Current through Register Vol. 46, No. 12, March 20, 2024
(a) The following standards will apply to
applicants for licensure as an assisted living residence and certification as
enhanced assisted living and special needs assisted living, in addition to those
contained in 18 NYCRR section 485.6 unless expressly provided otherwise in this
section.
(b) In order to operate an
assisted living residence, an operator must be licensed as an adult home or
enriched housing program. Applications for licensure as an assisted living
residence must be filed with the department.
(1) Applications may be filed simultaneously
with an application for licensure as an adult home or enriched housing
program.
(2) Applications for
assisted living licensure must include all licensed adult home or enriched
housing program beds on the facility's operating certificate, or in the same
building, excluding assisted living program beds.
(c) In order to operate as enhanced assisted
living or special needs assisted living, an operator must be licensed as an
assisted living residence, and must obtain additional certification as either
enhanced assisted living or special needs assisted living.
(1) Assisted living residences may apply for
enhanced and/or special needs assisted living certification for either all or a
portion of their licensed beds.
(2)
Certified special needs assisted living beds must be located in a fixed area
within a building. They cannot "float," i.e., be designated within the building
as the need arises.
(3) Enhanced
assisted living beds may float, but the number of beds designated as enhanced
assisted living beds and the number of residents receiving enhanced assisted
living services may not exceed the number of such beds on the facility's
operating certificate. An applicant that proposes to use such floating beds must
describe in its application how it will ensure that all applicable program and
structural requirements of regulation will be met.
(d) An application for licensure as an assisted
living residence or for certification as enhanced assisted living or for
certification as special needs assisted living shall be submitted in writing on
application forms provided by the department. Such application shall be
subscribed by the chief executive officer or other officer duly authorized by the
board of a corporate applicant, the managing member of a limited liability
company, a general partner or proprietor of the proposed residence, or, where an
application is to be submitted by a local governmental applicant, the president
or chairman of the board of the proposed facility or the chief executive officer
if there is no board. The application shall be accompanied by a certified copy of
a resolution of the board of a corporate applicant authorizing the undertaking
which is the subject of the application, and the subscribing and submission
thereof by an appropriately designated individual. In the event that an
application is to be submitted by an entity which necessarily remains to be
legally formed, it shall be subscribed and submitted by one of the proposed
stockholders, directors, members, or another appropriately designated person. If
a local governmental applicant submitting an application has not designated a
president, chairman or chief executive officer for the proposed facility, the
application shall be subscribed by the chairman or president of the local
legislature or board of supervisors having jurisdiction, or other appropriate
executive officer.
(e) The department
may grant approval for licensure or certification pursuant to this Title only to
an applicant who satisfactorily demonstrates:
(1) that such applicant possesses a valid
operating certificate to operate as an adult home or enriched housing program. An
applicant that does not currently possess such operating certificate as an adult
home or enriched housing program may simultaneously apply and be approved for
such certificate and all other licenses and certifications authorized under this
Title;
(2) that such applicant which
has an existing valid adult home or enriched housing program operating
certificate is in good standing with the department. For purposes of this
section, the term applicant shall include proposed incorporators, directors,
members, sponsors, sole proprietors or partners of the operator or proposed
operator. In accordance with Public Health Law, section
4656(3)(b), applicants that
are in good standing are those who have not:
(i) received any official written notice from
the department of a proposed revocation, suspension, denial or limitation on the
operating certificate of the facility or residence;
(ii) within the previous three years, been
assessed a civil penalty after a hearing conducted pursuant to subparagraph one
of paragraph (b) of subdivision (7) of section
460-d of the Social Services Law for a
violation that has not been rectified;
(iii) within the previous year, received any
official written notice from the department of a proposed assessment of a civil
penalty for a violation described in subparagraph (2) of paragraph (b) of
subdivision (7) of section
460-d of the Social Services Law;
(iv) within the previous three years, been
issued an order pursuant to subdivision (2), (5), (6), or (8) of section
460-d of the Social Services Law;
(v) within the previous three years, been
placed on, and if placed on, removed from the department's "do not refer list"
pursuant to subdivision (15) of section
460-d of the Social Services Law.
In the case of an applicant which otherwise meets the
requirements of this section, but is not in good standing as provided in this
paragraph, the department may approve such applicant if it determines that the
applicant is of good moral character and is competent to operate the residence.
As part of the review provided pursuant to this section, the department shall, on
its website, solicit and consider public comment with respect to all applications
submitted;
(3)
that the applicant has adequate financial resources to provide such assisted
living as proposed;
(4) that the
building, equipment, staff, standards of care and records to be employed in the
operation comply with applicable statutes and any applicable local law;
(5) that any license or permit required by law
for the operation of such residence has been issued to such operator;
and
(6) that in the case of an
applicant which does not have an existing valid adult home or enriched housing
program operating certificate as of the time of submission of the application for
licensure as an assisted living residence, such applicant complies with the
provisions for certification as prescribed by article 7 of the Social Services
Law.
(f) A review of
character and competence pursuant to 18 NYCRR section 485.6(a)(1)(i) and (ii)
shall be conducted for:
(1) applicants who have
an existing valid adult home or enriched housing program operating certificate
who are not in good standing pursuant to this section; and
(2) applicants who do not have an existing
valid adult home or enriched housing program operating certificate at the time of
submission of the application for licensure as an assisted living
residence.
(g) General
requirements. Applications shall contain information and data with reference to:
(1) the financial resources and sources of
future revenue of the facility to be operated by the applicant;
(2) the fitness and adequacy of the premises
and equipment to be used by the applicant for the proposed facility;
(3) plan for administration;
(4) services to be offered;
(5) provision of required consumer information
as set forth in sections
1001.7
and
1001.8
of this Part;
(6) the following legal
documentation:
(i) a certified copy of the
applicant's certificate of doing business, if any;
(ii) evidence of site control, such as a deed,
lease or a use agreement;
(iii)
management or consulting agreement, if any, which shall be in accordance with the
provisions of section
1001.16 of this
Part;
(iv) where the applicant is a
partnership, full and true copies of all partnership agreements, which shall
include the following language:
"By signing this agreement, each member of the partnership
created by the terms of this agreement acknowledges that the partnership and each
member thereof has a duty to report to the New York State Department of Health
any proposed change in the membership of the partnership. The partners also
acknowledge that the prior written approval of the Department of Health is
necessary for such change before such change is made, except that a change
resulting from an emergency caused by the severe illness, incompetency or death
of a member of the partnership shall require immediate notification to the
Department of Health of such fact and application shall be made for the approval
of such change within 30 days of the commencement of such emergency. The partners
also acknowledge that they shall be individually and severally liable for failure
to make the aforementioned reports and/or applications."
(v) where the applicant is a corporation:
(a) a photocopy of the executed proposed
certificate of incorporation or certificate of amendment to the certificate of
incorporation, containing purposes which authorize the establishment and
operation of an assisted living residence and, if applicable, an enhanced
assisted living residence or a special needs assisted living residence, in
accordance with the provisions of section
1001.3
of this Part, subject to the prior written approval of the department;
(b) a certified copy of the resolution of the
board of directors authorizing the submission of the application and the
subscribing and submission thereof, by an appropriate designated
individual;
(c) bylaws of the
corporation;
(vi) where
the applicant is a business corporation:
(a) an
affidavit from each shareholder that he or she is to be the sole beneficial owner
of the shares for which he or she is to be the owner of record; the number of
voting shares of which he or she is to be owner of record; and that all stock
authorized by the certificate of incorporation will be issued and
outstanding;
(b) the total number of
outstanding (not issued) shares of the corporation;
(c) a statement that the shares are not traded
on a national securities exchange and are not regularly quoted on a national
over-the-counter market; that the corporation is not a subsidiary of a
corporation whose shares are traded on a national exchange or over-the-counter
market; and that no stock of the corporation is owned by another
corporation;
(d) stock certificates
of the corporation shall state that: no person may own any share of or have any
voting rights in the corporation, unless approved by the department; and that any
transfers, assignments or other dispositions of shares or voting rights must be
approved by the department;
(vii) where the applicant is a limited
liability company, the application must include the following documentation:
(a) a photocopy of the applicant's fully
executed articles of organization, and any amendments thereto, containing
purposes which authorize the establishment and operation of an assisted living
residence and if applicable, an enhanced assisted living residence or a special
needs assisted living residence, in accordance with the provisions of section
1001.3
of this Part, subject to the prior written approval of the department;
(b) a photocopy of the applicant's fully
executed operating agreement;
(c)
identification of all members of the applicant and the percentage of membership
interest of each;
(d) a statement
that the LLC is an eligible LLC under the provisions of Social Services Law,
section
461-b(1)(a) as follows: a
statement as to whether any of the members identified in clause (vi)(b) of this
paragraph is a corporation, an LLC or a partnership. If the LLC has any member
that is a corporation, identification of all shareholders of each member
corporation and a statement that all members of each member corporation are
natural persons. If the LLC has any member that is an LLC, identification of each
member of the member LLC and a statement that all members of the member LLC are
natural persons. If the LLC has any members that are partnerships, identification
of each member of the member partnership and a statement that all members of the
member partnership are natural persons;
(e) if the applicant has any business
corporation members:
(1) fully executed copies
of their certificates of incorporation which must include sufficient powers and
purposes to own membership interests in the applicant LLC; and
(2) identification of all officers, directors
and stockholders;
(f) if
the applicant has any not-for-profit corporation members, fully executed copies
of their certificates of incorporation and bylaws which must include sufficient
powers and purposes to own membership interests in the applicant LLC;
(g) if the applicant has any LLC members:
(1) fully executed copies of their articles of
organization;
(2) fully executed
copies of their operating agreements; and
(3) identification of all members and managers.
The articles of organization and the operating agreement of
such member LLC must provide that: all of the "second tier" LLC members shall be
natural persons; and that any transfer, assignment or other disposition of
membership interests or voting rights must have the prior approval of the New
York State Department of Health;
(h) if the applicant has any general
partnership members:
(1) fully executed copies
of their partnership agreements; and
(2) identification of all partners;
(3) identification of all managers of the
applicant;
(i) if the
applicant will be managed by managers who are not members, a photocopy of the
proposed management agreement between the applicant and the manager;
(j) if the LLC will be managed by managers who
are not members, that the following powers are reserved to the members:
(1) direct independent authority over the
appointment of the administrator, approval of all other persons working in the
facility and dismissal of all persons working in the facility;
(2) approval of facility operating and capital
budgets and independent control of the books and records including that all
facility accounts and billing must be in the name of, on behalf of and for the
benefit of the operator;
(3) adoption
or approval of facility operating policies and procedures and independent
adoption of policies affecting the delivery of facility services;
(4) authority over the disposition of assets
and authority to incur liabilities not normally associated with day-to-day
operations;
(5) approval of facility
debt necessary to finance the cost of compliance with operational or physical
plant standards required by law;
(6)
approval of contracts; and
(7)
approval of settlements of administrative proceedings or litigation to which the
facility is a party;
(7) information
on the ownership of the property interests in such facility, including: the name
and address and a description of the interest held, or proposed to be held, by
each of the following persons:
(i) any person
who, directly or indirectly, beneficially owns any interest in the land on which
the facility is located;
(ii) any
person who, directly or indirectly, beneficially owns any interest in the
building in which the facility is located;
(iii) any person who, directly or indirectly,
beneficially owns any interest in any mortgage, note, deed of trust or other
obligation secured in whole or in part by the equipment used in the facility, or
by the land on which or the building in which the facility is located;
(iv) any person who, directly or indirectly,
has any interest as lessor or lessee in any lease or sublease of the land on
which or the building in which the facility is located;
(v) any person who, directly or indirectly has
any interest as a lessor or lessee in any lease or sublease of the equipment used
in the building in which the facility is located; if any person named in response
to paragraph (1) of this subdivision is a partnership, then the name and address
of each partner;
(vi) if any person
named in response to subparagraph (i) of this paragraph is a corporation, other
than a corporation whose shares are traded on a national securities exchange or
are regularly quoted in an over-the-counter market or which is a commercial bank,
savings bank or savings and loan association, then the name and address of each
officer, director, stockholder and, if known, each principal stockholder and
controlling person of such corporation; and
(vii) if any corporation named in response to
subparagraph (i) of this paragraph is a corporation, whose shares are traded on a
national securities exchange or are regularly quoted in an over-the-counter
market or which is a commercial bank, savings bank or savings and loan
association, then the name and address of the principal executive officers and
each director and, if known, each principal stockholder of such
corporation;
(8) any other
information requested by the department that the department may deem necessary
for the evaluation of the application, provided the information is not
duplicative of what is otherwise required of the applicant in obtaining an adult
care facility operating certificate.
(h) The applicant shall provide any
information and documentation requested by the department within 60 days of such
request, unless the applicant obtains from the department an extension of the
time in which to provide such information or documentation. Any request for such
extension of time shall set forth the reasons why such information or
documentation could not be obtained within the prescribed time. The granting of
such extension of time shall be at the discretion of the department, provided
such extensions are not for more than 60 days and the department is satisfied as
to the reasons why such information or documentation could not be obtained within
the prescribed time. The department is authorized to deny a request for an
extension of time. Failure to provide such information or documentation within
the time prescribed may constitute an abandonment and withdrawal of the
application by the applicant.
(i)
Application requirements for enhanced assisted living certification. An
application for enhanced assisted living certification shall also include a plan
which sets forth how the additional needs of residents will be safely and
appropriately met at the enhanced assisted living residence. Such plan shall
include, but need not be limited to:
(1) a
written description of services;
(2)
staffing levels;
(3) staff education
and training;
(4) work experience of
individuals (operator's staff or contractors) who will provide services to
residents; and
(5) any environmental
modifications that will be made to protect the health, safety and welfare of the
residents.
Such plan must be in accordance with the requirements set forth
in this Part.
(j)
Application requirements for special needs assisted living certification. An
application for special needs assisted living certification shall also include a
special needs plan setting forth how the special needs of such residents will be
safely and appropriately met at such residence. Such plan shall include, but need
not be limited to:
(1) a written description of
specialized services;
(2) staffing
levels;
(3) staff education and
training;
(4) work experience of
individuals (operator's staff or contractors) providing services to
residents;
(5) professional
affiliations or special characteristics relevant to serving persons with special
needs; and
(6) any environmental
modifications that have been or will be made to protect the health, safety and
welfare of such persons in the residence.
Such plan must be in accordance with the requirements set forth
in this Part.
(k)
Expedited application for additional enhanced or special needs ALR beds. A
certified operator of enhanced or special needs assisted living may apply, on an
expedited basis, for department approval of up to five additional beds to serve
current residents of the operator's licensed residence who would be appropriate
for residence in such certified setting. Such application shall be submitted on a
form provided by the department, which shall include a narrative setting forth
the need for such beds, documentation that the residence can add such beds in
accordance with applicable structural and environmental standards, and such
additional information as the department deems necessary. The department shall
respond to such applications for approval within 30 days of receiving all
necessary information from the operator.
(l) Amendments to applications. An application
may be amended while the application is pending before the department.
(1) Any amendment to an application which
constitutes a substantial change in the information contained in the original
application, or any prior amendments thereto, must be accompanied by a
satisfactory written explanation as to the reason such information was not
contained in the original application.
(2) Prior to issuance of a license, any change
as set forth in this subdivision shall constitute an amendment to the application
and the applicant shall submit appropriate documentation as may be required in
support of such amendment. The approval of the department must be obtained for
any amended application.
(m) Administrative withdrawal of applications
by the department.
(1) At any time during the
application review and approval process, the department may request an applicant
to submit information that is missing from the application; to submit information
in addition to that described in this section and/or on the application form; or
to submit more current information than that in its application. Applicants must
submit such information within 60 calendar days of being notified by the
department that such information is required. If the applicant fails to submit
the required information by the end of the 60-day period, the application may be
administratively withdrawn without prejudice to the applicant; provided, however,
all fees will be forfeited and will not be refunded. Applications submitted by
the applicant subsequent to such administrative withdrawal will be processed as
new applications. All applicable fees will apply.
(2) The department may notify the applicant
that it is required to modify the information in its application in order to
ensure that the facility, ownership, operations, physical plant, etc., are in
compliance with all applicable Federal, State and local statutes, rules and
regulations. The department may administratively withdraw the application if the
applicant fails to modify its application as directed by the department within 60
calendar days of such notification. All fees will be forfeited and will not be
refunded. Applications submitted by the applicant subsequent to such
administrative withdrawal will be processed as new applications. All applicable
fees will apply.
(n)
Withdrawals of applications by the applicant.
(1) Licensure and certification fees associated
with applications that are withdrawn pursuant to paragraph (2) of this
subdivision are forfeited and will not be refunded to the applicant. Applicants
who submit applications subsequent to withdrawing an application pursuant to
paragraph (2) of this subdivision must pay all applicable fees.
(2) An application may, on written request of
the applicant, be withdrawn prior to decision by the department at any time
without prejudice to the applicant.
(o) Failure to implement an application. The
failure, neglect or refusal of an applicant to obtain a license and commence
operation as an assisted living residence within one year of issuance of approval
or contingent approval of the application shall constitute an abandonment of the
application by the applicant and any approval or contingent approval issued by
the department shall be deemed cancelled and withdrawn. Licensure and
certification fees associated with applications that have not been implemented
are forfeited and will not be refunded.
(p) Licensure and other fees.
(1) Every assisted living residence shall pay a
non-refundable assisted living residence licensure fee upon initial licensure
application and biennially thereafter, following two years of licensed operation.
(i) Such fee shall be comprised of a base fee
per license issued or biennial license renewal, plus an additional fee for each
resident whose annual income is above 400 percent of the Federal poverty level
for the year in which the license is issued or renewed.
(ii) Such additional per resident fee shall be
based on the total occupied beds at the time of application, or at the time of
biennial license renewal, up to the maximum initial or biennial licensure fee set
forth in statute.
(iii) Applicants
must pay the per resident fee for every resident for whom they do not have
documentation that the resident's income is 400 percent or less than the Federal
poverty level. Residents who are eligible for Medicaid or Supplemental Security
Income payments are presumptively at or below 400 percent of the Federal poverty
level.
(iv) If the facility is under
construction at the time the initial licensure application is submitted, the
basic fee per license shall be paid at time of application. The additional fee
for each resident whose income is 400 percent or less than the Federal poverty
level shall be determined at the time that the license is approved.
(2) Every assisted living residence
that applies for an enhanced assisted living certificate or a special needs
assisted living certificate shall pay an additional non-refundable initial and
biennial fee, in addition to any other required licensure fee, in an amount set
forth in statute.
(3) All applicable
licensure and certification fees shall be paid prior to the processing and
approval of an application for licensure or certification or the biennial renewal
of such license and certification.
(4) Applicants must pay the licensure fees
provided for in this section for each adult home and/or enriched housing program
operating certificate that is to be issued, amended to include licensure as an
assisted living residence, certification as an enhanced assisted living
residence, or certification as a special needs assisted living residence, or
biennially renewed.
(5) The fees
referenced in this subdivision shall be in the amount or amounts specified in
statute. All such fees received by the department shall be
nonrefundable.