N.Y. Comp. Codes R. & Regs. tit. 18 § 490.9

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

Section 490.9 - Personnel

(a) General requirements.

(1) The operator must provide staff sufficient in number and qualified by training and experience to render, at a minimum, those services mandated by this Part.

(2)

(i) The operator must develop a written training plan for staff which includes a plan for training new employees and an on-going, in-service program for all staff.

(ii) The training plan must be amended as necessary, revised annually and retained on file for department inspection.

(iii) The on-going in-service program for all staff must be provided at least every 12 months.

(iv) All new employees or employees being newly assigned to perform new tasks must have completed training within three months of employment or assignment.

(3) The operator must 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 of the facility;

(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; and

(vi) training in emergency procedures.

(4) The operator must develop and maintain current written staffing schedules. Staffing schedules must be retained for 12 months after developed or performed.

(5) The operator must maintain personnel records which include:

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

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

(6) 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 (P.A.) or a registered professional nurse (R.N.) 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 potential risk to residents of an adult home and which might interfere with the performance of the individual's duties; and

(ii) 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.

(7) Notwithstanding paragraph (6) of this subdivision, a physical examination is not 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 must require documentation of the employee's standing as a member.

(8) 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/herself or others or is unable to perform his/her assigned duties, may be employed or permitted to work as either an employee or volunteer.

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

(10) Each individual must:

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

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

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

(12) No person under 18 years of age may:

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

(ii) be permitted to work without on-site supervision.

(13) At least one individual currently qualified by a recognized organization to administer basic first aid must be on-duty and on-site at all times.

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

(15) Repealed

(b) Resident employment and volunteer work.

(1) Use of residents as volunteers is 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;

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

(iv) consistent with the individual service plan and goals prepared for each resident who performs voluntary services.

(2) Employment of residents is 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;

(iii) meets all applicable requirements of federal and State labor laws; and

(iv) is consistent with the individual's service plan.

(3) The operator must maintain written records which document the plan for a resident to perform paid or volunteer services including:

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

(ii) the tasks to be performed;

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

(iv) the hours and days to be worked.

(4) The operator must maintain written records of work performed.

(c) Administration.

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

(2) A person may not be designated as administrator without prior approval of the department. Such approval must be based upon review of qualifications set forth in paragraph (8) of this subdivision and demonstrated knowledge of the regulations for adult homes or residences for adults, 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 (7) of this subdivision.

(4) In facilities with a certified capacity of 25 or more beds a qualified administrator must 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 must be employed and on-duty during the day for a minimum of 20 hours per week.

(6) In a multi-level health care facility, which includes a residential health care facility, the administrator of the residential health care facility may be approved as the administrator of the residence for adults. Such approval may be granted if the following conditions are met:

(i) the administrator is a licensed nursing home administrator, and is in the residence for adults and accessible to residents at least eight hours each week;

(ii) the operator provides a satisfactory written plan for supervision of the residence for adults which includes:

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

(b) designation of an assistant administrator;

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

(iii) the minimum hourly requirements for the combined on-duty presence of the administrator and assistant administrator equals the requirements contained in paragraphs (4) and (5) of this subdivision.

(7) The administrator must 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; and

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

(8) An administrator must:

(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 nonrelated individuals knowledgeable of the proposed administrator's background, qualifications and intereat 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) 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

(b) 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 work experience:

(a) 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,

(b) 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 the supervisory experience.

(v) in a facility with a capacity of 91 beds or more, have the following education and work experience:

(a) 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,

(b) 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.

(9) One year of 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.

(10) Approved courses of study may include, but need not be limited to, human services for dependent adults, health care management programs, and social work programs.

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

(12) Related supervisory experience may include, but need not be limited to, work in a setting described in paragraph (11) of this subdivision where the individual had responsibility for the recruitment and supervision of staff and the coordination and management of related program activities.

(13) A person who was the approved administrator of an adult care facility at the time such facility was certified as a residence for adults may continue as administrator of that facility.

(14) An administrator must participate in a program of continuing education which:

(i) consists of a minimum of 60 hours of attendance over a two year period;

(ii) requires the prior approval of the department;

(iii) includes 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;

(iv) includes, 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.

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

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

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

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

(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 the 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) In a facility with 40 or fewer certified beds, a qualified case manager must be on-duty and on-site at least 20 hours per week. Except that in a facility with 24 certified beds or fewer, a qualified administrator who is on-duty and on-site 40 hours per week may be designated to carry out case management services even if that administrator does not meet the specified qualifications for a case manager found in this subdivision.

(2) In a facility with a certified capacity of 41-80 beds, a full-time case manager must be on-site and on-duty at least 40 hours per week.

(3) In a facility with a certified capacity of more than 80 beds, for every additional 40 beds beyond the first 80 beds the operator must provide 20 hours per week of qualified case management services.

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

(5) A case manager must be capable of, and responsible for, executing, through direct performance and coordination, the services and functions stated in subdivision 490.7(e) of this Part.

(6) A case manager must have the following education and work experience; a bachelor's degree or master's from an accredited college or university with a major in human services or service delivery and one year of full-time experience in the provision of services to a dependent adult population.

(7) A person who was the approved case manager of an adult care facility at the time such facility was certified as a residence for adults may continue as case manager of that facility.

(e) Activities.

(1) Each operator must designate a coordinator to develop and implement the activities program.

(i) In facilities with 40 beds or fewer, the administrator and/or the case manager may carry out the duties of the activities coordinator.

(ii) For facilities with more than 40 beds, a qualified activities coordinator must be onsite and on duty at least 40 hours per week.

(2) An activities coordinator must be capable of, and responsible for, executing, through direct performance and coordination the services and functions stipulated in section 490.7(f) of this Part.

(3) An activities coordinator must have at a minimum the following education or work experience:

(i) an associate degree from an accredited college or university with major work in recreation or a related field; or

(ii) satisfactory completion of two years of college with major work in recreation or a related field.

(4) A person without the educational qualifications of a minimum of an associate's degree from an accredited college or university or satisfactory completion of two years of college with major work in recreation, may be designated as an activities director only with the prior written approval of the department.

(f) Resident supervision personnel.

(1) Each person designated or assigned to supervise residents must be capable of executing through direct performance and coordination, the services and functions listed in section 490.7(d) of this Part.

(2) Each operator must assign sufficient staff to perform supervision of residents on a 24 hour basis.

(3) The minimum number of staff required for resident supervision must be determined by resident census. The following number of resident supervision staff must be on-duty and on-site during each respective shift:

Facility Census	Day Shift (approximately 7a.m. - 3p.m.)	Evening Shift (approximately 3p.m. - 11 p.m.)	Night Shift (approximately 11p.m. - 7a.m.)
1 - 40	1	1	1
41 - 80	2	2	2
81 - 120	3	4	3
121 - 160	4	5	4
161 - 200	5	6	4

(4) An additional staff person must be added for each additional increment of 60 residents or portion thereof.

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

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

(7) Staff must be immediately accessible at all times while on duty.

(8) Provision must be made for backup staff.

(9) Staff may be assigned other duties, including facility supervision, which do not interfere with their accessibility, provided that such staff remain responsible and available for resident supervision services.

(g) Facility supervision personnel.

(1) Staff performing other duties may be assigned facility supervision responsibilities.

(2) One person on each shift must be designated to direct and implement facility supervision services.

(h) Housekeeping. The operator must provide staff sufficient in number and skill for the purpose of housekeeping.

(i) Maintenance. The operator must provide staff sufficient in number and skill to comply with the maintenance requirements set forth in section 490.11(1) of this Part.

(j) Food service.

(1) The operator must provide staff sufficient in number and skill for the purpose of food service.

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

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

(4) There must be a written agreement between the dietary consultant and operator which includes the qualifications, duties, and 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 must 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 years 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 490.4 of this Part or with the provisions of subdivisions (d), (e), (f) or (g) of section 490.7 of this Part which relate to the maintenance of resident health or mental health may be required to retain a health or mental health consultant or consultants.

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

(l) Volunteers.

(1) If an operator uses community volunteers:

(i) they must be supervised by the administrator or his/her designee;

(ii) they must 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;

(iii) they must be given a copy of the residents rights; and

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

(2) If a community volunteer organization is providing services within the facility, the operator may have an agreement with the organization to retain the information required in subparagraph (1)(iv) of this subdivision. Each agreement must 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 subparagraph (1)(iv) of this subdivision.

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

N.Y. Comp. Codes R. & Regs. Tit. 18 § 490.9

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