N.Y. Comp. Codes R. & Regs. tit. 18 § 490.5

Current through Register Vol. 46, No. 43, October 23, 2024

Section 490.5 - Resident protections

(a) Resident rights.

(1) Each operator must adopt a statement of rights and responsibilities of residents and treat each resident in accordance 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 upon admission, and reviewed with the resident annually thereafter.

(3) The operator of a residence for adults must afford each resident 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 neglected in any manner;

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

(iii) to have private written and verbal communications or visits with anyone of his/her 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 administrator or facility 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 facility to work for improvement 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 the resident and appropriate staff having access;

(ix) to receive a written admission or residency agreement, detailing the services regularly provided by the facility operator, those additional services which will be provided if the resident needs or asks for them 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 choice of roommates and the operator shall make all reasonable efforts to accommodate such 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 be permitted to engage in activities outside the facility to the degree the resident prefers;

(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 the resident must be afforded the opportunity to seek employment 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 of the facility;

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

(xviii) to have recorded on the facility's accident or Incident Report the resident's version of the events leading up to the accident or incident;

(xix) to object if the operator terminates the 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) Resident organizations.

(1) The operator must encourage and assist residents to organize and maintain committees, councils, or such other self-governing body as the residents may choose.

(2) The operator must:

(i) assure that the residents' organization:

(a) meets as often as the membership deems necessary;

(b) is chaired and directed by the residents; and

(c) may meet with any member of the supervisory staff, provided that reasonable notice of the request is given to such staff;

(ii) appoint a staff person to act as an advisor to the residents' organization, who will serve as a liaison between the organization and administration to report all problems, issues and suggestions discussed by the residents which require administrative action; and

(iii) assure that any complaints, problems or issues reported by the residents' organization to the designated staff person or administration be addressed, and that a written report addressing the problems, issues or suggestions be sent to the organization.

(c) Grievances and recommendations.

(1) The operator must develop written procedures and must establish and maintain a system to receive and respond to grievances and recommendations for change or improvement in facility operations and programs which are presented by residents.

(2) The system must include:

(i) identification of staff to whom grievances and recommendations may be made;

(ii) procedures to submit grievances and recommendations which also include a procedure for confidential treatment of grievances and recommendations if requested;

(iii) procedures for evaluation and the initiation of action or resolution which are timely and protect the rights of those involved; and

(iv) procedures for informing residents of action and resolution.

(3) The operator must post the procedures for the submission of grievances and recommendations, including the identity of staff to whom the grievances and recommendations may be addressed.

(d) Admission agreements.

(1)

(i) 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 must constitute the entire agreement of the parties and must contain at least the provisions required by paragraph (6) of this subdivision.

(ii) 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.

(2) The operator must comply with all provisions of the admission agreement.

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

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

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

(6) The admission agreement must, at a minimum:

(i) state the effective date of the agreement;

(ii) state the due dates for payment;

(iii) enumerate the services, material, equipment and food required by law or regulation;

(iv) state the basic monthly, weekly or daily payment for services, material, equipment and food required by law or regulation;

(v) enumerate in detail a schedule of any other service, material, 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 charges for such supplemental services and supplies;

(vi) guarantee that charges for such supplemental services and supplies will be made only at the resident's option and only for services and supplies actually provided to the resident;

(vii) detail 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 conditions are limited to:

(a) the express written approval and authority of the resident or legal representative; or

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

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

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

(ix) guarantee that neither the operator, administrator nor any employee or agent of the facility will accept any remuneration, or gratuity in any form for any service provided or arranged for as specified by statute, regulation or admission agreement;

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

(xi) state 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 personal funds for incidental use in a facility-maintained resident account, and a statement to indicate resident and representative payee acceptance or rejection of this offer;

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

(xiii) state 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) state the terms and conditions under which the resident or operator may terminate the occupancy, and further;

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

(xvi) detail 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, specifying the grounds for termination and date of discharge and advising that the resident has the right to object to, and contest, 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) provide for a prorated refund of advance payments based on the rate, the actual days of residency, room reservation and the terms for notice;

(xviii) 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 allowance 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) state that the resident agrees to provide the operator, prior to admission and at least every 12 months thereafter, a dated and signed medical evaluation, and if required, a mental health evaluation, which conforms to the requirements of section 490.4(f) or (g) of this Part;

(xx) state that the resident agrees to obey all reasonable rules of the facility and to respect the rights and property of other residents; and

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

(e) An operator may 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 facility.

(f) Termination of admission agreements.

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

(2) Voluntary and mutual termination of the admission agreement. When notice of termination has been given by the operator and the resident leaves voluntarily, it is not necessary for the operator to commence a court proceeding pursuant to paragraph (16) 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 which the residence for adults cannot provide.

(ii) the resident's behavior poses an imminent risk of death or imminent risk of serious physical harm to the resident or anyone else;

(iii) the resident fails to make timely payment of 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;

(iv) 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 facility;

(v) the facility has had its operating certificate limited, revoked or temporarily suspended or the operator has voluntarily surrendered the operating certificate of the facility to the department; or

(vi) 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 facility to other facilities or is making other provision for the residents' 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 will be considered evidence of assistance on the part of the operator.

(5) In order to terminate the admission agreement of a resident and discharge him/her from the facility, the operator 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, 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 facility while the operator commences a court proceeding, and 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 facility. Such lists must be provided or approved by the department and must include names, addresses and telephone numbers of such agencies.

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

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

(i) when a resident develops a communicable disease, medical or mental condition, 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;

(ii) in the event that a resident's behavior poses an imminent risk of death or of serious physical harm to himself/herself or others, the operator must arrange for transfer of the individual to an appropriate and safe location.

(10) In the event that a resident's behavior poses an imminent risk of death or serious physical harm to himself/herself or others, 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.

(11) When the basis for a transfer no longer exists, and the resident is deemed appropriate for placement in the facility, the operator must readmit the resident, as long as the involuntary termination proceedings have not been completed.

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

(13) 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, then notice must be given by any of the methods provided by law for personal service upon a natural person (pursuant to section 308, Civil Practice Law and Rules).

(14) 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 facility 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.

(15) Except as described in paragraph (14) of this subdivision, a receiver must adhere to the requirements of this subdivision in any instance when termination of an admission agreement is not directly related to the closure of a facility.

(16) 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 the 30 days the resident remains in the facility, the operator must institute a special proceeding pursuant to section 461-h of the Social Services Law prior to termination and discharge.

(17) While legal action is in progress, the operator may 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.

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

(19) 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 a care setting which is adequate, appropriate and consistent with his/her wishes.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 490.5

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