Current through Register Vol. 46, No. 39, September 25, 2024
(a) This
section shall apply to all adult-care facilities excluding shelters for adults,
which are addressed in Part 491 of this Title.
(b) Only a natural person or partnership
composed only of natural persons, a not-for-profit corporation, a public
corporation, a social services district or other governmental agency may be
issued an operating certificate by the department for the purpose of operating
an adult care facility. Family-type homes for adults may be issued an operating
certificate only if the operator is a natural person or persons. Enriched
housing programs may be issued an operating certificate only if the operator is
a public agency, public corporation or a not-for-profit corporation.
(c) An operating certificate for an adult
care facility subject to this section shall:
(1) specify the name and location of the
facility, the name of the operator, the type of facility and services to be
provided, the capacity of the facility, any conditions or limitations and the
duration of the certificate;
(2) be
nontransferable; and
(3) remain the
property of the department.
(d) An operating certificate shall not be
issued for a period in excess of four years. The department may issue an
operating certificate for a period of less than four years.
(e) No facility shall be operated other than
in accord with the terms and conditions of the operating certificate and the
regulations of this Title pertaining to the specified type of
facility.
(f) No operator shall,
for purposes of advertisement, represent the facility by any designation or
terminology other than that which is contained on the operating
certificate.
(g) No operator shall
change or modify a facility, or the services originally approved and stipulated
by the operating certificate, without the prior written approval of the
department.
(h) An operator shall
not, without the prior written approval of the department:
(1) transfer responsibility for operation of
the facility to another person or entity; or
(2) change the composition of a
partnership.
(i) An
operator of a not-for-profit corporation must annually provide to the
department in writing the names and addresses of the current members of the
board of directors.
(j) No person,
corporation, home, institution, hotel or other residential facility or
accommodation, other than a facility or agency which possesses a valid
operating certificate, as required under the provisions of this Title, the
Mental Hygiene Law or Public Health Law, shall hold itself out, advertise, or
otherwise in any form or manner represent that it is a facility offering
accommodations and services for dependent, aged or disabled adults.
(k) In the event that an operator elects to
close a facility subject to this section and to surrender an operating
certificate:
(1) The operator shall notify the
appropriate regional office of the department in writing at least 120 days
prior to the anticipated date of closure.
(2) Such written notice shall include a
proposed plan for closure. The plan shall be subject to department approval and
shall include timetables and shall describe the procedures and actions the
operator will take to:
(i) notify residents
of the closure, 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 facility prior to department approval of the plan for
closure.
(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.
(5) Failure to
notify the department of intent to cease operations, failure to submit an
approvable plan, to execute the approved plan, or closure before all residents
have been appropriately relocated, may result in the imposition of civil
penalties.
(l) In the
event of the death of the operator of a private proprietary adult care
facility, the department may give approval to a plan submitted by the remaining
partners, the operator's spouse or executor for the continued operation of the
facility, 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 facility. 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 facility shall continue only while the facility is in compliance
with regulations.
(m) The operating
certificate of any facility 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 facility.
Parts 486 and 343 of this Title shall apply.
(n) The department may revoke, suspend,
modify, or limit an operating certificate of a shelter for adults, residence
for adults or adult home upon determining that:
(1) such action would be in the public
interest because:
(i) in the case of
revocation, suspension or limitation, such action would conserve resources by
restricting the number of beds, or the level of services, or both, to those
beds or services which are actually needed, after taking into consideration the
total number of beds necessary to meet the public need, and the availability of
facilities or services such as ambulatory, home care or other services which
may serve as alternatives or substitutes for the services provided by a
residence for adults or adult home; and
(ii) in the case of modification, the level
of care and the nature and type of services provided by a facility or required
by all or some of the individuals seeking admission to such facility or
required by all or some of the residents of such a facility, is inconsistent
with the operating certificate of the facility.
(2) Whenever the department proposes to
revoke, suspend, modify or limit an operating certificate with respect to any
particular facility based upon any of the factors set forth in paragraph (1) of
this subdivision, the department must publish in a newspaper of general
circulation in the geographic area of the facility at least 30 days prior to
making such a determination an announcement that such a determination is under
consideration and an address to which interested persons can write to make
their views known. The facility may request a public hearing, to be held in the
county in which the facility is located, to discuss the department's proposed
action. The department must take all public comments into consideration in
making its determination.
(3) The
department must, upon making a determination described in this subdivision with
respect to any facility, notify such facility of the determination at least 30
days in advance of taking the proposed action to revoke, suspend, modify or
limit the facility's operating certificate. The department must schedule an
administrative hearing to provide the facility with an opportunity to contest
the department's determination. In no event will the revocation, suspension,
modification or limitation take effect prior to the 30th day after the date of
the notice or prior to the effective date specified in the notice or prior to
the date of the hearing decision, whichever is later.
(o) The operating certificate of any facility
shall be revoked, suspended or limited if an operator is:
(1) unable, by reason of loss of access or
loss of right of possession to a facility, to continue to operate as
certified;
(2) unable, by reason of
catastrophe such as fire or flood, to operate as certified for a period in
excess of 60 days.
(p)
(1) The operating certificate of any facility
may be revoked, suspended or limited, or an application for an operating
certificate denied, if an individual operator, or a member of the board of
directors, the executive director or chief administrative officer of a
not-for-profit operator is or has been within 10 years:
(i) convicted of a class A, B or C
felony;
(ii) convicted, in another
state or in Federal court, of a crime which would, if committed in New York
State, be considered a class A, B or C felony; or
(iii) convicted of a felony or class A
misdemeanor related to the provision of care to dependent adults or
children.
(2) Such
revocation, suspension or limitation of an operating certificate, or denial of
an application for an operating certificate, must be preceded by a
determination that:
(i) there is a direct
relationship between one or more of the criminal convictions and the fitness of
the individual to perform related duties or responsibilities; or
(ii) granting the individual a license would
involve an unreasonable risk to property or to the safety or welfare of
specific individuals or the general public.
(q) Each of the following factors must be
considered in determining whether the findings stated in subparagraphs
(o)(2)(i) and (ii) of this section.
(1) the
public policy of the State to encourage the licensure of persons previously
convicted of one or more criminal offenses;
(2) the specific duties and responsibilities
necessarily related to the license sought or held by the person;
(3) the bearing the criminal offense or
offenses for which the individual was previously convicted will have on his or
her fitness to perform related duties or responsibilities;
(4) the time which has elapsed since the
occurrence of the criminal offense or offenses;
(5) the age of the individual at the time of
the occurrence of the criminal offense or offenses;
(6) the seriousness of the criminal offense
or offenses;
(7) any information
produced by the individual to demonstrate rehabilitation and good conduct,
including but not limited to a valid certificate of relief from disabilities or
certificate of good conduct issued in accordance with the State Correction Law;
and
(8) the interest of the
department in protecting the safety and welfare of residents or potential
residents of adult care facilities, as well as the general public.
(r) Any operating certificate
issued by the commissioner to the operator of an adult care facility 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.
(s) Continuation of facility operation after
revocation, suspension or limitation of an operating certificate shall be the
basis for imposition of sanctions in accordance with Part 486 of this
Title.
