N.Y. Comp. Codes R. & Regs. tit. 18 § 487.9

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

Section 487.9 - Personnel

(a)General requirements.

(1) The operator shall provide staff sufficient in number and qualified by training and experience to render, at a minimum, those services mandated by statute or regulation.

(2) In a facility with a resident census in excess of 200 persons, a significant number of mentally disabled persons or a population with special needs, the department may require additional staff or specially qualified staff. Such requirements shall be based upon the number of residents, resident needs, physical layout and location of the facility.

(3) The operator shall conduct an initial program of orientation and in-service training for employees and volunteers, which includes:

(i) orientation to the characteristics and needs of the population;

(ii) discussion of the residents' rights and the facility's rules and regulations for residents;

(iii) discussion of the duties and responsibilities of all staff;

(iv) discussion of the general duties and responsibilities of the individual(s) being trained;

(v) discussion relative to the specific duties and tasks to be performed;

(vi) training in emergency procedures; and

(vii) with respect to facilities subject to the Justice Center, training in the identification of reportable incidents, facility reporting procedures and, if the employee is a mandated reporter under section 488 of the Social Services Law or otherwise required to report under section 424-a of the Social Services Law, such person's responsibility to file reports under those provisions;

(viii) with respect to facilities subject to the Justice Center, provision of a copy of the code of conduct established by the Justice Center pursuant to section 554 of the Executive Law. Such code of conduct shall be provided at the time of initial employment, and at least annually thereafter during the term of employment. Receipt of the code of conduct must be acknowledged, and the recipient must further acknowledge that he or she has read and understands such code of conduct. Any other individuals, including contractors or other service providers who will or could have resident contact, and falling within the definition of custodian under section 488 of the Social Services Law, must also be provided with, and acknowledge receipt and understanding of, such code of conduct.

(4) The operator shall conduct ongoing in-service training, and shall provide opportunities for employees and volunteers to participate in work-related training provided by the operator or others.

(5) The operator shall maintain documentation of the orientation and training sessions, including date, time, topic and names of persons conducting and attending.

(6) The operator shall develop and maintain current written staffing schedules. Past staffing schedules shall be retained for 12 months.

(7) The operator shall maintain personnel records which include:

(i) individual employee records containing verification of qualifications for any position for which qualifications are set by regulation, medical evaluation, and any incident reports involving the employee;

(ii) payment records containing all wages, benefits, reimbursements, bonuses, gifts or payments given each employee;

(iii) with respect to facilities subject to the Justice Center, documentation that the facility has verified, through consultation with the Justice Center, prior to hiring the employee, volunteer, or contractor falling within the definition of custodian in section 488 of the Social Services Law, whether the individual is on the Justice Center's register of substantiated category one cases of abuse or neglect as established pursuant to section 495 of the Social Services Law (staff exclusion list) and, where such individual is not on such list, documentation that the facility has verified whether the individual is on the Office of Children and Family Services' Statewide Central Registry of Child Abuse and Maltreatment (State Central Registry); and

(iv) prior to hiring or otherwise engaging anyone who will or may have direct contact with residents, or approving credentials for any such person, the operator of a facility subject to the Justice Center shall follow the procedures established by the Justice Center in regulations or policy, to verify that such person is not on the Justice Center's staff exclusion list. If such person is not on the Justice Center's staff exclusion list, such operator shall also consult the State Central Registry as required by section 424-a of the Social Services Law. If such person is on the staff exclusion list, a facility subject to the Justice Center shall not hire or otherwise engage such person; if such person is not on the staff exclusion list but is on the State Central Registry, a facility subject to the Justice Center shall consider the inclusion of such person on the State Central Registry as a factor in its decision, but shall not be prohibited from hiring or otherwise engaging such person.

(8) At the time of employment and at least every 12 months thereafter, or more frequently if needed, an employee must provide the operator with a statement from a physician, or, with physician oversight, a physician's assistant (PA) or a registered professional nurse (RN) with special training in primary health care who has physically examined the individual, that:

(i) the individual is free from any health impairment which is of potential risk to residents of an adult home or which might interfere with the performance of the individual's duties; and

(ii) that the individual has had:

(a) an initial individual tuberculosis (TB) risk assessment, symptom evaluation, and TB test (either tuberculin skin test or blood assay approved by the Food and Drug Administration for the detection of latent tuberculosis infection) prior to employment and subsequent annual assessments after employment begins; positive findings shall require appropriate clinical follow-up. The operator shall develop and implement policies regarding positive findings, including procedures for facilitating and documenting treatment for latent TB infection where indicated. The annual TB assessments shall include education, individual risk assessment, and follow-up tests as indicated; and

(b) any test that may be required by the local board of health.

(9) Notwithstanding paragraph (8) of this subdivision, physical examinations need not be required for an applicant or an employee 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 employee is a member or bona fide adherent. In such cases the operator shall require documentation of the employee's standing as a member.

(10) No individual who is suffering from a degree of mental illness or habituation or addiction to alcohol or other drugs such that the individual causes, or is likely to cause, danger to himself or others or is unable to perform his/her assigned duties, shall be employed or permitted to work as either an employee or volunteer.

(11) No individual shall be permitted to work, either as an employee or volunteer, if infected with a communicable disease that might endanger the health of residents.

(12) Each individual shall:

(i) be emotionally, mentally and physically able, as required by function, to provide services and supervision to the population served by the facility; and

(ii) maintain personal hygiene and clothing which is clean and appropriate for the functions performed.

(13) Employees who have direct contact with residents shall be able to speak, read and write English, and speak the predominant language of residents.

(14) No person under 18 years of age shall:

(i) be charged with direct responsibility for the supervision and personal care of residents; or

(ii) be permitted to work without onsite supervision.

(15) At least one individual currently qualified by a recognized organization to administer basic first aid shall be on duty and onsite at all times.

(16) The operator must inform the appropriate regional office by telephone or in writing within three business days of a vacancy in the position of administrator, case manager, activities director, dietary consultant or health consultant.

(17) Prior to hiring or otherwise engaging any employee, volunteer or others falling within the definition of custodian under section 488 of the Social Services Law which will or may have direct contact with residents, the operator of a facility subject to the Justice Center shall consult with the Justice Center for the Protection of People with Special Needs, to verify that such person is not on the Justice Center's register of substantiated category one cases of abuse or neglect as established pursuant to section 495 of the Social Services Law (staff exclusion list).

(18) Repealed

(b)Resident employment and volunteer work.

(1) Use of residents as volunteers shall be permitted only to the extent that such voluntary services are:

(i) entered into without use of coercion or threats to the resident;

(ii) not substituted for services of paid employees as required elsewhere in this Part; and

(iii) not inconsistent with the physical or emotional needs or limitations of the resident.

(2) Employment of residents shall be permitted only to the extent that such employment:

(i) is entered into without use of coercion or threats to the resident;

(ii) is performed in return for fair compensation; and

(iii) meets all applicable requirements of Federal and State Labor Law.

(3) The operator shall maintain written records which document each instance in which a resident elects to perform routine paid or volunteer services, including:

(i) the name of each resident performing paid or volunteer services;

(ii) the tasks performed;

(iii) the rate, type and amount of compensation, if any; and

(iv) the hours and days worked.

(c)Administration.

(1) The operator shall employ an administrator, or act in his own stead if qualified. The administrator shall be directly accountable to the operator for operating and maintaining the facility in compliance with applicable requirements.

(2) A person shall not be designated as administrator without prior written approval of the department. Such approval shall be based upon a review of the qualifications set forth in paragraph (9) of this subdivision and demonstrated knowledge of regulation of adult homes as evidenced by previous satisfactory experience or examination by the department.

(3) Approval of an administrator may be withdrawn and civil penalties may be imposed if the department finds, upon inspection and enforcement, that the administrator is unable or unwilling to carry out any of the responsibilities set forth in paragraph (8) of this subdivision.

(4) In facilities with a certified capacity of 25 or more beds, a qualified administrator shall be employed and on duty during the day at least 40 hours per week.

(5) In facilities with a certified capacity of 24 beds or less, a qualified administrator shall be employed and on duty during the day for a minimum of 20 hours per week.

(6) In a facility with 24 or less beds, the administrator, in addition to being designated as case manager and activities director, may perform personal care, food service, housekeeping or other required functions for up to 10 hours of the required 20-hour minimum.

(7) In a multilevel health care facility, the administrator of the residential health care facility may be approved as the administrator of the adult home. Such approval will be granted if the following conditions are met:

(i) The administrator must be a licensed nursing home administrator, and must be in the adult home and accessible to residents at least eight hours each week.

(ii) The operator must provide a satisfactory written plan for supervision of the adult care facility, which includes:

(a) a description of the system by which supervision of the facility will be exercised;

(b) designation of an assistant administrator; and

(c) a profile of the education and experience qualifications of the proposed assistant administrator.

(iii) The minimum hourly requirements for the combined on-duty presence of the administrator and assistant administrator shall be equal to those required in paragraphs (4) and (5) of this subdivision.

(8) The administrator shall be capable of and responsible for:

(i) supervision of the facility;

(ii) operation of the facility in compliance with law and regulations;

(iii) recruitment and general supervision of staff and volunteers;

(iv) supervision of resident services;

(v) admission, transfer and discharge of residents;

(vi) coordination with and development of community activities and services for residents;

(vii) maintenance of community relations;

(viii) protection of residents' rights and development of appropriate mechanisms for their protection;

(ix) maintenance of a system to enable residents to present grievances or recommendations regarding facility operations and programs; and

(x) investigation of and reporting to the department allegations of occurrences which would constitute a reportable incident.

(9) An administrator shall:

(i) be at least 21 years of age;

(ii) be of good moral character, as evidenced by at least three recent letters of recommendation from individuals knowledgeable of the proposed administrator's background, qualifications and interest in the field of adult care;

(iii) in a facility with a capacity of 24 beds or less, have the following education and work experience:

(a) a high school diploma or equivalency certificate, plus three years of related work experience acceptable to the department, one year of which includes related supervisory experience; or

(b) an associate degree from an accredited college or university in an approved course of study, plus two years of related work experience acceptable to the department, one year of which includes related supervisory experience; or

(c) a bachelor's degree from an accredited college or university in an approved course of study, plus one year of related supervisory experience acceptable to the department.

(iv) in a facility with a capacity of 25 to 90 beds, have the following education and other experience:

(a) a high school diploma or equivalency certificate, plus four years of related work experience acceptable to the department, two years of which include related supervisory experience; or

(b) an associate degree from an accredited college or university in an approved course of study, plus three years of related work experience acceptable to the department, one year of which includes related supervisory experience; or

(c) a bachelor's degree from an accredited college or university in an approved course of study, plus two years of related work experience acceptable to the department, one year of which includes related supervisory experience.

(v) in a facility with a capacity of 90 beds or more, have the following education and other experience:

(a) a high school diploma or equivalency certificate, plus five years of related work experience acceptable to the department, two years of which include related supervisory experience; or

(b) an associate degree from an accredited college or university in an approved course of study, plus three years of related work experience acceptable to the department, two years of which include related supervisory experience; or

(c) a bachelor's degree from an accredited college or university in an approved course of study, plus two years of related supervisory experience acceptable to the department.

(10) One year in full-time attendance in an approved course of study at an accredited college may be substituted for each year of work experience, other than required supervisory experience.

(11) Approved courses of study may include, but need not be limited to, human services for dependent adults, health care management programs, social work programs, hotel management, home economics, business management.

(12) Related work experience may include, but need not be limited to, work in residential care, rehabilitation, health care management, social work and hotel management.

(13) Related supervisory experience may include, but need not be limited to, work in a setting described in paragraph (12) of this subdivision where the individual had responsibility for the recruitment and supervision of staff and the coordination and management of related program activities.

(14) An administrator appointed prior to October 1, 1978 is exempt from the minimum employment and education requirements specified in subparagraphs (iii), (iv) and (v) of paragraph (9) of this subdivision while employed at the same facility or another facility within the same or a smaller size group.

(15) An administrator shall participate in a program of continuing education which shall:

(i) consist of a minimum of 60 clock hours over a two-year period;

(ii) require the prior approval of the department;

(iii) include courses, workshops, educational seminars, conferences or college-level programs which are directly related to the fields of administration, supervision, program planning and services, human behavior, geriatrics, care of the mentally and physically disabled, social work, health care, financial management or nutrition; and

(iv) include, for the administrator of a facility with a significant number of mentally disabled residents, at least 15 hours of programming related to the care and treatment of the mentally disabled.

(16) Continuing education credits will not be required of an administrator holding a valid, current New York State license as a nursing home administrator.

(17) If an administrator has a post-baccalaureate degree in an approved course of study, a minimum of 30 clock hours for each two-year period shall be accepted for the three two-year cycles following award of the degree.

(18) Continuing education courses approved by the department and attended by the case manager or activities director shall be accepted for a maximum of 20 of the 60 clock hours required.

(19) In the absence of the administrator, a responsible person shall be designated to be in charge of the facility and shall be so identified on the facility staffing schedule. The person designated shall:

(i) be at least 18 years of age;

(ii) be mentally and physically capable of carrying out the duties of an administrator;

(iii) be knowledgeable of facility operations;

(iv) have access to records concerned with facility operations;

(v) be empowered to act on behalf of the operator during the administrator's absence concerning the health, safety, comfort and well-being of the residents; and

(vi) have had training to carry out assignments and take care of emergencies and sudden illnesses of residents.

(d)Case management.

(1) Each operator shall designate sufficient staff to perform case management functions.

(i) In facilities with less than 50 beds, the administrator may be designated in lieu of a qualified case manager.

(ii) In facilities with 50 or more beds, a qualified case manager shall be on staff and on duty on a pro rata basis for 0.5 hour per week per each additional bed, up to 40 hours per week.

(iii) In a facility where the administrator is acting as case manager, the operator must designate an employee in addition to the administrator to be a designated investigator and reporter of occurrences which would constitute a reportable incident. Nothing in this subparagraph shall relieve any mandated reporter of his or her legal obligations to report reportable incidents.

(2) A person may not be designated as case manager without the prior written approval of the department.

(3) A case manager shall be capable of, and responsible for, executing, through direct performance and coordination:

(i) the services and functions set forth in section 487.7(g) of this Part; and

(ii) investigation of and reporting to the department and, as applicable, to the Justice Center, allegations of occurrences which would constitute a reportable incident.

(4) A case manager shall have the following education and work experience:

(i) a bachelor's or master's degree from an accredited college or university with major work in human resources or service delivery, and one year of full-time experience in the provision of services to a dependent adult population; or

(ii) an associate degree from an accredited college or university with major work in human resources or service delivery, and three years of full-time experience in the provision of services to a dependent adult population.

(5) A case manager employed in a facility prior to September 1, 1984 may be exempt from the requirements of paragraph (4) of this subdivision if he/she has a minimum of one year of experience in the provision of services to a dependent adult population.

(e)Activities.

(1) Each operator shall designate staff to perform the activities services function.

(i) In facilities with less than 50 beds, the administrator may be designated in lieu of a qualified activities director;

(ii) In facilities with 50 or more beds, a qualified activities director shall be on staff and on duty on a pro rata basis for 0.5 hour per week per each additional bed, up to 40 hours per week.

(2) An activities director shall be capable of and responsible for executing, through direct performance and coordination, the services and functions stipulated in section 487.7(h) of this Part.

(3) An activities director shall have, at a minimum, the following education or work experience:

(i) an associate degree from an accredited college or university, or satisfactory completion of two years of college; in either case with major work in recreation or a related field; or

(ii) two years of full-time experience in the recreation field with a dependent, adult population.

(4) An activities director must have minimum educational qualifications of an associate's degree from an accredited college or university or satisfactory completion of two years of college with major work in recreation unless the facility receives the prior written approval of the department.

(f)Supervision.

(1) Each operator shall designate sufficient staff to perform supervision functions during all hours of operation.

(2) Staff shall be immediately accessible at all times while on duty.

(3) Provision shall be made for backup staff.

(4) During the day and evening, staff responsible for direct resident services, i.e., the administrator, case management, activities or personal care services staff, may be designated to perform resident supervision services.

(5) Night staff may be assigned personal care or other duties which do not interfere with their accessibility, provided that such staff remain responsible and available for supervision services.

(6) The minimum number of staff required for resident supervision shall be determined by resident census. The following number of staff shall be on duty and on site 24 hours a day.

Resident census	Staff required
1-40	1
41-80	2
81-150	3
151-200	4

(7) An additional staff person shall be required for each additional 60 residents or part thereof.

(8) The department may require additional staff based on resident needs, physical layout and the location of the facility.

(9) If local codes require a night watchman, that position shall not be counted as part of the minimum number of staff required for resident supervision.

(g)Personal care.

(1) An operator shall assign sufficient staff to perform personal care functions on a 24-hour basis.

(2) The operator shall assign a minimum of 3.75 hours of personal services staff time per week per resident, such hours to be distributed throughout the day and evening shifts.

(3) With prior written approval from the department, an operator may allocate a percentage of the required personal care hours to the night shift. Such approval shall be based on a demonstration that personal care tasks are performed during the night shift and the personal care needs of residents are met during the remainder of the day.

(4)

(i) The operator shall develop and submit to the department, for approval, an inservice training plan for personal care staff which includes a plan for training new employees and an ongoing, in-service program for all personal care staff.

(ii) The ongoing, in-service program for all personal care staff shall be developed on a 12-month schedule, amended as necessary, and retained on file for department inspection.

(iii) Records documenting training shall be maintained for each personal care employee.

(5) All new employees or current employees being newly assigned to perform personal care tasks shall complete training within three months of the date of employment or assignment.

(h)Housekeeping.

The operator shall assign a minimum of 1.0 staff hour per week per resident for the purpose of housekeeping.

(i) The operator shall provide staff sufficient in number and skill to comply with the maintenance requirements set forth in section 487.11(k) of this Part.

(j)Food service.

(1) The operator shall assign a minimum of 2.0 hours of food service staff per week per resident. In no case shall weekly staff hours assigned to food service be less than 35. The staff requirements apply to a central kitchen and no more than two separate dining areas; other systems of food preparation and service may necessitate a requirement by the department for different staffing.

(2) A food service manager shall be designated and identified on the staffing schedule.

(3) A qualified dietitian or dietetic technician shall be retained by the operator as a dietary consultant to provide supervision and consultation sufficient to maintain compliance with food service requirements.

(4) There shall be a written agreement between the dietary consultant and operator which includes the qualifications, duties, time commitment of the consultant and the duration of the agreement.

(5) Persons utilized by an operator to provide food service and nutrition consultation and support shall be qualified as:

(i) a dietitian who has received a baccalaureate degree with major studies in food and nutrition or institutional management from an accredited college or university, is a member or eligible for membership in the American Dietetic Association, participates annually in continuing dietetic education, and has at least two years' full-time work experience in dietetics; or

(ii) a dietetic technician who has successfully completed an associate degree program which meets the educational standards established by the American Dietetic Association, and has at least three year's full-time work experience in dietetics.

(k)Health consultant.

(1) An operator not in compliance with the admission and retention standards set forth in section 487.4 of this Part or with the provisions of subdivision (e), (f) or (g) of section 487.7 of this Part which relate to the maintenance of resident health or mental health, may be required to retain a health consultant or consultants.

(2) Persons utilized by an operator to provide health consultations shall be a physician, physician's assistant or registered nurse. A certified pharmacist may provide consultation in medications management.

(l)Volunteers.

If an operator uses community volunteers:

(1) Volunteers must be supervised by the administrator or his designee.

(2) All volunteers shall be given orientation to the characteristics and needs of the resident population, the rights of residents, the physical layout of the facility, emergency procedures and an explanation of their specific responsibilities.

(3) All volunteers shall be given a copy of the residents' rights.

(4) The operator shall maintain a record for each volunteer, which includes the individual's name, current address and telephone number.

(5) If a community volunteer organization is providing service within the facility, the operator may have an agreement with the organization to retain the information required in paragraph (4) of this subdivision. Such agreement shall include:

(i) the name and address of the organization;

(ii) a designated contact person; and

(iii) a statement that the volunteer organization is able and willing to provide the specific volunteer information as required in paragraph (4) of this subdivision.

(6) Volunteer services may not be substituted for services of paid employees required elsewhere in this Part.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 487.9

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

Amended New York State Register January 19, 2022/Volume XLIV, Issue 03, eff. 4/19/2022

Amended New York State Register June 22, 2022/Volume XLIV, Issue 25, eff. 6/22/2022

Amended New York State Register October 4, 2023/Volume XLV, Issue 40, eff. 10/4/2023