (a) With respect to adult care facilities the department shall\nconduct a minimum of one unannounced inspection of each such facility to\ndetermine the adequacy of care being rendered, pursuant to the\nfollowing:\n (1) Such facilities receiving the department's highest rating shall be\ninspected at least once every eighteen months on an unannounced basis.\n (2) All other such facilities shall be inspected on an unannounced\nbasis no less than annually. The commissioner may provide for more\nfrequent inspections of any such facilities. Such inspection shall not\nbe required with respect to any facility for which the commissioner has\ndelegated responsibility for inspection and supervision to a social\nservices official pursuant to section four hundred sixty-c of this\nchapter. Any employee of the department or a social services district\nwho gives or causes to be given advance notice of such unannounced\ninspections to any unauthorized persons shall, in addition to any other\npenalty provided by law, be suspended by the department or the social\nservices district from all duties without pay for at least five days or\nfor such greater period of time as the department or social services\ndistrict shall determine. Any such suspension shall be made by the\ndepartment or social services district in accordance with all other\napplicable provisions of law.\n (b) The department or a social services district, where appropriate,\nshall each year conduct a minimum of one full inspection of each adult\ncare facility. Such inspection shall include, but shall not be limited\nto, examination of the medical, dietary and social services records of\nthe facility as well as the minimum standards of construction, life\nsafety standards, quality and adequacy of care, rights of residents,\npayments and all other areas of operation. The purpose of any inspection\nshall be to determine compliance with requirements of applicable\nprovisions of law and regulations of the department.\n (c) An inspection report shall be made of each inspection which shall\nclearly identify and indicate in detail each area of operation,\nincluding, but not limited to, the premises, equipment, personnel,\nresident care and services, and whether each such area of operation or\nany of its component parts is or is not in compliance with the\nregulations of the department and all other applicable requirements. It\nalso shall identify those areas of operation or any of its component\nparts found not in compliance as a result of failure in systemic\npractices and procedures. The operator shall be notified of the results\nof the inspection in a manner to be determined by regulations of the\ndepartment. Such notification shall contain directions as may be\nappropriate as to the manner and time in which compliance with\napplicable requirements of law or regulations of the department shall be\neffected. The department shall also require the operator of an adult\nhome or residence for adults to develop, biannually update and implement\nplans for quality assurance activities for each area of operation.\nQuality assurance activities include but are not limited to, development\nand maintenance of performance standards including infection control,\nmeasurement of adherence to such standards and to applicable state and\nlocal laws and regulations, identification of performance failures,\ndesign, and implementation of corrective action. Each plan must also\ninclude the creation of a quality improvement committee that is charged\nwith meeting periodically, at least once every six months, to review\nsummary findings from monitoring implementation of the facility's plan,\nevaluating the effectiveness of corrective action policies, and\nidentifying trends and improvement activities. While reviewing facility\nperformance, the committee shall not examine personally identifiable\nresident incidents. Such committee shall include the administrator or\noperator of the facility, the resident council president or other\nresident representative, and representatives from frontline employees\nfrom each area of operation.\n (d) Systemic practices or procedures are those activities related to\neach area of operation which indicate a pattern or an inability to bring\nthe operation of the facility into compliance with applicable provisions\nof laws and regulations.\n (e) Nothing contained in this subdivision shall limit or restrict the\nability of the department or social services district, where\nappropriate, to conduct more than one inspection of an adult care\nfacility, for whatever purpose, as is deemed necessary for ensuring\ncompliance with applicable provisions of law and regulations of the\ndepartment.\n 3. (a) Pursuant to regulations promulgated by the commissioner, in\nconsultation with the director of the state office for the aging, no\nfacility or individual shall restrict or prohibit the access to the\nfacility nor interfere with the performance of the official duties,\nincluding confidential visits with residents, of duly designated persons\nparticipating in the long term care ombudsman program as provided for in\nsection five hundred forty-five of the executive law. No facility or\nindividual shall retaliate or take reprisals against any resident,\nemployee, or other person for having filed a complaint with, or having\nprovided information to, any long term care patient ombudsman\nfunctioning in accordance with section five hundred forty-four or\nsection five hundred forty-five of the executive law.\n (b) In addition, no facility which provides residential care and\nservices for adults shall restrict or prohibit the access to the\nfacility nor interfere with confidential visits with residents by:\n (i) Family members, guardians, friends of an individual resident and\nlegal representatives, legal counsels and case managers;\n (ii) Individuals representing community organizations or service\nagencies who will provide, free of charge, a service or educational\nprogram to residents;\n (iii) An employee or representative of any public or private\nnot-for-profit corporation, community organization or association whose\nprimary purposes for visiting include assisting residents in resolving\nproblems and complaints concerning their care and treatment, and in\nsecuring adequate services to meet their needs. The operator shall make\navailable a common area of the facility for such visits.\n (c) The department shall establish and maintain a registry of public\nor private not-for-profit corporations, community organizations or\nassociations assured access to facilities which provide residential care\nand services for adults pursuant to subparagraph (iii) of paragraph (b)\nof this subdivision. Any such corporation, community organization or\nassociation shall file a copy of its certificate of incorporation with\nthe registry established and maintained by the department.\n (d) Persons assured access to a residential care facility for adults\npursuant to this subdivision shall not enter the living area of any\nresident without identifying themselves to the resident, stating the\npurpose of the visit, and receiving the permission of the resident and\nthe resident's roommate to enter the living area.\n (e) Individual residents shall have the right to terminate or deny any\nvisit to them by persons assured access to the facility pursuant to this\nsubdivision.\n (f) Visits by individuals assured access to facilities which provide\nresidential care and services for adults pursuant to subparagraphs (i),\n(ii) and (iii) of paragraph (b) of this subdivision shall be permitted\nduring a period of at least ten hours between 9:00 o'clock a.m. and 8:00\no'clock p.m. unless extended by arrangement with the facility.\n (g) Notwithstanding any provision of paragraph (b) of this\nsubdivision, the operator of a facility which provides residential care\nand services for adults may restrict or prohibit access to the facility\nor interfere with confidential visits with residents by individuals who\nthe operator has reasonable cause to believe would directly endanger the\nsafety of such residents.\n (h) Whenever an individual is denied access pursuant to paragraph (g)\nof this subdivision the operator must record a detailed written\nstatement describing the reasons for denial of access to any such\nindividual. This statement shall be maintained by the facility and be\naccessible to residents, persons denied access, and the department.\n (i) If the operator of a facility denies access pursuant to paragraph\n(g) of this subdivision, the person denied access may bring an action in\nsupreme court in the county in which the facility is located for an\norder granting such person access to such facility. If the court finds\nthat such denial was made in bad faith, the operator of the facility\nshall be liable for all costs, including reasonable attorney's fees, and\nthe court may, in its discretion, assess a civil penalty not to exceed\nfifty dollars per day for each day such access was denied.\n 4. Pursuant to regulations promulgated by the commissioner in\nconsultation with the director of the office for the aging, no facility\nshall restrict or prohibit access by records access ombudsmen specially\ndesignated under section five hundred forty-four of the executive law to\nthe medical or personal records of any patient or resident if such\npatient or resident, or, where appropriate, committee for an\nincompetent, has given express written consent to such disclosure;\nprovided, however, that (i) in the case of medical records, disclosure\nmay be exclusive of the personal notes of the physician as defined in\nsuch regulations and (ii) access may be limited to such times as may be\nspecified in such regulations. Such records shall be made available by a\nmember or members of the facility's staff who shall be designated by the\nfacility to provide access to and, where necessary, interpretation of\nsuch records to such access ombudsman, who shall have the right to\nphotocopy such records. The facility may charge a reasonable fee for\nphotocopying pursuant to such regulations. Disclosure to a records\naccess ombudsman of records of any patient or resident pursuant to the\nwritten consent of such patient or resident shall not give rise to any\nclaim against the facility, its staff, or the patient's or resident's\nphysician based solely on the fact of such disclosure pursuant to such\nwritten consent. Nothing in this subdivision shall be construed to limit\nor abridge any right of access to records, including financial records,\notherwise available to ombudsmen, patients or residents, or any other\nperson.\n