N.Y. Comp. Codes R. & Regs. Tit. 18 § 485.6 - Application
(a) Approval to
operate an adult care facility, except for a shelter for adults addressed in
Part 491 of this Title, shall be granted only to an operator who satisfactorily
demonstrates and documents, on forms and in a manner prescribed by the
department, that:
(1) The operator:
(i) is of good moral character and standing
in the community;
(ii) has the
competence to effectively operate the proposed program;
(iii) has developed a facility and program of
operation which is in compliance with applicable law and regulations;
and
(iv) possesses sufficient
financial resources to successfully establish and operate the proposed program;
and
(2) There exists a
public need for the establishment and operation of the proposed
facility.
(3) If more than one
applicant proposes to establish an adult care facility in the same prescribed
geographic area or to serve the same population, approval shall not be based
solely on the date of application. The department will compare such factors as
demonstrated competence, financial feasibility, the adequacy of the proposed
program of care and services and the responsiveness of the application to the
public need.
(4) A public hearing
may be held by the department at its discretion to solicit comments and
recommendations regarding the proposed adult home.
(b)
Character and competence.
(1) Determination of the adequacy of the
applicant's character, competence and standing in the community of the proposed
program, shall be made on assessment and verification of the information
submitted by the applicant or solicited from other sources by the department,
and shall be based upon such factors as financial status, education,
experience, past or current performance in the management and operation of
adult care facilities or like services to dependent adults; past business
associations; letters of personal recommendation; information acquired through
credit review, review of related public documents, public comment, or
collateral contacts.
(2) If an
applicant is, or within the past 10 years has been, an incorporator, director,
operator, sponsor or principal stockholder of an adult-care facility, a
facility certified by the Department of Mental Hygiene or a residential health
care facility certified by the Department of Health, approval will be granted
only if the department affirmatively finds that a substantially consistent high
level of care is being or was being rendered in each such facility with which
the applicant is or was affiliated. There may be a finding that a substantially
consistent high level of care has been rendered where there have been
violations of applicable rules and regulations that did not threaten to
directly affect the health, safety or welfare of the patient or resident and
were promptly corrected and not recurrent.
(c)
Public need.
(1) In determining whether there is a public
need for adult home beds, the department must consider the following:
(i) the number of certified and occupied
adult home beds per 1,000 population 65 years of age or older in the area to be
served, as compared to the statewide average of the number of such beds per
1,000 population;
(ii) the number
of persons 65 years of age or older residing in the area to be served, and the
number of persons in receipt of SSI residing in adult homes in the area to be
served, as compared to statewide averages for each;
(iii) the percent of certified adult home
beds that are occupied in the area to be served, as compared to the statewide
average of occupied adult home beds;
(iv) the number of persons awaiting placement
into certified adult homes in the area to be served, as determined by the
department;
(v) recommendations
from the social services district and the local office for the aging in the
area to be served and a recommendation, if available, from the regional health
systems agency in the area to be served;
(vi) the availability of alternatives to
adult homes, including certified family-type homes for adults and home care
services in the area to be served; and
(vii) the number of certified beds per 1,000
population 65 years of age or older in the counties that are contiguous to the
county in which the proposed adult home would be located, and the number of
persons from contiguous counties who have moved into adult homes in the county
in which the proposed adult home would be located and the number of persons who
have moved from the county in which the proposed adult home would be located
into adult homes in contiguous counties; and
(viii) such other information as the
department may deem appropriate.
(2) In determining whether there is a public
need for residence for adults beds, the department must consider the following:
(i) the number of certified residence for
adults beds per 1,000 population 18 years of age or older in the area to be
served, as compared to the statewide average of the number of such beds per
1,000 population;
(ii) the number
of certified adult home beds occupied by persons who were discharged from
psychiatric institutions per 1,000 population 18 years of age or older in the
area to be served, as compared to the statewide average of the number of such
beds per 1,000 population;
(iii)
the availability of alternatives to residences for adults, including housing
certified by the Office of Mental Health in the area to be served;
(iv) the projected need for beds for mentally
disabled persons in the area to be served, as estimated by the Office of Mental
Health;
(v) recommendations from
the social services district and the local governmental unit designated
pursuant to section 41.05 of the Mental Hygiene Law in the
area to be served; and
(vi) such
other information as the department may deem appropriate.
(3) The department may deny an application
solely on the basis of a determination of lack of public need in advance of its
consideration of any other certification criteria, including, but not limited
to, the applicant's character and competence, architectural proposal, financial
resources and the financial feasibility of the proposal, without waiving its
right to consider such criteria at a later date.
(i) If the department denies an application
solely on the basis of lack of public need and the applicant requests an
administrative hearing to review that denial, the department, at its
discretion, may review the other certification criteria required by this
section and include the results as grounds for the denial to be considered at
the administrative hearing.
(ii)
Notice of any other grounds for the denial shall be mailed to the applicant at
least 30 days prior to the date set for the administrative hearing.
(4) Without consideration of
public need, the department may approve up to nine additional beds in any adult
home or residence for adults in any five-year period.
(5) The following types of situations are
excluded from determination of public need:
(i) applications related exclusively to a
change of operator;
(ii)
applications from the operator of a family-care home established under the
Mental Hygiene Law and in operation prior to September 1, 1975;
(iii) application from a social services
official to establish a public home;
(iv) construction or renovation designed to
replace, on a bed-for-bed basis, an existing adult-care facility or part
thereof for which the applicant holds a valid operating certificate. Such
replacement shall be limited to the certified capacity of the existing facility
and to the prescribed geographic area in which the existing facility was
originally certified.
(d) The applicant shall submit part I of an
application, which shall include:
(1) the
type, name, exact location and proposed capacity of the facility;
(2) unless otherwise excluded by paragraph
(c)(5) of this section, documentation of an unmet public need for the proposed
facility, including but not limited to:
(i)
demographic data on the proposed resident population-at-risk;
(ii) numbers of persons awaiting placement in
other like adult care facilities;
(iii) location, capacity and occupancy of
existing residential facilities and alternative services in the
community;
(3)
statements of support from local governing bodies, elected officials, community
service organizations and others potentially affected by construction or
expansion of the facility;
(4) in
the case of a not-for-profit corporation, the certificate of incorporation and
amendments thereto;
(5) in the case
of a partnership, a copy of the partnership agreement;
(6) a description of the governing structure
of the proposed organization, including any governing boards and advisory
committees;
(7) an applicant
profile for each individual or partner and for the officers of the board of
directors and, if applicable, the executive director or chief administrative
officer of a not-for-profit corporation;
(8) three current letters of reference from
nonrelated individuals qualified to assess the applicant's ability to
successfully operate a facility for each individual partner and for the
officers of the board of directors of a not-for-profit corporation;
(9) documentation of education, training and
experience that have prepared the applicant(s) to operate the proposed
facility;
(10) statement of assets
and liabilities, sources and amounts of working capital, loan commitments
(including purpose, source, type and amount), lease agreements, anticipated
revenues and expenses by operating division for the start-up, initial and
second year of operation and other evidence that actual financial resources
exist or can be successfully acquired to:
(i)
successfully establish the proposed facility within the time periods set by the
department;
(ii) insure financial
viability for the period of the initial operating certificate; and
(iii) operate the facility in compliance with
applicable law and regulations;
(11) a statement of real property ownership
information, which shall include:
(i) the
name and address and a description of the interest held by each of the
following persons:
(a) any person who,
directly or indirectly, beneficially owns any interest in the land on which the
facility is located;
(b) any person
who, directly or indirectly, beneficially owns any interest in the building in
which the facility is located;
(c)
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 land on which, or building in which, the facility is located;
and
(d) 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;
(ii) if any person named in
response to subparagraph (i) of this paragraph is a partnership, then the name
and address of each partner;
(iii)
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;
(iv) 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;
(v) for the purpose of
this paragraph, the term controlling person shall mean any
person who by reason of a direct or indirect ownership interest (whether of
record or beneficial) has the ability, acting either alone or in concert with
others with ownership interests, to direct or cause the direction of the
management or policies of said corporation, partnership or other entity.
Neither the department nor any employee of the department shall, by reason of
his or her official position, be deemed a controlling person of any
corporation, partnership or other entity or as a member of a board of directors
or trustees of any corporation be deemed to be a controlling person of such
corporation, partnership or other entity as a result of such position or his or
her official actions in such position. The term principal
stockholder shall mean any person who beneficially owns, holds or has
the power to vote, 10 percent or more of any class of securities issued by said
corporation;
(12) copies
of all lease and purchase agreements;
(13) a signed agreement between an enriched
housing operator and building manager if the applicant does not own or control
the building in which the enriched housing program is to be located. This
agreement shall outline the terms by which the enriched housing program will
operate within the building and shall contain, but not be limited to, a
statement from the building management which:
(i) grants approval for the enriched housing
program to operate within the building;
(ii) delineates the building space to be
available to the operator;
(iii)
describes the services to be provided by the building management; and
(iv) provides for six months' minimum notice
of termination of the agreement by either party;
(14) names and locations of each and every
facility licensed by the department, the Department of Mental Hygiene pursuant
to articles 19, 23 and 31 of the Mental Hygiene Law, the Department of Health
pursuant to article 28 of the Public Health Law, or of any facility which, if
located in New York State, would require such licensure with which the
applicant(s) is, or has been within the past 10 years, an operator,
administrator, employee, incorporator, director, sponsor, principal stockholder
or owner;
(15) a description of the
kinds of services to be provided to the proposed resident population;
(16) a description of the availability of
existing:
(i) recreational, social,
volunteer, religious and other community support services;
(ii) safety services, such as police and fire
protection;
(iii) health, mental
health and social support services;
(17) a preliminary staffing plan;
(18) a physical description of the facility,
including land, buildings and equipment;
(19) if new construction, renovation or
alteration is planned, architectural plans and specifications sufficient to
determine financial feasibility and compliance with physical plant
requirements;
(20) documentation of
compliance with applicable local ordinances;
(21) signed authorization allowing the
commissioner, his/her designees or agents, to undertake such investigations as
may be necessary to ascertain the validity of statements represented to the
department or to ascertain from independent sources the character, competence
and standing in the community of the applicant.
(e) The department shall make a determination
on a request for part I approval within 90 days of receipt of all required
information from the operator and all required recommendations and information
from local or State agencies or other sources. The operator shall be given
written notice of the decision of the department, and advised of the
availability of an administrative review in the event of an unfavorable
determination.
(f) Within 90 days
of notice of approval for part I, the applicant shall submit, on forms and in a
manner prescribed by the department, the following part II information:
(1) The applicant for an adult home or
residence for adults shall submit:
(i) a plan
for administration, including personnel policies and procedures, job
descriptions, staff orientation and in-service training, planned staffing
schedules;
(ii) the job
descriptions and, prior to employment, the qualifications for the administrator
and, if applicable, case manager and activities director;
(iii) a description of the proposed resident
services program, including all services the applicant proposes to provide,
admission and discharge policies, admission agreement, a statement of resident
rules, and resident record forms including personal allowance records and
procedures;
(iv) a description of
provision for special services if mentally disabled, physically handicapped
persons or persons with other special needs will be admitted to or are in
residence in the facility. This plan shall include specifications of special
activities and operating practices, adaptation of supervision, personal care
and other services, and evidence of cooperation and coordination with other
persons and agencies providing services to such residents;
(v) a disaster and emergency plan;
(vi) a description of food services,
including the kitchen and dining layout, equipment, the service system and
proposed menus;
(vii) a
housekeeping plan;
(viii) a
maintenance plan; and
(ix) a plan
for use of volunteers if volunteers are to be used in the facility.
(2) If applicable, complete
architectural plans and specifications for any planned construction, renovation
or alteration.
(g)
Within 90 days of notice of approval of part II of an application which
involves no construction or renovation, and at least 30 days prior to
anticipated occupancy, the applicant shall request a final facility inspection.
Such inspection shall not be conducted until requested modifications or changes
have been made; the qualifications of the proposed administrator and, if
applicable, case manager and activities director, have been submitted and
approved; actual staffing schedules and hiring is complete; and the applicant
can provide, at the time of inspection, written documentation of compliance
with local codes and ordinances.
(h) For an application which involves
construction or renovation, the applicant shall:
(1) within 90 days of the notice of approval
of part II, notify the department, in writing, of the date such construction or
renovation will start and of the anticipated completion date, which shall be
within 18 months of the date of part II approval; and shall submit copies of
all applicable construction or renovation contracts;
(2) submit a written report on the progress
of the construction or renovation every 90 days;
(3) at least 30 days prior to anticipated
occupancy, request a final architectural inspection. Such inspection shall not
be conducted until all fire protection systems are installed and operational,
and the applicant can provide written documentation of compliance with
applicable local codes and ordinances;
(4) at least 30 days prior to anticipated
occupancy, but following the architectural inspection, request a final facility
inspection. Such inspection shall not be conducted until requested
modifications or changes have been made; the qualifications of the proposed
administrator and, if applicable, case manager and activities director, have
been submitted and approved; actual staffing schedules and hiring is complete;
and the applicant can provide, at the time of inspection, written documentation
of compliance with local codes and ordinances.
(i) The department will notify the applicant
in writing of the need for any required or supplemental information. If the
applicant fails, at any point in the application process, to provide the
information, or to complete construction or renovation or other required
activities within the specified time period, the application may be denied for
failure to proceed.
(j) An
applicant may submit a written request for a 90-day extension of any of the
specified timetables. Extension may be granted upon determination that:
(1) the need for extension is caused by
circumstances beyond the applicant's control; and
(2) the need for extension is not caused by
the applicant's inability to secure financing.
(k) Upon determination by the department that
the proposed operator of a facility has satisfied all conditions specified in
the application and that the facility meets and will be operated in compliance
with department regulations, the department shall issue the operator an
operating certificate.
(l) If
during the review of any part of the application, the department determines
that the applicant should not be granted approval, the department shall give
written notice of disapproval which includes the reasons for
disapproval.
(m) An applicant or
operator may, in writing and in accordance with Part 343 of this Title, request
administrative review of a decision by the department under this
section.
(n)
Assisted living
program.
(1) Approval to operate an
assisted living program will be granted only to an applicant which
satisfactorily demonstrates and documents, on forms and in a manner prescribed
by the department, that the applicant is:
(i)
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 which possesses or is eligible, pursuant to this
Part, to apply for an adult care facility operating certificate; and
(ii) either an entity which possesses or is
eligible, pursuant to Title 10 NYCRR, to apply for:
(a) licensure as a home care services
agency;
(b) authorization as a
long-term home health care program; or
(c) a certificate of approval as a certified
home health agency.
(2) The applicant must comply with all
requirements of this Part, Part 494, and with applicable sections of article 36
of the Public Health Law and Title 10 NYCRR.
(3) An applicant proposing to operate an
assisted living program must submit an application to the department. The
department will transmit a copy of the application and accompanying documents
to the Department of Health.
(4)
The commissioner, after consultation with the Commissioner of the Department of
Health, will establish periods for the submission of assisted living program
applications. Such application submission periods shall be based upon the
public need for assisted living program beds, as determined by the Department
of Health. If such public need is determined to exist, application submission
periods shall be established at least annually. All applications received
during each such period will be processed and reviewed comparatively in a
group.
(5) In addition to the other
requirements of this Part, the application must include:
(i) documentation of existing certification
or application for certification as either an adult home or enriched housing
program and either:
(a) documentation of
existing licensure, or application for licensure, as a home care services
agency; or
(b) documentation of
existing certification or application for certification as a home health
agency; or
(c) documentation of
approval or application for approval as a long-term home health care
program;
(ii) a copy of
a proposed contract with a social services district in accordance with the
requirements of section
494.4(h)
of this Title;
(iii) if the
applicant is not a long-term home health care program or certified home health
agency, a copy of a proposed contract with a long-term home health care program
or certified home health agency for the provision of services;
(iv) a detailed description of the proposed
program including:
(a) the proposed number of
residents to be served by the program;
(b) the location of the program;
(c) the target population to be served by the
program;
(d) the budget for the
program;
(e) the staffing plans for
the program; and
(f) the operating
standards and services to be provided by the program; and
(v) the anticipated date of operation for the
program, or the anticipated number of days from issuance of department approval
to program operation.
(6) In addition to the standards contained in
other subdivisions of this section, applications to operate an assisted living
program will be evaluated on the following criteria:
(i) the appropriateness of the proposed
target population;
(ii) the extent
to which the program will admit and retain individuals whose care is paid for
at public expense;
(iii) the
relation of the proposed program to the target population;
(iv) the proposed number of
residents;
(v) the geographic
location of the proposed program;
(vi) the geographic distribution of existing
and proposed programs within a health systems agency region;
(vii) the public need for the assisted living
program and the particular type of adult care facility and the particular type
of home care program that the applicant intends to establish;
(viii) the extent to which the proposed
program will increase the supply of existing adult home or enriched housing
beds;
(ix) the character,
competence and standing in the community of the applicant;
(x) the financial responsibility of the
applicant;
(xi) the financial
feasibility of the program;
(xii)
the anticipated construction and operating costs;
(xiii) the anticipated date of operation of
the program;
(xiv) a description of
existing contracts, referral, or other service relationships with the social
services districts;
(xv) a
description of existing contracts, referral, or other service relationships
with other providers or services in the community to serve the residents of the
program; and
(xvi) the buildings,
equipment, staff, standards of care and records of the adult care facility to
be employed in the program must comply with applicable Federal, State and local
laws, rules and regulations.
(7) Applications will be rated in accordance
with the criteria in paragraph (6) of this subdivision and other requirements
of this Part, with first consideration given to applications which:
(i) commit to the admission and retention of
individuals eligible for or in receipt of supplemental security income, home
relief or medical assistance;
(ii)
will increase the supply of existing adult home or enriched housing beds;
and
(iii) demonstrate the ability
to commence service provision most quickly.
(8) An application for an assisted living
program will not be approved unless the commissioner has determined:
(i) that there is a public need for the
assisted living program and that the commissioner has received written notice
of approval of public need for the assisted living program from the
Commissioner of the Department of Health;
(ii) that the Commissioner of the Department
of Health has provided written notice of the Department of Health's approval
of:
(a) the applicant as either a licensed
home care service agency, certified home health agency or long-term home health
care program; and
(b) where
applicable, the public health council; and
(iii) that the assisted living program will
be operated in compliance with applicable Federal, State and local laws, rules
and regulations.
(9) The
commissioner or commissioner's designee must notify the applicant in writing of
whether the application to establish and operate an assisted living program has
been approved or disapproved, including, in the case of disapproval, the reason
for disapproval. The written approval of the commissioner or commissioner's
designee constitutes authorization to operate an assisted living
program.
(10) An applicant for
approval to operate an assisted living program who fails, neglects or refuses
to submit documentation or information requested by the department, within 30
days or such longer period as may be specified by the department, will be
deemed to have abandoned or withdrawn the application, and will receive written
notice of the same from the department.
(11) An applicant for approval to operate an
assisted living program who fails to submit complete or sufficient information
or documentation within 30 days or such longer period as may be specified by
the department will receive written notification that the application has been
disapproved.
(12) Notwithstanding
the provisions of subdivisions (h)(1) and (i) of this section, the failure,
neglect or refusal of an applicant to complete construction or renovation and
commence operation of an assisted living program within 18 months of issuance
of approval of the application by the department constitutes an abandonment of
the application and any such approval is deemed cancelled, withdrawn and
annulled, unless an extension has been granted pursuant to paragraph (13) of
this subdivision. The department will provide written notice of any such
cancellation, withdrawal or annulment to the applicant.
(13) An applicant may submit a written
request for a 90-day extension(s) of the timetable specified in paragraph (12)
of this subdivision. Extension(s) may be granted upon a determination by the
department that:
(i) the need for extension is
caused by circumstances beyond the applicant's control; and
(ii) the need for extension is not caused by
the applicant's inability to secure financing.
Notes
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