N.Y. Comp. Codes R. & Regs. tit. 18 § 490.4

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

Section 490.4 - Admission and retention standards

(a) An operator may admit, retain and care for only those individuals who do not require services beyond those the operator is permitted by law and regulation to provide.

(b) An operator shall not exclude an individual on the basis of an individual's mobility impairment, and shall make reasonable accommodations to the extent necessary to admit such individuals, consistent with federal, state, and local laws.

(c) An operator must not accept or retain any person who:

(1) is in need of continual medical or nursing care or supervision as provided by facilities licensed pursuant to article 28 of the Public Health Law or licensed or operated pursuant to articles 19, 23, 29 and 31 of the Mental Hygiene Law;

(2) suffers from a serious and persistent mental disability sufficient to warrant placement in a residential treatment facility licensed or operated pursuant to articles 19, 23, 29 or 31 of the Mental Hygiene Law;

(3) requires health or mental health services which are not available or cannot be provided safely and effectively by local social services agencies or providers;

(4) causes, or is likely to cause, danger to himself/herself or others;

(5) repeatedly behaves in a manner which directly impairs the wellbeing, care, or safety of the resident or other residents or which substantially interferes with the orderly operation of the facility;

(6) has a medical condition which requires continual skilled observation of symptoms or reactions to medications or accurate recording of such skilled observations for the purpose of reporting to the resident's physician;

(7) refuses or is unable to comply with a prescribed treatment program, including but not limited to a prescribed medications regimen, when such refusal or inability causes, or, in the judgment of a physician, is likely to cause life-threatening danger to the resident or others;

(8) requires more than supervision and assistance with self-administration of medications in order to maintain a prescribed medication regimen;

(9) chronically requires physical assistance with the personal activities of daily living, including grooming, bathing, dressing, toileting, or eating;

(10) is chronically bedfast;

(11) has chronic unmanaged urinary or bowel incontinence;

(12) suffers from a communicable disease or health condition which constitutes a danger to other residents and staff;

(13) is dependent on medical equipment unless it has been demonstrated that:

(i) the equipment presents no safety hazard;

(ii) use of the equipment does not restrict the individual to his/her room, impede the individual in the event of evacuation, or inhibit participation in the routine activities of the facility;

(iii) use of the equipment does not restrict or impede the activities of other residents;

(iv) the individual is able to use and maintain the equipment with only intermittent or occasional assistance from medical personnel, and such assistance is available from local social service agencies or approved community resources; and

(v) each required medical evaluation attests to the individual's ability to use and maintain the equipment;

(14) engages in alcohol or drug use which results in aggressive or destructive behavior;

(15) is under 18 years of age; or under 16 years of age if such person is to be admitted to a residence for adults operated by a social services district.

(d) In accordance with a plan submitted by the operator and approved by the department, persons who require physical assistance with the personal care activities of daily living may remain in a residence for adults if the facility was previously certified as an adult home, and for so long as they remain appropriate for adult home care and the operator can demonstrate continued provision of needed services.

(e) An operator may not admit or retain a number of persons in excess of the capacity specified on the operating certificate.

(f) An operator may not admit an individual before a determination has been made that the facility program can support the physical, supervisory, and psychosocial needs of the individual. Such a determination must be based upon:

(1) receipt and consideration of a medical evaluation;

(2) receipt and consideration of a mental health evaluation;

(3) performance of a screening and an assessment; and

(4) conduct of a personal resident interview between the administrator or a designee responsible for admission and retention decisions and the resident and the resident's representative, if any.

(g) Each medical evaluation (DSS-3122 or an approved substitute) must be a written and signed report from a physician which includes:

(1) the date of examination, significant medical history and current conditions, known allergies, the prescribed medication regimen, including information on the applicant's ability to self-administer medications, recommendations for diet, exercise, recreation, frequency of medical examinations and assistance needed in the activities of daily living;

(2) a statement that the resident is not medically or mentally unsuited for care in the facility;

(3) a statement that the resident does not require placement in a hospital, residential health care facility, or an adult home; and

(4) a statement that the physician has physically examined the resident within 30 days prior to the date of admission or, for a required annual evaluation, within 30 days prior to the date of the report.

(h) Each mental health evaluation must consist of a written report which includes:

(1) significant mental health history and current conditions;

(2) the current mental health services provided, if any;

(3) a statement that the resident is not mentally unsuited for care in the facility;

(4) a statement that the resident does not evidence need for placement in a residential treatment facility licensed or operated pursuant to article 19, 23, 29 or 31 of the Mental Hygiene Law;

(5) documentation that the person responsible for providing the information is a psychiatrist, physician, registered nurse, certified psychologist or certified social worker and has conducted a face-to-face evaluation of the resident within 30 days prior to the date of admission to the facility or, for required annual evaluations, within 30 days prior to the date of the report; and

(6) [Reserved]

(7) the name, signature, professional title, and certification number of the person who conducted the mental health evaluation.

(i) Each resident screening and assessment must:

(1) evaluate the supervisory, case management and other services which are available in the facility and the community and how those services will be utilized to meet the:

(i) supervision needs of the resident;

(ii) physical needs of the resident, including dietary needs occasioned by cultural or religious practice or preference or medical prescription; and

(iii) socialization needs of the resident through facility programs which foster and maintain family, facility, and community ties and associations;

(2) be summarized in writing, including the date of the screening and assessment, and a statement addressing whether the resident was determined to be appropriate for admission and retention.

(j) Each resident interview must:

(1) be conducted within 30 days prior to admission to the facility;

(2) include an explanation of the admission agreement, resident rights and responsibilities, facility rules and regulations and the personal allowance protections available to Supplemental Security Income (SSI) or Home Relief (HR) recipients; and

(3) be summarized in writing, including the date of the resident interview and identification of those present.

(k) Resident screenings and assessments, resident interviews, medical evaluations and mental health evaluations, if required, must be conducted:

(1) within 30 days prior to the date of admission to the facility; and

(2) whenever a change in a resident's condition warrants but no less than once every 12 months.

(l) The operator must assist a resident to obtain any required evaluations.

(m) For any resident who cannot be retained under the conditions set forth in subdivision (c) of this section:

(1) the operator must make persistent efforts to secure appropriate alternative placements and must document such efforts;

(2) persistent efforts are defined as:

(i) assisting the resident or resident's representative with filing five applications for each such resident with appropriate facilities;

(ii) following up by telephone every two weeks on the status of the applications;

(iii) if an application in rejected the operator shall assist the resident or resident's representative in filing an application to another facility within five working days of the date of rejection; and

(iv) if the resident is not placed, the operator must notify the regional office in writing, every 90 days from the filing of the first application, of the name of the resident and any pending and rejected applications.

(n) Notwithstanding subdivisions (f), (g) and (k) of this section, medical evaluations are not required of a competent adult who relies upon or is being furnished treatment by spiritual means through prayer, in lieu of medical treatment, in accordance with the tenets and practices of a recognized church or religious denomination of which the resident is a member or bona fide adherent. In such cases the operator must:

(1) obtain documentation of the resident's standing as a member; and,

(2) adhere to the admission and retention standards set forth in subdivision (c) of this section.

(o) An individual service plan must be completed for each resident within 30 days of admission to the facility, and must be reviewed and revised as necessary thereafter, but no less frequently than every 12 months. Each individual service plan must:

(1) be a written report prepared, signed, and dated by the facility's administrator or case manager;

(2) evaluate the resident's ability to function in the facility and need for supervision and services to:

(i) perform the personal activities of daily living, including personal hygiene, bathing, dressing, grooming, and toileting;

(ii) perform activities of daily living, including self-administration of medication, care of personal effects and clothing, light housekeeping, meal preparation, shopping, and use of available transportation;

(iii) manage personal, financial and legal affairs;

(iv) engage in social and interpersonal activities;

(v) use community services and resources; and

(vi) find and keep employment or participate in training or education.

(3) specify resident goals;

(4) specify the supervisory, case management and other services which are available in the facility and the community, how these services will be utilized to assist the resident in attaining the resident's goals, and how the facility will:

(i) meet the supervision needs of the resident;

(ii) meet the physical needs of the resident, including dietary needs occasioned by cultural or religious practice or preference or medical prescription; and

(iii) meet the socialization needs of the resident through facility programs which foster and maintain family, facility, and community ties and associations.

(p) The operator may not admit or accept for return an individual directly from a general or special hospital, psychiatric center, developmental center, skilled nursing or health related facility without a statement from the referral source which details significant medical conditions, prescribed health or mental health regimens and such psychosocial information as may be available to help the operator plan an adequate level of care for the resident. This statement may substitute for the medical or mental health evaluation required by this Part if the requirements of subdivision (g) or (h) of this section are met.

(q) In a facility with a significant number of mentally disabled persons, the mental health organization or agency with which the operator has executed the agreement required by section 490.7(b) of this Part must be afforded reasonable opportunity to participate in the admission or retention assessment of persons who require a mental health evaluation or who would be eligible for the mental health organization's services by reason of residency in the residence for adults. Such participation must be solely for the purpose of assisting the operator to determine if the operator and available mental health services can meet the needs of the resident.

(r) An applicant must receive at or prior to the admission interview:

(1) a copy of the admission agreement;

(2) a copy of the statement of resident rights;

(3) a copy of any facility regulations relating to resident activities, office and visiting hours and like information; and

(4) a listing of legal services or advocacy agencies made available by the department, and as described in section 490.5(f)(7) of this Part.

(s) Each applicant for admission must have the opportunity to review a copy of the most recent inspection report issued by the department to the facility.

(t) If the applicant or resident is sight-impaired or hearing-impaired or otherwise unable to comprehend English or printed matter, the operator must arrange for conducting the interview and transmitting the contents of the admission agreement, the statement of rights and responsibilities and facility information in a manner comprehensible to the applicant.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 490.4

Amended New York State Register May 15, 2019/Volume XLI, Issue 20, eff. 5/15/2019

Amended New York State Register February 22, 2023/Volume XLIV, Issue 08, eff. 2/22/2023