Current through Register Vol. 46, No. 12, March 20, 2024
(a) An operator
of an assisted living residence must comply with the following standards in
addition to the applicable standards contained in 18 NYCRR section
485.5.
(b) Only the following may be
issued an operating certificate by the department for the purpose of operating an
assisted living residence:
(1) a natural
person;
(2) a partnership composed
only of natural persons;
(3) a public
corporation as defined in section
66 of the General Construction Law;
(4) a business corporation other than a
corporation whose shares are traded on a national securities exchange or are
regularly quoted on a national over-the-counter market or a subsidiary of such
corporation or a corporation any of the stock of which is owned by another
corporation;
(5) a not-for-profit
corporation;
(6) a limited liability
company provided that if a limited liability company has a member that is a
corporation, a limited liability company or a partnership, the shareholders of
the member corporation, the members of the member limited liability company, or
the partners of the membership must be natural persons;
(7) a social services district; or
(8) other governmental agency.
(c) In order to operate an assisted
living residence, an operator must be issued an operating certificate in
accordance with the requirements of this Part.
(d) An operating certificate for an assisted
living residence shall:
(1) specify the name
and location of the residence, the name of the operator, the type of residence to
be provided, the capacity of the residence, any conditions or limitations and the
duration of the certificate;
(2) be
nontransferable;
(3) remain the
property of the department; and
(4)
be used only by the licensed operator for the designated site of
operation.
(e) An
operating certificate shall be issued for a period of two years.
(f) No residence shall be operated other than
in accord with the terms and conditions of the operating certificate and the
regulations of this Part pertaining to the specified type of residence.
(g) No operator shall, for purposes of
advertisement, represent the residence by any designation or terminology that
misrepresents the licensure or certification status of the residence.
(h) No operator shall change or modify the
services originally approved and stipulated by the operating certificate, or make
changes to the existing floor plan or to the fire safety systems, without the
prior written approval of the department.
(i) An operator shall not, without the prior
written approval of the department:
(1)
transfer responsibility for operation of the residence to another person or
entity; or
(2) change the composition
of the entity which is the operator, including but not limited to, a change in
sole proprietor, partner, director, stockholder, member or membership interest of
the operator, except in accordance with subdivision (o) of this
section;
(3) convey title to, or
enter into a lease or other use agreement, or amend an existing lease or use
agreement, with respect to the real property on which the residence is located;
or
(4) enter into or significantly
amend, a management agreement relating to the management of the residence in
accordance with section
1001.16 of this
Part.
(j) In the event
that an operator elects to close a residence and to surrender an operating
certificate and/or certification as an enhanced or special needs ALR, the
following provisions shall apply.
(1) The
operator shall notify the appropriate regional office of the department in
writing at least 90 days prior to the anticipated date of closure of the assisted
living residence and, if applicable, the adult care facility, and/or the
decertification of the residence.
(2)
Such written notice shall include a proposed plan for closure and/or
decertification. The plan shall be subject to department approval in accordance
with department protocols, and shall include timetables and shall describe the
procedures and actions the operator will take to:
(i) notify residents of the closure, and/or
decertification, including provisions for termination of admission agreements and
involuntary discharge;
(ii) assess
the needs and preferences of individual residents;
(iii) assist residents in locating and
transferring to appropriate alternative settings; and
(iv) maintain compliance with these regulations
until all residents have relocated.
(3) The operator shall take no action to close
the residence prior to department approval of the plan for closure and/or
decertification.
(4) The operator
shall implement the approved plan to insure that arrangements for continued care
which meets each resident's social, emotional and health needs are effectuated
prior to closure and/or decertification.
(5) Failure to notify the department of intent
to cease operations, failure to submit an approvable plan, to execute the
approved plan, closure or decertification before all residents have been
appropriately relocated, may result in the imposition of civil
penalties.
(k) In the
event of the death of an operator of an assisted living residence who is a sole
proprietor, or a sole director, shareholder or member, or a natural person
partnership, the department may give approval to a plan submitted by the
remaining partner(s), the operator's spouse or executor for the continued
operation of the residence, on a temporary basis, under the outstanding operating
certificate. Such plan shall be submitted within 30 days of the death of the
operator and shall include notice of intent from the remaining partners, spouse
or another applicant to file an application for a new operating certificate and a
proposed timetable for application or a plan for closing the residence. The
proposed timetable for application shall not exceed 90 days unless the applicant
can demonstrate that extension is necessary. Approval under this subdivision to
operate the residence shall continue only while the residence is in compliance
with regulations.
(l) The operating
certificate of any residence may be revoked, suspended, limited or an application
for renewal denied upon a determination by the department that the operator has
failed to comply with these regulations or the requirements of State or local
laws or regulations applicable to the operation of the residence. Section
1001.15
of this Part shall apply to such enforcement actions.
(m) Any operating certificate issued by the
commissioner to the operator of an assisted living residence shall remain the
property of the department and upon voluntary or involuntary closure shall be
surrendered to the department by personal delivery to a designated representative
or by certified or registered mail.
(n) Enhanced assisted living certification.
(1) Nothing in this Part shall require a
residence to obtain an enhanced assisted living certificate unless such residence
elects to provide aging in place by retaining residents described in section
1001.2 of this
Part.
(2) No assisted living
residence shall be certified as enhanced assisted living unless and until the
applicant submits an application to the department for such certification and
obtains the written approval of the department in accordance with the provisions
of this Part. Such application must include, among other things, a plan setting
forth how the additional needs of the residents shall be met, in accordance with
the provisions of section
1001.5
of this Part.
(3) An enhanced
assisted living certificate shall not be required of an adult care facility, or
part thereof, which has obtained approval by the department to operate an
assisted living program pursuant to section
461-d of the Social Services Law; provided,
however, such exemption shall only apply to those beds at the facility which are
subject to the assisted living program.
(o)
(1) Any
transfer, assignment or other disposition of 10 percent or more of an interest or
voting rights in a partnership, business corporation or limited liability company
which is the operator of a residence to a new partner, shareholder or member must
have the prior written approval of the department.
(2) With respect to a transfer, assignment or
disposition involving less than 10 percent of an interest or voting rights in
such partnership, business corporation, or limited liability company to a new
partner, shareholder or member, no prior approval of the department shall be
required. However, no such transaction shall be effective unless at least 90 days
prior to the intended effective date thereof, the partnership, business
corporation or limited liability company fully completes and files with the
department notice on a form, to be developed by the department, which shall
disclose such information as may reasonably be necessary for the department to
determine whether it should bar the transaction. Within 90 days from the date of
receipt of such notice, the department may bar any such transaction under this
paragraph if it finds: there are reasonable grounds to believe the proposed
transaction does not satisfy the good standing or character and competence
review, as may be appropriate, as set forth in section
1001.5(e)
and (f) of this Part; or if the transaction,
together with all other such transactions, during any five-year period, would in
the aggregate, involve 25 percent or more of the interest in the entity that
constitutes the operator. The department shall state specific reasons for barring
any transaction under this paragraph and shall so notify each party to the
proposed transaction.
(3) An operator
which is a not-for-profit corporation must annually provide to the department in
writing the names and addresses of its current directors and officers.
(p) Special needs assisted living
certification.
(1) Any residence that
advertises or markets itself as serving individuals with special needs,
including, but not limited to, individuals with dementia or cognitive
impairments, must submit an application to the department for certification as a
special needs assisted living residence. Such application must include, among
other things, a special needs plan in accordance with the provisions of section
1001.5
of this Part. No residence shall market itself as providing specialized services
to persons with special needs unless and until the department has approved such
applicant for a special needs assisted living certificate.
(q) Authority limited to operator.
(1) Only an operator approved by the department
and issued an operating certificate to operate an assisted living residence can
exercise independent decisionmaking authority over any of the following:
(i) appointment or dismissal of residence
management-level employees;
(ii)
approval of residence operating and capital budgets;
(iii) adoption or approval of residence
operating policies and procedures;
(iv) approval of certificate of need
applications filed by or on behalf of the residence;
(v) the disposition of assets and the authority
to incur liabilities on behalf of the residence;
(vi) approval of residence contracts for
management or, where appropriate, for clinical services;
(vii) approval of settlements of administrative
proceedings or litigation to which the residence is party; and
(viii) control of the records of the
residence.
(2) Nothing in
paragraph (1) of this subdivision shall require the establishment of any member
of a not-for-profit corporation, which operates an assisted living residence,
based solely upon such member's reservation and exercise of the power to require
that the residence operate in conformance with the mission and philosophy of the
residence member.
(3) The established
operator shall be legally responsible for the quality of resident care services,
for the conduct and obligations of the residence and for ensuring compliance with
all applicable Federal, State and local laws.
(4) An individual or entity which has not
received department approval as an operator may not participate in the total
gross income or net revenue of an assisted living residence.
(5) Any operating account of an assisted living
residence shall be in the name of, and for the benefit of, the operator
only.