New York Codes, Rules and Regulations
Title 10 - DEPARTMENT OF HEALTH
Chapter X - Assisted Living Residences
Part 1001 - Assisted Living Residences
Section 1001.16 - Contracts
Universal Citation: 10 NY Comp Codes Rules and Regs ยง 1001.16
Current through Register Vol. 46, No. 12, March 20, 2024
(a) In the event that an operator contracts with a separate entity to perform any aspect of the residence's operation or management, the provisions of 18 NYCRR section 485.10 will apply. In addition, the operator must comply with the provisions of this section.
(b) Management contracts.
(1) For purposes of this Part, a management
contract is an agreement between the operator and a management entity for the
purpose of managing the day-to-day operations of a residence or any part thereof,
subject to the direction and supervision of the operator. The following shall not
be considered management contracts:
(i) a
contract solely for the provision of professional or other services;
(ii) an employment contract; or
(iii) a contract for the provision of
administrative, consulting or support services if all of the following factors
are present:
(a) the residence's operator
retains responsibility for the day-to-day operations of the residence;
(b) the contracting entity has no authority to
hire or fire any personnel working in the residence;
(c) the contracting entity does not exercise
control of the books and records of the residence;
(d) the contracting entity has no authority to
dispose of assets or to incur any liability on behalf of the residence;
and
(e) the contracting entity has no
authority to adopt or enforce policies regarding the operation of the
residence.
(2)
An operator may enter into a management contract if the requirements of this
section are met. A management contract shall be effective only with the prior
written consent of the department. Management contracts shall include the
following:
(i) a description of the proposed
roles of the operator and managing entity during the period of the proposed
management contract. The description shall clearly reflect retention by the
operator of ongoing responsibility for compliance with all statutory and
regulation requirements;
(ii) the
method and amount of payment, expressed as a flat fee or, notwithstanding section
1001.4(q)(4)
of this Part, a percentage, for management services provided to the assisted
living residence;
(iii) a provision
which recognizes clearly that the responsibilities of the operator are in no way
lessened by entering into the management contract, that the operator retains full
legal authority over the operation of the residence, and that any powers not
delegated specifically to the managing entity through the provisions of the
contract remain with the operator;
(iv) provisions stating that, notwithstanding
any other provision of the contract, the operator retains:
(a) direct, independent authority to hire or
discharge any person working in the residence;
(b) independent control of the residence's
books and records;
(c) independent
authority over the disposition of assets and the independent authority to incur
liability on behalf of the residence;
(d) independent authority for the adoption and
enforcement of policies affecting the delivery of services;
(e) independent approval of residence operating
and capital budgets;
(f) independent
approval of certificate of need applications filed by or on behalf of the
residence;
(g) independent approval
of residence contracts for home care or clinical services;
(h) independent approval of settlements of
administrative proceedings or litigation to which the residence is
party;
(i) its name on all residency
agreements and disclosures entered into pursuant to this Part; and
(j) beneficial and legal control of any
accounts relating to the operation of the residence;
(v) an express representation that any
management contract approved by the department is the sole agreement between the
operator and the managing entity for the purpose of managing the day-to-day
activities of the residence and that any amendments or revisions to the
management contract which increase the amount or extent of authority delegated to
the managing entity shall be effective only with the prior written consent of the
department.
(3) The
operator shall retain sufficient authority and control to discharge its
responsibilities under this Part. The following elements of control shall not be
delegated to a managing entity:
(i) direct
independent authority to hire and discharge any person working in the
residence;
(ii) independent control
of the residence's books and records;
(iii) independent authority over the
disposition of assets and the independent authority to incur liability on behalf
of the residence;
(iv) independent
authority for the adoption and enforcement of policies affecting the delivery of
services;
(v) independent approval of
residence operating and capital budgets;
(vii) independent approval of resident
contracts for home care or clinical services;
(viii) independent approval of settlements of
administrative proceedings or litigation to which the residence is
party;
(ix) the right to have other
than the operator's name on residency agreements or disclosures as the licensed
operator of the residence; and
(x)
beneficial and legal control of any accounts relating to the operation of the
residence.
(4) The
operator may use the model management contract developed by the department in
consultation with appropriate stakeholders; provided, however, that the
development of such model agreement shall not be a prerequisite for the
implementation of the provisions of this section.
(5) An operator wishing to enter into a
management contract shall submit a proposed written contract to the department,
at least 60 days prior to the intended effective date, unless a shorter period is
approved in writing by the department, due to extraordinary circumstances. In
addition, the operator shall also submit, within the same timeframe, the
following:
(i) documentation demonstrating that
the proposed managing entity holds all necessary approvals to do business in New
York State;
(ii) evidence of the
managing entity's financial stability; and
(iii) information necessary to determine that
the character and competence of the proposed managing authority, and its
principals, members, officers and directors, is satisfactory, including evidence
that all facilities it has managed in any jurisdiction have provided a
substantially consistent high level of care in accordance with Title 18 NYCRR
section 485.6, during the term of their management contract or operating
certificate.
(6) During
the period between an operator's submission of a request for initial approval of
a management contract and disposition of that request, an operator may not enter
into any arrangement for management contract services other than a written
interim consultative agreement with the proposed managing entity. Any interim
agreement shall be consistent with the provisions of this section and shall be
submitted to the department no later than five days after its effective
date.
(7) The term of a management
contract shall be limited to five years and may be renewed for additional periods
not to exceed five years only when authorized by the department. The department
may approve a request for renewal provided that compliance with this section is
demonstrated and that the quality of care provided by the facility during the
term of the contract has been maintained or has improved.
(8) The department shall provide a written
response to a submitted proposed management agreement within 90 days of such
submission, provided the department has received all information necessary for
its review of such proposed agreement.
(9) A contract for which the request for
renewal has been submitted to the department at least 60 days prior to its
expiration may be extended on an interim basis until the department approves or
disapproves the request for renewal.
(10) Once a management contract has been
approved by the department, any subsequent proposed substantive change to such
agreement relative to powers delegated, management fees, the term of the
agreement, and any change in the management entity or its principals must receive
the prior written approval of the department.
(c) The department may direct an assisted living residence operator to terminate a management agreement should the residence provide a severe and persistent substandard level of care as demonstrated by non-compliance with the provisions of this Part.
Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.