N.Y. Social Services Law § 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.