N.Y. Mental Hygiene Law § 16.05: Issuance of operating certificates

§ 16.05 Issuance of operating certificates.

(a)(1) Application for an operating certificate shall be made upon

forms prescribed by the commissioner.

(2) Application shall be made by the person or entity responsible for

operation of the facility or provider of services as described in

subdivision four of section 16.03 of this article. Applications shall be

in writing, shall be verified and shall contain such information as

required by the commissioner.

(b) Notice of an application for an operating certificate shall be

forwarded by the office to the appropriate local governmental unit in

the area to be served and the local health planning agency.

(c) No operating certificate shall be issued by the commissioner

unless the commissioner is satisfied as to:

(1) The public need for the facility or services to be established

upon issuance of the operating certificate;

(2) The character, competence and standing in the community of the

person or entity responsible for operating the facility or providing

services;

(3) The financial resources of the proposed facility or provider of

services and its sources of future revenues;

(4) The adequacy of the premises, equipment, personnel and program to

provide the services which would be authorized by the operating

certificate;

(5) The commissioner may deny an operating certificate to any operator

who, within ten years of the date of application, has been denied

renewal for cause of an operating certificate, or who has had an

operating certificate revoked or suspended for cause, and such denial,

revocation or suspension was not reversed after an administrative

hearing or other appeal, for a program or facility licensed or operated

by a health, mental hygiene, social services or education agency or

department of this or any state or who has failed to operate a program

serving the mentally disabled, other disabled persons as defined in

subdivision twenty-one of section two hundred ninety-two of the

executive law, the aged, children or other persons receiving health,

mental hygiene, residential, social or educational services in

continuous compliance with applicable laws or regulations within the

previous ten years in any state;

(6) In the case of residential facilities, that arrangements have been

made with other providers of services for the provision of health,

habilitation, day treatment, education, sheltered workshop,

transportation or other services as may be necessary to meet the needs

of individuals who will reside in the facility; and

(6-a) In the case of a provider of services seeking to provide nursing

tasks by non-licensed persons authorized to provide such tasks pursuant

to subparagraph (v) of paragraph a of subdivision one of section

sixty-nine hundred eight of the education law, that such provider will

provide services and perform tasks in a safe and competent manner and

will fully comply with the requirements of such subparagraph and any

memorandum of understanding between the office and the state education

department pursuant to such subparagraph. Any operating certificate

subject to this paragraph shall specify that the provider of services is

authorized to provide these nursing services.

(7) Such other matters as the commissioner shall deem pertinent in the

public interest.

(d) No operating certificate shall be renewed by the commissioner

unless the commissioner is satisfied as to:

(1) the financial resources of the proposed facility or provider of

services and its sources of future revenues;

(2) the adequacy of the premises, equipment, personnel and program to

provide the services which would be authorized by the operating

certificate;

(3) the ability of the operator to provide the services required by

the operating certificate as demonstrated by the operator's compliance

with applicable laws and regulations within the previous ten years;

(4) in the case of residential facilities, that arrangements have been

made with other providers of services for the provision of health,

habilitation, day treatment, education, sheltered workshop,

transportation or other services as may be necessary to meet the needs

of individuals who will reside in the facility; and

(5) such other matters as the commissioner shall deem pertinent in the

public interest.

(e) The commissioner may disapprove an application for an operating

certificate, may authorize fewer services than applied for, and may

place limitations or conditions on the operating certificate including,

but not limited to compliance with a time limited plan of correction of

any deficiency which does not threaten the health or well-being of any

individuals. In such cases the applicant shall be given an opportunity

to be heard, at a public hearing if requested by the applicant.

(f) Operating certificates shall be valid for up to a three-year

period as shall be expressly provided upon such certificate or renewal

thereof. No application fee shall be required for an application for

issuance or renewal of an operating certificate.

(g) The commissioner shall specify on each operating certificate the

kind or kinds of services authorized, any limitations or conditions of

the certificate and the expiration date of the certificate.

(h) Operating certificates shall not be transferable.

(i) In the event that the holder of an operating certificate for a

residential facility issued by the commissioner pursuant to this article

wishes to cease the operation or conduct of any of the activities, as

defined in paragraph one or four of subdivision (a) of section 16.03 of

this article, for which such certificate has been issued or to cease

operation of any one or more of facilities for which such certificate

has been issued; wishes to transfer ownership, possession or operation

of the premises and facilities upon which such activities are being

conducted or to transfer ownership, possession or operation of any one

or more of the premises or facilities for which such certificate has

been issued; or elects not to apply to the commissioner for

re-certification upon the expiration of any current period of

certification, it shall be the duty of such certificate holder to give

to the commissioner written notice of such intention not less than sixty

days prior to the intended effective date of such transaction. Such

notice shall set forth a detailed plan which makes provision for the

safe and orderly transfer of each person with a developmental disability

served by such certificate holder pursuant to such certificate into a

program of services appropriate to such person's on-going needs and/or

for the continuous provision of a lawfully operated program of such

activities and services at the premises and facilities to be conveyed by

the certificate holder. Such certificate holder shall not cease to

provide any such services to any such person with a developmental

disability under any of the circumstances described in this section

until the notice and plan required hereby are received, reviewed and

approved by the commissioner. For the purposes of this paragraph, the

requirement of prior notice and continuous provision of programs and

services by the certificate holder shall not apply to those situations

and changes in circumstances directly affecting the certificate holder

that are not reasonably foreseeable at the time of occurrence,

including, but not limited to, death or other sudden incapacitating

disability or infirmity. Written notice shall be given to the

commissioner as soon as reasonably possible thereafter in the manner set

forth within this subdivision.

(j) Notwithstanding any other provision of this chapter, except in the

case of family care, the commissioner may issue one operating

certificate for two or more facilities in the same program class

operated by the same person or entity.