N.Y. Public Health Law § 4653*2: Licensure procedures and requirements for assisted living

* § 4653. Licensure procedures and requirements for assisted living.

1. In order to operate as assisted living, an operator shall be

licensed as an adult home or enriched housing program and apply and be

approved for licensure with the commissioner pursuant to this article.

The operator shall provide, on an application form developed by the

commissioner, the following information to the commissioner in order to

be licensed:

(a) business name, street address, and mailing address of the

residence and of the owners of the residence;

(b) status of current operating certificate;

(c) verification that the operator has a valid residency agreement in

compliance with this article to be entered into with each resident,

resident's representative and resident's legal representative, if any,

and shall include a copy of the information to be included in the

residency agreement and disclosures as required pursuant to the

provisions of section four thousand six hundred fifty-eight of this

article, as added by chapter two of the laws of two thousand four, that

will be given to prospective residents; and

(d) any other information the department may deem necessary for the

evaluation of the application provided such information is not

duplicative of what is otherwise required of the applicant in obtaining

an adult care facility license.

2. For existing licensed operators in good standing and their

affiliates, the department shall develop a streamlined application

review and approval process, in collaboration with representatives of

associations of operators, to be available for use in relation to

approval of an additional facility of the same type. Notwithstanding any

provision of law or regulation to the contrary, the streamlined

application review and approval process shall include, but not be

limited to, the following:

(a) a certification process and form for the operator or its affiliate

to attest that it will have sufficient financial resources, revenue and

financing to meet facility expenses and resident needs, which shall

satisfy the statutory and regulatory financial component of the

application review and approval process;

(b) a certification process and form for the operator or its affiliate

to attest that its legal, corporate and organizational documents comply

in substance with department requirements, which shall satisfy the

statutory and regulatory legal component of the application review and

approval process;

(c) a certification process and form for the operator or its affiliate

to attest that it is in substantial compliance with all applicable

codes, rules and regulations in any other state in which it operates,

and to disclose any enforcement or administrative action taken against

it in any other state;

(d) issuance by the department of a conditional approval to operate

the facility for a specified period of time upon substantial completion

of the character and competence, legal, financial and architectural

components of the application, so long as the operator or its affiliate

agrees in writing to satisfy all pending conditions prior to the

expiration of the conditional approval period or a time frame

established by the department;

(e) issuance by the department of a conditional approval to construct

a facility, at the operator's or its affiliate's own risk, upon

substantial completion of the architectural component of the

application;

(f) elimination of duplicative submission and review of any

application information which has been previously reviewed and approved

by the department or any of its regional offices within the past two

years through a certification process and form whereby the operator or

its affiliate will attest that such application information is

duplicative;

(g) with respect to any programmatic application information to be

reviewed by the regional office, such review shall be conducted on-site

by the regional office during the pre-opening inspection or first full

annual inspection, if the department has previously approved the

operator or its affiliate to operate the same type of program at another

facility within the past two years;

(h) electronic submission of applications; and

(i) a combined application for licensure as an adult care facility,

assisted living residence and/or assisted living program, to the extent

the department determines such a combined application is feasible.

2-a. For purposes of subdivision two of this section, "affiliate"

shall mean an entity, for which a majority of the ownership or

controlling interest is the same as the ownership or controlling

interest in an existing licensed operator under this section (provided

that an affiliate may have different percentages of ownership or control

or fewer natural persons with ownership or control than an existing

licensed operator) and, further:

(a) for any entity owned, directly or indirectly, by natural persons:

(i) at all times, more than half of the ownership interest of the

entity shall be owned, directly or indirectly, by natural persons who

have previously been determined to have undergone a satisfactory

determination of character, competence and standing in the community;

(ii) at all times, any owner with a direct or indirect ownership

interest who has not undergone a satisfactory determination of

character, competence and standing in the community review must possess

a less than ten percent direct or indirect interest in the entity, until

a satisfactory determination has been made; and

(iii) for any natural person proposed to be an owner, directly or

indirectly, of the entity who is a controlling person, as defined in

section four hundred sixty-one-b of the social services law, or is a

member, director, or officer of an existing licensed operator under this

section, such existing licensed operator must be in good standing with

the department; and

(b) for any not-for-profit corporation or other entity not under

paragraph (a) of this subdivision:

(i) more than half of the entity's total board members, directors,

officers and controlling persons, as defined in section four hundred

sixty-one-b of the social services law, shall have previously undergone

a satisfactory determination of character, competence and standing in

the community; and

(ii) if any natural person proposed to be a board member, director, or

officer of the entity has an ownership interest, directly or indirectly,

or is a board member, director, officer, or controlling person, as

defined in section four hundred sixty-one-b of the social services law,

in an existing licensed operator under this section, such existing

licensed operator must also be in good standing with the department.

2-b. For purposes of subdivision two of this section, "good standing"

shall mean the operator and its affiliate 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 seven of section four

hundred sixty-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 two of paragraph (b)

of subdivision seven of section four hundred sixty-d of the social

services law; (iv) within the previous three years, been issued an order

pursuant to subdivision two, five, six, or eight of section four hundred

sixty-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 fifteen of section four hundred

sixty-d of the social services law. Provided, however, that in the case

of an operator or affiliate that is not in good standing as provided in

this paragraph, the department may permit the operator or affiliate to

use the streamlined application process, in its discretion, if it

determines that the disqualifying violation was an isolated occurrence

that was promptly corrected by the operator or affiliate.

* NB There are 2 § 4653's