Sec. 1001.3. Certificates of incorporation; articles of organization

(a) Any proposed or existing not-for-profit corporation or business corporation desiring to file or amend a certificate of incorporation, and any proposed or existing limited liability company desiring to file or amend articles of organization for the purpose of establishing and operating an assisted living residence, enhanced assisted living residence or special needs assisted living residence shall, prior to filing with the Secretary of State, secure the written approval of the commissioner. A request for such approval shall be submitted to the department in accordance with the application procedures set forth in this Part.

(b) In no event shall any existing corporation or other entity hold itself out as being authorized to establish or operate, or to raise funds for the establishment or operation of, an assisted living residence, enhanced assisted living residence or special needs assisted living residence without having secured the prior written approval of the department.

(c) A request for approval of a certificate of incorporation or amendment thereto for the purpose of soliciting funds for the eventual establishment and operation of an assisted living residence, enhanced assisted living residence or special needs assisted living residence shall contain such information as may be required to determine that the corporation has the competency to develop and operate a residence in compliance with applicable law and regulations, and would be successful in raising funds necessary to establish the proposed residence within a period of not more than five years from the date of the department's approval. Such a request shall include:

(1) the certificate of incorporation and amendments thereto;

(2) a description of the governing structure of the proposed organization, including any governing board and advisory committees;

(3) an applicant profile for each member of the board of directors and the executive director or chief administrative officer, if any;

(4) a description of the type of residence, the anticipated location, capacity, population and services;

(5) statements of support from local governing bodies, elected officials, community service organizations and others potentially affected by the establishment of the proposed residence;

(6) statement of assets and liabilities, sources and amounts of working capital, loan commitments (including purpose, source, type and amount), anticipated revenues and expenses for the initial and second year;

(7) evidence that actual or potential financial resources for the establishment and operation exist and can be reasonably expected to be successfully raised within a period of not more than five years from the date of the department's approval;

(8) 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 Office of Children and Family Services, and the Office of Temporary and Disability Assistance, with which the applicant(s) is, or has been within the past 10 years an administrator, employee, incorporator, director, member, operator, sponsor, principal stockholder or owner;

(9) signed authorization allowing the commissioner or 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; and

(10) a certified corporation resolution of the board of directors authorizing the request, signed by an appropriately designated individual.

(d) A request from a proposed or existing not-for-profit corporation for approval of a certificate of incorporation or amendment thereto, for the purpose of soliciting funds on behalf of a separate entity that is an assisted living residence, enhanced assisted living residence or special needs assisted living residence, shall include those items listed in paragraphs (c)(1)-(3), and (8)-(10) of this section. In addition the requestor shall include a letter from the intended beneficiary acknowledging that it will accept funds raised by the requestor.

(e) A proposed or existing not-for-profit corporation which desires to file or amend a certificate of incorporation for the purpose of fundraising for the eventual establishment of an assisted living residence shall comply with the provisions of 18 NYCRR section 485.4 as well as the provisions set forth in this section.

(f)

(1) The department shall approve or disapprove a certificate of incorporation, or amendment to an existing certificate, articles of organization or amendment to an existing articles of organization, by either endorsement or by notice of disapproval.

(2) Any notice of disapproval shall be in writing and shall include the reasons for disapproval.