N.Y. Comp. Codes R. & Regs. tit. 18 § 488.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 488.5 - Resident protections

(a)Residents rights.

(1) Each operator must adopt a statement of rights and responsibilities of residents and treat each resident in accord with the principles contained in the statement.

(2) A copy of the statement of rights issued by the department must be posted in a conspicuous location in a public area of the facility, provided to each resident at the time of admission, and reviewed with the resident annually thereafter.

(3) The following rights and protections must be afforded by the operator to each resident. Each resident has the right:

(i) to, at all times:

(a) receive courteous, fair and respectful care and treatment;

(b) have their dignity preserved;

(c) be free from coercion and restraint; and

(d) not be physically, mentally or emotionally abused, or subject to any occurrence which would constitute a reportable incident;

(ii) to exercise his/her civil rights and religious liberties, and to make personal decisions, including choice of physician, and to have the assistance and encouragement of the operator in exercising these rights and liberties;

(iii) to have private written and verbal communications or visits with anyone of the resident's choice, or to deny or end such communications or visits;

(iv) to send and receive mail or any correspondence unopened and without interception or interference;

(v) to present grievances or recommendations on their own behalf or the behalf of other residents to the program coordinator or staff, the Department of Health, other government officials, or any other parties without fear of reprisal or punishment;

(vi) to join other residents or individuals inside or outside the enriched housing program to work for improvements in resident care;

(vii) to confidential treatment of personal, social, financial and health records;

(viii) to have privacy in their own room and sleeping unit, and in treatment and in caring for personal needs, with only appropriate staff having access;

(ix) to receive a written statement in the form of an admission or residency agreement, as appropriate, of the services regularly provided by the operator, those additional services which will be provided if needed or requested and the charges (if any) of these additional services;

(x) to manage their own financial and personal affairs, including the right to determine from whom medical services are received, provided such services are within the provider's scope of practice;

(xi) to select a private room if one is available and affordable to the resident. Residents in shared rooms shall be afforded a choice of roommates and operators shall take all reasonable steps to accommodate a resident's expressed choice;

(xii) to decorate their room to taste and in compliance with all applicable local and state fire and safety codes;

(xiii) to neither be restrained in any way nor locked in a room at any time;

(xiv) to the extent the resident prefers, be permitted to engage in activities outside the facility;

(xv) to control their own schedule and activities and have access to reasonably available foods of preference at any time;

(xvi) to not be coerced or required to perform the work of staff members or contractual work for the facility, but must be afforded the opportunity to seek employment, volunteer and work in the greater community if he or she so chooses, and if the resident performs work on behalf of the facility, to receive fair compensation from the operator;

(xvii) to have security for any personal possessions if stored by the operator;

(xviii) to have recorded on the program's accident or incident report the resident's version of the events leading to the accident or incident; and

(xix) to object if the operator terminates the resident's admission or residency agreement against the resident's will. The operator shall provide instructions for formally making an objection if requested by the resident.

(b)Grievances and recommendations.

(1) The operator must:

(i) establish and maintain a system to receive and respond to grievances and recommendations for changes and improvements in the operation of an enriched program which are presented by residents; and

(ii) assist and enable residents to participate in planning for changes or improvements in enriched housing program operations and programs.

(iii) the operator of a facility subject to the Justice Center shall post the procedures for the submission of grievances and recommendations, including the identity of staff to whom the grievances and recommendations may be addressed. The operator of a facility subject to the Justice Center shall also ensure that the telephone number for the Justice Center's hotline for the reporting of reportable incidents is conspicuously displayed in areas accessible to residents, staff, volunteers, and contractors.

(2) The system referenced by paragraph (1) of this subdivision must include procedures for:

(i) confidential submission of grievances and recommendations, including identification of staff to whom grievances and recommendations may be made;

(ii) evaluation and the timely initiation of action or resolution which will protect the rights of those involved; and

(iii) informing residents of actions taken and resolutions of the grievances or recommendations.

(c)Admission agreements.

(1) Each operator must execute with, and provide to, each resident at or prior to admission and periodically thereafter as changes necessitate, a written admission agreement, which constitutes the entire agreement of the parties and must contain at least the provisions required by paragraph (7) of this subdivision.

(2) The admission agreement must be dated and signed by the operator, the resident and, if appropriate, another person acting as an agent for the resident.

(3) The operator and resident must comply with all provisions of the admission agreement.

(4) Any modification or provision of the agreement which is not in compliance with law or regulation is null and void.

(5) Any waiver by the resident of any provision of the admission agreement required by law or regulation is null and void.

(6) The admission agreement must be printed in legible, easily-read type.

(7) The admission agreement must contain, at a minimum:

(i) the effective date of the agreement;

(ii) the due dates for payment;

(iii) a list of the services, material, equipment and food required by law or regulation to be provided to a resident;

(iv) the basic monthly, weekly or daily payment for services, material, equipment and food required by law or regulation to be provided to a resident;

(v) a detailed schedule of any other services, materials, equipment and food which the operator agrees to furnish and supply to the residents during the period of the admission agreement. Such schedule must include the basis for the charges for such supplemental services and supplies;

(vi) a guarantee that charges for supplemental services and supplies provided pursuant to subparagraph (v) of this paragraph must be made only at the resident's option and only for services and supplies actually provided to the resident;

(vii) the conditions and procedures under which the operator may adjust the basic monthly, weekly or daily rate or charges for supplemental services and supplies. Such adjustments may occur only:

(a) upon the express written approval and authority of the resident or his/her legal representative, if any; or

(b) in the event of an emergency which affects a resident, and then only if such additional charges are reasonable and necessary for services, material, equipment and food furnished and supplied to the resident during such emergency; or

(c) as a result of the provision of additional care, services or supplies, upon the express order of the primary physician of the resident; or

(d) upon the provision of 30 days written notice to the resident and his/her representative, if any, of additional charges and expenses due to increased cost of maintenance and operation;

(viii) the actual rate charged the resident and accepted by the operator in satisfaction of the admission agreement;

(ix) a statement that neither the operator, program coordinator nor any employee or agent of the enriched housing program can accept any remuneration, or gratuity in any form for any services provided or arranged for as specified by statute, regulation or admission agreement;

(x) a list of any and all money, property or things of value given or promised to be given to the operator on admission or at any time, including any agreements made by third parties for payments for the benefit of a resident;

(xi) a statement that the operator offers to each resident who is a recipient of Supplemental Security Income (SSI) or Home Relief (HR) or representative payee, an opportunity to place funds for incidental use in an enriched housing program maintained resident account, and a statement to indicate resident and representative payee acceptance or rejection of this offer;

(xii) a statement that a signator other than the resident, who does not choose to place the resident's personal allowance funds in an enriched housing program maintained account, will comply with the Supplemental Security Income or Home Relief personal allowance requirement;

(xiii) the charge(s), which may not exceed the basic rate, to be levied for reserving a residential space in the event of temporary absence of the resident, and the length of time the reservation will apply;

(xiv) the terms, conditions and the time frames under which the resident or operator may terminate the occupancy;

(xv) the grounds under which the operator may terminate the admission agreement without the consent of the resident;

(xvi) the operator's obligation to:

(a) provide at least 30 days written notice to the resident, the resident's next of kin, and the person designated in the admission agreement as the responsible party, when the admission agreement is to be terminated, specifying the grounds for termination and date of discharge and advising that the resident has the right to object to, and contest, an involuntary termination;

(b) provide a list of free local legal services and advocacy resources, including the local social services district; and

(c) obtain prior court approval if the resident objects to the involuntary termination;

(xvii) provisions for a prorated refund of advance payments based on the rate, the actual days of residency, room reservation and the terms for notice;

(xviii) a guarantee that upon termination of the admission agreement, the resident or the resident's representative will receive a final written statement of his or her payment account and personal account and immediately receive any monies, property or things of value held in trust or in custody by the operator or which come into possession of the operator after discharge or transfer;

(xix) a statement that the resident agrees to provide the operator, prior to admission and at least every 12 months thereafter, a dated and signed medical evaluation which conforms to the requirements of section 488.4(d)(1)(i)-(iv) of this Part;

(xx) a statement that the resident agrees to inform the operator of changes in health status or medications, as they occur;

(xxi) a statement that the resident agrees to obey all reasonable rules of the enriched housing program and to respect the rights and property of the other residents; and

(xxii) a statement that waiver by a resident of any provision of the admission agreement is null and void.

(d) An operator must not enter into any contract or agreement with the resident or the resident's next of kin or sponsor for life care of the resident in the enriched housing program.

(e)Termination of admission agreements.

(1) Every resident has the right to terminate his/her admission agreement.

(2) Where notice of termination has been given by the operator and the resident leaves voluntarily, it is not necessary for the operator to commence a special proceeding pursuant to paragraph (15) of this subdivision.

(3) No operator may terminate an admission agreement and involuntarily discharge a resident except for the following reasons:

(i) the resident requires continual medical or nursing care;

(ii) the resident requires services or supervision that cannot be provided or arranged for by the operator;

(iii) the resident's behavior poses imminent risk of death or imminent risk of serious physical harm to himself/herself or anyone else;

(iv) the resident fails to make timely payment for all authorized charges, expenses, and other assessments, if any, for services including use and occupancy of the premises, materials, equipment and food which the resident has agreed to pay pursuant to the resident's admission agreement;

(v) the resident repeatedly behaves in a manner that directly impairs the well-being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the enriched housing program;

(vi) the enriched housing program has had its operating certificate limited, revoked or temporarily suspended or the operator has voluntarily surrendered the operating certificate of the enriched housing program to the department; or

(vii) a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law and is providing for the orderly transfer of all residents in the enriched housing program to other facilities or is making other provision for the resident's continued safety and care.

(4) If failure to make timely payment resulted from an interruption in the receipt by the resident of any public benefits to which he/she is entitled, no admission agreement may be involuntarily terminated unless the operator, during the 30-day notice period, assists the resident in obtaining such benefits, or any other available supplemental public benefits. Documented failure of the resident to cooperate with such efforts by the operator is considered evidence of assistance.

(5) In order to terminate the admission agreement of a resident and discharge him/her from the enriched housing program, the operator of an enriched housing program must give at least 30 days written notice, on a form prescribed by the department, to:

(i) the resident;

(ii) the resident's next of kin, if known; and

(iii) any person designated in the admission agreement as the responsible party other than next of kin, if any.

(6) The termination notice must indicate:

(i) the reason for termination;

(ii) the date of termination;

(iii) that the resident has the right to object to the termination of the agreement and the subsequent discharge; and

(iv) that if the resident does object, he/she may remain in the enriched housing program while the operator commences a special proceeding pursuant to paragraph (15) of this subdivision only until such time that the court finds in favor of the operator.

(7) In addition to the prescribed termination notice, the operator must furnish to the resident a list of agencies, including the Long-Term Care Ombudsman Program, which provide free legal services, and agencies engaged in resident advocacy services within the geographic vicinity of the enriched housing program. Such lists must be provided or approved by the department and must include names, addresses and telephone numbers of the advocacy program.

(8) A copy of the termination notice must be filed by the operator with the appropriate regional office of the department within five days after the notice is served upon the resident.

(9) Transfer of a resident may be arranged without 30 days notice under the following circumstances:

(i) when a resident develops a communicable disease, medical or mental conditions, or sustains an injury such that continual skilled medical and nursing services are required, arrangements must be made by the operator for appropriate professional evaluation and transfer to an appropriate facility; and

(ii) in the event that a resident's behavior poses an imminent risk of death or imminent risk of serious physical harm to himself/herself or others, the operator must arrange for transfer of the individual to an appropriate and safe location; in the event that a resident's behavior poses an imminent risk of death or serious physical harm to himself/herself or any other person, the operator should, whenever possible, seek the assistance of a peace officer, acting pursuant to the officer's special duties, or a police officer who is a member of an authorized police department or force or a sheriff's department, in transferring the resident to a safe location.

(10) When the basis for a transfer no longer exists, and the resident is deemed appropriate for placement in the enriched housing program, the operator must re-admit the resident, as long as the involuntary termination proceedings have not been completed.

(11) Transfer of a resident without notice of termination is not deemed a termination of the admission agreement. Such transfer does not relieve the operator from the requirement of proceeding, subsequent to the removal of the resident, to terminate the admission agreement.

(12) When the operator proceeds to terminate the admission agreement of a resident transferred without notice of termination, the operator must arrange for the written notice to be hand-delivered to the resident at the location to which he/she has been removed. If such hand-delivery is not possible, the notice must be given by any of the methods provided by law for personal service upon a natural person (section 308, Civil Practice Law and Rules).

(13) When a receiver has been appointed pursuant to the provisions of section 461-f of the Social Services Law and is providing for the orderly transfer of all residents in the enriched housing program to other facilities or is making other provisions for the residents' continued safety and care, the receiver may terminate admission agreements and arrange for the transfer of all residents to appropriate settings without regard to the notice and court review requirements of this subdivision.

(14) Except as described in paragraph (11) of this subdivision, a receiver must adhere to the requirements of this subdivision in any instance where termination of an admission agreement is not directly related to the closure of an enriched housing program.

(15) If the resident indicates to the operator within 30 days of receipt of notice that he/she objects to the termination of the agreement or if at the end of 30 days the resident remains in the enriched housing program, the operator must institute a special proceeding pursuant to section 461-h of the Social Services Law prior to termination and discharge.

(16) While legal action is in progress, the operator must not:

(i) seek to amend the admission agreement in effect as of the date of the notice of termination;

(ii) fail to provide any of the care and services required by department regulations and the admission agreement; or

(iii) engage in any action to intimidate or harass the resident.

(17) Both the resident and the operator are free to seek any judicial relief to which they may be entitled.

(18) The operator must assist any resident proposed to be transferred or discharged pursuant to this subdivision to the extent necessary to assure, whenever practicable, the resident's placement in care settings which are adequate, appropriate and consistent with the resident's wishes.

(19) In the event that an enriched housing resident holds a separate lease for the apartment he/she occupies, termination of the admission agreement does not constitute termination of the lease.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 488.5

Amended New York State Register February 10, 2016/Volume XXXVIII, Issue 06, eff. 2/10/2016

Amended New York State Register November 15, 2023/Volume XLV, Issue 46, eff. 11/15/2023