Title 69: Department of Aging

Chapter 1: Adjudications

§ 1-01 Conduct of Adjudicatory Hearings.

New York City Department for the Aging adjudications regarding the fitness and discipline of agency employees, and adjudications conducted pursuant to its Expanded In-Home Services for the Elderly Program, will be conducted by the Office of Administrative Trials and Hearings. After conducting an adjudication and analyzing all testimony and other evidence, the hearing officer in both types of hearings shall make written proposed findings of fact and recommend decisions, which shall be reviewed and finally determined by the Commissioner.

Chapter 2: Social Adult Day Care

Subchapter 1: Ombudsperson’s Office

§ 2-01 Definitions.

As used in this chapter, the following terms have the following meanings:

Commissioner. The term “Commissioner” means the commissioner of the Department for the Aging.

Complaint Subject. The term “Complaint Subject” means the program which is the subject of a complaint filed pursuant to 69 RCNY § 2-02.

Department. The term “Department” means the Department for the Aging or, regarding the issuing of notices of violation, any other agency that may be designated by the Mayor to issue a notice of violation to enforce the provisions of this chapter or Section 21-204 of the Administrative Code, pursuant to paragraph 3 of subdivision c of such Section 21-204.

Dismiss. The term “Dismiss” means to dismiss without prejudice to a future complaint.

Managed Long Term Care or MLTC. The term “Managed Long Term Care” or “MLTC” means an entity that has received a certificate of authority from the New York State Department of Health to provide, or arrange for health and long term care services, including social adult day services, to people who are chronically ill or disabled and which held a contract for reimbursement with the Complaint Subject on the date of the complaint.

Social Adult Day Care or SADC. “Social Adult Day Care” or “SADC” has the same meaning as the term “social adult day care program” as defined in the State SADC Regulations.

State SADC Regulations. The term “State SADC Regulations” means the regulations of the Director of the New York State Office for the Aging regarding social adult day care programs, pursuant to Section 215 of the elder law, and promulgated at 9 NYCRR § 6654.20, or such successor regulations.

§ 2-02 Filing Complaints.

  1. Complaints may be filed with the ombudsperson by a participant of an SADC; by the parent, child, spouse, sibling, or legal guardian of a participant of a SADC; or by a person working at an SADC as an employee, contractor, or volunteer. Complaints filed by any other person may also be received at the discretion of the ombudsperson, who will consider, among other factors, the nature or severity of the alleged misconduct, the availability of evidence or witnesses, the credibility of the complaint, and the number of complaints received by the ombudsperson regarding the SADC.
  2. Complaints to the ombudsperson may be submitted in a form and manner determined by the ombudsperson. If any complaint is submitted anonymously or without contact information, the ombudsperson will not be obligated to provide any notice to the complainant with respect to that complaint, notwithstanding any other provision of this chapter.
  3. The ombudsperson may dismiss any complaint that is not filed in accordance with this section.

§ 2-03 Initial Processing of Complaints.

  1. When a complaint is received, the ombudsperson will notify the complainant via email or first-class mail that their complaint has been received.
  2. Upon receipt of a complaint, the ombudsperson will determine whether the Complaint Subject is operating as an SADC in New York City. If so, the complaint will be accepted. If not, the complaint will be dismissed.
  3. The ombudsperson will determine whether the Complaint Subject has registered with the Department, as required by subdivision b of Section 21-204 of the Administrative Code. If not, the ombudsperson will notify the Complaint Subject via email or first-class mail and notify the official responsible for enforcing such requirement of the SADC’s failure to register. Upon notification, the official may issue a notice of violation, returnable to the Office of Administrative Trials and Hearings, with a civil penalty pursuant to the schedule set forth in 69 RCNY § 2-31.

§ 2-04 Referring Complaints.

  1. Where the ombudsperson accepts a complaint that includes a matter within the sole jurisdiction of another agency, including but not limited to the Department of Buildings, the Department of Health and Mental Hygiene, the Fire Department, the Commission on Human Rights, or the state Office of the Medicaid Inspector General, the ombudsperson will refer the complaint to the other agency.
  2. Where the ombudsperson accepts a complaint that includes a matter partly within the jurisdiction of another agency, the ombudsperson may refer the entire complaint to the other agency where, in the determination of the ombudsperson, it is appropriate for the entire complaint to be investigated by a single agency, or may refer only those elements of the complaint that are within the jurisdiction of the other agency to that agency.
  3. If the ombudsperson refers any element of an accepted complaint to another agency pursuant to this section, the ombudsperson must (i) notify the Complaint Subject of its referral, (ii) notify the state Department of Health, the state Office for the Aging, and the state Office of the Medicaid Inspector General of the complaint and its referral, and (iii) notify the complainant of its referral. All such notices must be sent by email or first-class mail. If the ombudsperson referred the entire complaint to another agency, the ombudsperson will dismiss the complaint and notify the Complaint Subject and the complainant, by email or first-class mail, that the complaint has been referred to another agency and dismissed before the ombudsperson.

§ 2-05 Investigating Complaints.

  1. If an accepted complaint has not been referred entirely to another agency or dismissed pursuant to subdivision c of 69 RCNY § 2-04, the ombudsperson will investigate the complaint.
  2. As part of such investigation, the ombudsperson may require that the Complaint Subject or an MLTC provide any information or records necessary to conduct such investigation. The ombudsperson may also visit the Complaint Subject facilities and other locations relevant to the subject matter of the complaint during normal operating hours, conduct interviews, inspect any records required to be maintained by the Complaint Subject by the State SADC Regulations, and collect any other relevant evidence necessary to conduct a thorough investigation.
  3. If access to any property or records the ombudsperson seeks to inspect pursuant to this section is denied, the ombudsperson may seek judicial authorization and may access that property or records pursuant to the authorization. In exigent circumstances where there is an imminent and serious threat to health or safety, the ombudsperson may enter on any property without such judicial authorization to inspect for compliance with Section 21-204 of the Administrative Code, in accordance with law.

§ 2-06 Factual Determinations.

  1. Upon completion of its investigation, the ombudsperson will determine either that there is insufficient evidence or sufficient evidence to substantiate a violation of the provisions of subdivision a of Section 21-204 of the Administrative Code.
  2. If the ombudsperson determines that there is insufficient evidence of a violation, the complaint will be dismissed. The ombudsperson will notify the Complaint Subject, all known MLTCs, and the complainant, by email or first-class mail, that the complaint has been dismissed.
  3. If the ombudsperson determines that there is sufficient evidence of a violation, a factual determination, in writing, describing the violation and the evidence of the violation will be made. The ombudsperson will notify the Complaint Subject, all known MLTCs, and the complainant, by email or first-class mail, of the determination that there is sufficient evidence of a violation. The notice must include the written factual determination. The notice must also include an explanation of the appeals process described in 69 RCNY § 2-07, including that the determination may be modified or overturned upon an appeal.

§ 2-07 Appeals of Factual Determinations.

  1. A Complaint Subject or any MLTC may appeal a factual determination that there was a violation to the Commissioner.

   1. A notice of appeal must be filed with the Commissioner, at the address indicated in the notice of the factual determination, within 10 days of the factual determination that there was a violation. The notice of appeal must include the full name of the appellant, the identity and location of the Complaint Subject, a copy of the factual determination being appealed, and a statement that the appellant intends to appeal the factual determination.

   2. The appeal must be perfected within 20 days of the factual determination. The appeal must be filed in writing with the Commissioner at the address indicated in the notice of the factual determination. The appeal must include the identity of the Complaint Subject, a copy of the factual determination being appealed, and a statement of the reasons why the Complaint Subject believes the factual determination to be incorrect.

   3. Petitions for an extension of these deadlines may be presented in writing before the due date for a notice of appeal or the perfection of the appeal and will be granted upon a showing of reasonable cause.

   4. The Commissioner will make best efforts to render a written decision as to whether the factual determinations are correct or incorrect, including a statement of the reasons for the decision, within 60 days of receipt of the perfected appeal. The Commissioner will provide its decision, by email or first-class mail, to the Complaint Subject, all MLTCs, and the complainant.

   5. A written decision by the Commissioner upholding or modifying a factual determination will be considered a factual determination subject to 69 RCNY § 2-08.

  1. The ombudsperson may not issue a notice of violation or impose civil penalties pursuant to 69 RCNY § 2-08 until: (i) the 10-day period during which an appeal may be noticed has elapsed; or (ii) the 20-day period during which an appeal may be perfected has elapsed where a notice of appeal has been timely filed; or (iii) the Commissioner has rendered a written decision on an appeal where a perfected appeal has been timely filed.
  2. If the Complaint Subject or an MLTC files a notice of appeal or perfects its appeal, the ombudsperson will notify all MLTCs of the action by email or first-class mail. The notice must include an explanation of the appeals process, including that the factual determination made by the ombudsperson may be modified or overturned upon appeal.
  3. The written decision of the Commissioner pursuant to this section may not be appealed.

§ 2-08 Corrective Action Plans and Violations.

  1. After making a factual determination of a violation pursuant to 69 RCNY § 2-06, the ombudsperson will request a corrective action plan from the Complaint Subject.

   1. Along with or in addition to the notice of a factual determination made to the Complaint Subject pursuant to subdivision c of 69 RCNY § 2-06, the ombudsperson will request that the Complaint Subject develop a corrective action plan in response to such determination.

   2. (a) The ombudsman may approve a corrective action plan provided by the Complaint Subject where the ombudsperson determines such plan is sufficient to resolve the violation that was the subject of the factual determination, and where the Complaint Subject provides a certification that all MLTCs have consented to the corrective action plan as sufficient to address the violations. If the corrective action plan is approved, the complaint will be marked resolved and the Complaint Subject will be responsible for implementing the corrective action plan.

      (b) The ombudsperson may deem that an MLTC has consented to a proposed corrective action plan in accordance with this paragraph upon a showing, made to the satisfaction of the ombudsperson, that: (i) the Complaint Subject presented the proposed corrective action plan to the MLTC, (ii) the Complaint Subject made attempts to gain the consent of the MLTC, and (iii) after a reasonable amount of time, but in no case less than one week, the MLTC did not provide consent, disapproval, or any other feedback on the proposed corrective action plan.

   3. In determining whether a corrective action plan is sufficient pursuant to paragraph 2 of this subdivision, the ombudsperson may consider the seriousness of the violation, the extent of any injuries or other detrimental effects caused by the violation, the Complaint Subject’s past record of any related violations, and the Complaint Subject’s past and present efforts to prevent any violations. The ombudsperson may also consider whether the corrective action plan identifies with specificity the causes of each violation described in the factual determination, provides a plan sufficient to correct each violation, and provides a plan to prevent the recurrence of each violation.

   4. Where a complaint has been resolved through the approval of a corrective action plan, the ombudsperson will notify the complainant by email or first-class mail that a corrective action plan has been implemented and the complaint has been resolved.

   5. The ombudsperson will monitor compliance with an approved corrective action plan through the investigative tools provided in 69 RCNY § 2-05. If the ombudsperson determines the Complaint Subject has failed to fully implement the corrective action plan, the ombudsperson may make a new factual determination pursuant to 69 RCNY § 2-06, and may consider the corrective action plan to not be implemented in accordance with subdivision b of this section.

  1. The Department may issue a notice of violation, returnable to the Office of Administrative Tribunals and Hearings, and impose a civil penalty in accordance with the schedule in 69 RCNY § 2-31, when a corrective action plan is not implemented within 60 days of a request made pursuant to this section, or when the ombudsperson determines the Complaint Subject has failed to implement an approved corrective action plan.

Subchapter 2: Registration

§ 2-21 Registration Requirements.

  1. A SADC must register on the Department’s website or using an electronic form as designated by the Department in accordance with subdivision b of Section 21-204 of the Administrative Code. Such registration must include at least the following information:

   1. Registrant’s name and if SADC is operating under any other business name or names;

   2. Registrant’s address;

   3. Registrant’s phone number;

   4. Registrant’s Tax ID;

   5. Days and hours of operation;

   6. Year SADC established;

   7. SADC Director’s name and contact information;

   8. Registrant’s corporate structure and ownership;

   9. Registrant’s corporate address;

   10. Date of Food Service Establishment Permit (if applicable);

   11. Certificate of Occupancy (yes/no);

   12. Certified with NYS Office of Medicaid Inspector General (yes/no);

   13. Name of local fire jurisdiction and date notified of SADC’s presence;

   14. Physical accessibility of the SADC facility;

   15. Contracted Managed Long Term Care plans;

   16. Number of work shifts per day;

   17. Anticipated average attendance per shift or per day; and

   18. Anticipated average number of staff per shift or per day.

  1. A fee of $900 will be charged for each SADC registration.
  2. A SADC must submit changes to any of the information required by subdivision a of this section on the Department’s website or an electric form designated by the Department within 30 days of the effective date of such changes. A fee of $240 will be charged for each such submission.
  3. A SADC must notify the Department within 30 days of ceasing operation and request its registration be terminated.

§ 2-22 Registration Civil Penalties.

  1. A business entity that operates as a social adult day care without registering shall be subject to a civil penalty pursuant to the schedule set forth in 69 RCNY § 2-31.

Subchapter 3: Penalties

§ 2-31 Penalty Schedule.

Civil penalties for violations of this chapter or Section 21-204 of the Administrative Code, shall be provided follows:

Violation Penalty
Failure to Register with the Department $1,000 per each day the SADC is operating
Failure to Submit Changes to Registration to the Department $500 per each day the SADC is operating
Failure to Adhere to Program Standards $500 per day, for each violation of the State SADC Regulations

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