§ 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.