Current through Register Vol. 46, No. 12, March 20, 2024
(a) The operator of an
assisted living residence must provide, through its employees and agents, an
organized program of care, supervision and services which meets the standards set
forth in this Part; assures the protection of resident rights; and promotes the
social, physical and mental well-being of its residents.
(b) No entity shall establish, operate,
provide, conduct or offer assisted living in this State, or hold itself out as an
entity which otherwise meets the definition of assisted living or advertise
itself as assisted living or by a similar term, without obtaining the approval of
the department to operate as an adult home or enriched housing program pursuant
to title 2 of article 7 of the Social Services Law, obtaining the approval of the
department to operate as an assisted living residence pursuant to article 46-B of
the Public Health Law and this Part, and otherwise acting in accordance with this
Part. An entity may simultaneously apply for approval to operate as an adult home
or enriched housing program and as an assisted living residence pursuant to
article 46-B of the Public Health Law and this Part. This provision shall not
apply to assisted living programs approved by the department pursuant to section
461-1 of the Social Services Law.
(c) The knowing operation of an assisted living residence or
enhanced assisted living residence without the prior written approval of the
department shall be a Class A misdemeanor.
(d) The requirements of this Part shall be in addition to those
required of an adult care facility. In the event of a conflict between any
provision of article 46-B of the Public Health Law and a provision of article 7
of the Social Services Law or a regulation adopted thereunder, the applicable
provision of article 46-B of the Public Health Law and the applicable provision
of this Part which implements such statute shall supercede article 7 of the
Social Services Law or the applicable provision thereunder to the extent of such
conflict. The operator shall operate and maintain the residence in compliance
with the regulations of the department and with other applicable Federal, State
and local statutes and regulations.
(e)
(1) Upon
request by an applicant or operator, the department may waive nonstatutory
requirements of this Part. An applicant or operator must request and receive
written approval prior to operating in accordance with any waiver. Applications
for a waiver must be submitted in writing to the department and must include:
(i) the specific regulation for which a waiver
is sought;
(ii) the reason the waiver
is necessary; and
(iii) a description
of what will be done to achieve or maintain the purpose of the regulation to be
waived and to protect the health, safety and well-being of the
residents.
(2) Before
granting a waiver, the department may require that the applicant or operator make
physical plant modifications or adopt special methods or procedures to protect
resident health and safety and may grant written approval of a waiver request
only after making a determination that the proposed waiver will not adversely
affect the health, safety and well-being of the residents.
(3) This subdivision shall apply to requests
for a waiver under this Part unless a more specific waiver provision related to a
particular operating standard is specified elsewhere in this Part.
(4) The department shall make a determination
on a request for waiver within 90 days of receipt of all required information
from the applicant or operator.
(5)
The department may make a determination that an operational practice or procedure
for which a waiver is frequently granted is deemed to be a department-approved
regulation equivalency, that is, equivalent to the intent of the regulation
waived.
(6) An operator may submit
notification to the department of the operator's adoption of a
department-approved regulation equivalency, in accordance with department
protocols.
(7) Failure to adhere to
the terms of the approved waiver or regulation equivalency will result in
rescission of the approval and may result in a regulatory citation and imposition
of penalties for violation of the applicable regulation, in accordance with the
provision of section
1001.15 of this Part.
(8) During the period of a State disaster
emergency declared pursuant to section 28 of the Executive Law, the State
Commissioner of Health or their designee may suspend or modify any provision, of
parts thereof, of this Part, that is not otherwise required by State statute or
federal law, if compliance with such provisions, or parts thereof, would prevent,
hinder, or delay action necessary to cope with the state disaster emergency, or
if necessary to assist or aid in coping with such disaster. Such suspension or
modifications may include any modifications of regulation, exceptions,
limitations or other conditions as the Commissioner or their designee deems
appropriate and necessary to respond to the disaster emergency. Provided,
further, that should the Governor declare a State disaster emergency pursuant to
section 28 of the Executive Law, which suspends or otherwise modifies state
statutes pursuant to the Governor's authority under section 29-a of the Executive
Law, the Commissioner or their designee may suspend or modify any provision of
any regulation that is consistent with the statutory authority as modified or
suspended, for the period of such suspension or
modification.