Sec. 1001.5. Applications for licensure as an assisted living residence; certification as enhanced assisted living and special needs assisted living

(a) The following standards will apply to applicants for licensure as an assisted living residence and certification as enhanced assisted living and special needs assisted living, in addition to those contained in 18 NYCRR section 485.6 unless expressly provided otherwise in this section.

(b) In order to operate an assisted living residence, an operator must be licensed as an adult home or enriched housing program. Applications for licensure as an assisted living residence must be filed with the department.

(1) Applications may be filed simultaneously with an application for licensure as an adult home or enriched housing program.

(2) Applications for assisted living licensure must include all licensed adult home or enriched housing program beds on the facility's operating certificate, or in the same building, excluding assisted living program beds.

(c) In order to operate as enhanced assisted living or special needs assisted living, an operator must be licensed as an assisted living residence, and must obtain additional certification as either enhanced assisted living or special needs assisted living.

(1) Assisted living residences may apply for enhanced and/or special needs assisted living certification for either all or a portion of their licensed beds.

(2) Certified special needs assisted living beds must be located in a fixed area within a building. They cannot "float," i.e., be designated within the building as the need arises.

(3) Enhanced assisted living beds may float, but the number of beds designated as enhanced assisted living beds and the number of residents receiving enhanced assisted living services may not exceed the number of such beds on the facility's operating certificate. An applicant that proposes to use such floating beds must describe in its application how it will ensure that all applicable program and structural requirements of regulation will be met.

(d) An application for licensure as an assisted living residence or for certification as enhanced assisted living or for certification as special needs assisted living shall be submitted in writing on application forms provided by the department. Such application shall be subscribed by the chief executive officer or other officer duly authorized by the board of a corporate applicant, the managing member of a limited liability company, a general partner or proprietor of the proposed residence, or, where an application is to be submitted by a local governmental applicant, the president or chairman of the board of the proposed facility or the chief executive officer if there is no board. The application shall be accompanied by a certified copy of a resolution of the board of a corporate applicant authorizing the undertaking which is the subject of the application, and the subscribing and submission thereof by an appropriately designated individual. In the event that an application is to be submitted by an entity which necessarily remains to be legally formed, it shall be subscribed and submitted by one of the proposed stockholders, directors, members, or another appropriately designated person. If a local governmental applicant submitting an application has not designated a president, chairman or chief executive officer for the proposed facility, the application shall be subscribed by the chairman or president of the local legislature or board of supervisors having jurisdiction, or other appropriate executive officer.

(e) The department may grant approval for licensure or certification pursuant to this Title only to an applicant who satisfactorily demonstrates:

(1) that such applicant possesses a valid operating certificate to operate as an adult home or enriched housing program. An applicant that does not currently possess such operating certificate as an adult home or enriched housing program may simultaneously apply and be approved for such certificate and all other licenses and certifications authorized under this Title;

(2) that such applicant which has an existing valid adult home or enriched housing program operating certificate is in good standing with the department. For purposes of this section, the term applicant shall include proposed incorporators, directors, members, sponsors, sole proprietors or partners of the operator or proposed operator. In accordance with Public Health Law, section 4656(3)(b), applicants that are in good standing are those who 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 (7) of section 460-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 (2) of paragraph (b) of subdivision (7) of section 460-d of the Social Services Law;

(iv) within the previous three years, been issued an order pursuant to subdivision (2), (5), (6), or (8) of section 460-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 (15) of section 460-d of the Social Services Law.

In the case of an applicant which otherwise meets the requirements of this section, but is not in good standing as provided in this paragraph, the department may approve such applicant if it determines that the applicant is of good moral character and is competent to operate the residence. As part of the review provided pursuant to this section, the department shall, on its website, solicit and consider public comment with respect to all applications submitted;

(3) that the applicant has adequate financial resources to provide such assisted living as proposed;

(4) that the building, equipment, staff, standards of care and records to be employed in the operation comply with applicable statutes and any applicable local law;

(5) that any license or permit required by law for the operation of such residence has been issued to such operator; and

(6) that in the case of an applicant which does not have an existing valid adult home or enriched housing program operating certificate as of the time of submission of the application for licensure as an assisted living residence, such applicant complies with the provisions for certification as prescribed by article 7 of the Social Services Law.

(f) A review of character and competence pursuant to 18 NYCRR section 485.6(a)(1)(i) and (ii) shall be conducted for:

(1) applicants who have an existing valid adult home or enriched housing program operating certificate who are not in good standing pursuant to this section; and

(2) applicants who do not have an existing valid adult home or enriched housing program operating certificate at the time of submission of the application for licensure as an assisted living residence.

(g) General requirements.

Applications shall contain information and data with reference to:

(1) the financial resources and sources of future revenue of the facility to be operated by the applicant;

(2) the fitness and adequacy of the premises and equipment to be used by the applicant for the proposed facility;

(3) plan for administration;

(4) services to be offered;

(5) provision of required consumer information as set forth in sections 1001.7 and 1001.8 of this Part;

(6) the following legal documentation:

(i) a certified copy of the applicant's certificate of doing business, if any;

(ii) evidence of site control, such as a deed, lease or a use agreement;

(iii) management or consulting agreement, if any, which shall be in accordance with the provisions of section 1001.16 of this Part;

(iv) where the applicant is a partnership, full and true copies of all partnership agreements, which shall include the following language:

“By signing this agreement, each member of the partnership created by the terms of this agreement acknowledges that the partnership and each member thereof has a duty to report to the New York State Department of Health any proposed change in the membership of the partnership. The partners also acknowledge that the prior written approval of the Department of Health is necessary for such change before such change is made, except that a change resulting from an emergency caused by the severe illness, incompetency or death of a member of the partnership shall require immediate notification to the Department of Health of such fact and application shall be made for the approval of such change within 30 days of the commencement of such emergency. The partners also acknowledge that they shall be individually and severally liable for failure to make the aforementioned reports and/or applications.”

(v) where the applicant is a corporation:

(a) a photocopy of the executed proposed certificate of incorporation or certificate of amendment to the certificate of incorporation, containing purposes which authorize the establishment and operation of an assisted living residence and, if applicable, an enhanced assisted living residence or a special needs assisted living residence, in accordance with the provisions of section 1001.3 of this Part, subject to the prior written approval of the department;

(b) a certified copy of the resolution of the board of directors authorizing the submission of the application and the subscribing and submission thereof, by an appropriate designated individual;

(c) bylaws of the corporation;

(vi) where the applicant is a business corporation:

(a) an affidavit from each shareholder that he or she is to be the sole beneficial owner of the shares for which he or she is to be the owner of record; the number of voting shares of which he or she is to be owner of record; and that all stock authorized by the certificate of incorporation will be issued and outstanding;

(b) the total number of outstanding (not issued) shares of the corporation;

(c) a statement that the shares are not traded on a national securities exchange and are not regularly quoted on a national over-the-counter market; that the corporation is not a subsidiary of a corporation whose shares are traded on a national exchange or over-the-counter market; and that no stock of the corporation is owned by another corporation;

(d) stock certificates of the corporation shall state that: no person may own any share of or have any voting rights in the corporation, unless approved by the department; and that any transfers, assignments or other dispositions of shares or voting rights must be approved by the department;

(vii) where the applicant is a limited liability company, the application must include the following documentation:

(a) a photocopy of the applicant's fully executed articles of organization, and any amendments thereto, containing purposes which authorize the establishment and operation of an assisted living residence and if applicable, an enhanced assisted living residence or a special needs assisted living residence, in accordance with the provisions of section 1001.3 of this Part, subject to the prior written approval of the department;

(b) a photocopy of the applicant's fully executed operating agreement;

(c) identification of all members of the applicant and the percentage of membership interest of each;

(d) a statement that the LLC is an eligible LLC under the provisions of Social Services Law, section 461-b(1)(a) as follows: a statement as to whether any of the members identified in clause (vi)(b) of this paragraph is a corporation, an LLC or a partnership. If the LLC has any member that is a corporation, identification of all shareholders of each member corporation and a statement that all members of each member corporation are natural persons. If the LLC has any member that is an LLC, identification of each member of the member LLC and a statement that all members of the member LLC are natural persons. If the LLC has any members that are partnerships, identification of each member of the member partnership and a statement that all members of the member partnership are natural persons;

(e) if the applicant has any business corporation members:

(1) fully executed copies of their certificates of incorporation which must include sufficient powers and purposes to own membership interests in the applicant LLC; and

(2) identification of all officers, directors and stockholders;

(f) if the applicant has any not-for-profit corporation members, fully executed copies of their certificates of incorporation and bylaws which must include sufficient powers and purposes to own membership interests in the applicant LLC;

(g) if the applicant has any LLC members:

(1) fully executed copies of their articles of organization;

(2) fully executed copies of their operating agreements; and

(3) identification of all members and managers.

The articles of organization and the operating agreement of such member LLC must provide that: all of the "second tier" LLC members shall be natural persons; and that any transfer, assignment or other disposition of membership interests or voting rights must have the prior approval of the New York State Department of Health;

(h) if the applicant has any general partnership members:

(1) fully executed copies of their partnership agreements; and

(2) identification of all partners;

(3) identification of all managers of the applicant;

(i) if the applicant will be managed by managers who are not members, a photocopy of the proposed management agreement between the applicant and the manager;

(j) if the LLC will be managed by managers who are not members, that the following powers are reserved to the members:

(1) direct independent authority over the appointment of the administrator, approval of all other persons working in the facility and dismissal of all persons working in the facility;

(2) approval of facility operating and capital budgets and independent control of the books and records including that all facility accounts and billing must be in the name of, on behalf of and for the benefit of the operator;

(3) adoption or approval of facility operating policies and procedures and independent adoption of policies affecting the delivery of facility services;

(4) authority over the disposition of assets and authority to incur liabilities not normally associated with day-to-day operations;

(5) approval of facility debt necessary to finance the cost of compliance with operational or physical plant standards required by law;

(6) approval of contracts; and

(7) approval of settlements of administrative proceedings or litigation to which the facility is a party;

(7) information on the ownership of the property interests in such facility, including: the name and address and a description of the interest held, or proposed to be held, by each of the following persons:

(i) any person who, directly or indirectly, beneficially owns any interest in the land on which the facility is located;

(ii) any person who, directly or indirectly, beneficially owns any interest in the building in which the facility is located;

(iii) 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 equipment used in the facility, or by the land on which or the building in which the facility is located;

(iv) 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;

(v) any person who, directly or indirectly has any interest as a lessor or lessee in any lease or sublease of the equipment used in the building in which the facility is located; if any person named in response to paragraph (1) of this subdivision is a partnership, then the name and address of each partner;

(vi) 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; and

(vii) 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;

(8) any other information requested by the department that the department may deem necessary for the evaluation of the application, provided the information is not duplicative of what is otherwise required of the applicant in obtaining an adult care facility operating certificate.

(h) The applicant shall provide any information and documentation requested by the department within 60 days of such request, unless the applicant obtains from the department an extension of the time in which to provide such information or documentation. Any request for such extension of time shall set forth the reasons why such information or documentation could not be obtained within the prescribed time. The granting of such extension of time shall be at the discretion of the department, provided such extensions are not for more than 60 days and the department is satisfied as to the reasons why such information or documentation could not be obtained within the prescribed time. The department is authorized to deny a request for an extension of time. Failure to provide such information or documentation within the time prescribed may constitute an abandonment and withdrawal of the application by the applicant.

(i) Application requirements for enhanced assisted living certification.

An application for enhanced assisted living certification shall also include a plan which sets forth how the additional needs of residents will be safely and appropriately met at the enhanced assisted living residence. Such plan shall include, but need not be limited to:

(1) a written description of services;

(2) staffing levels;

(3) staff education and training;

(4) work experience of individuals (operator's staff or contractors) who will provide services to residents; and

(5) any environmental modifications that will be made to protect the health, safety and welfare of the residents.

Such plan must be in accordance with the requirements set forth in this Part.

(j) Application requirements for special needs assisted living certification.

An application for special needs assisted living certification shall also include a special needs plan setting forth how the special needs of such residents will be safely and appropriately met at such residence. Such plan shall include, but need not be limited to:

(1) a written description of specialized services;

(2) staffing levels;

(3) staff education and training;

(4) work experience of individuals (operator's staff or contractors) providing services to residents;

(5) professional affiliations or special characteristics relevant to serving persons with special needs; and

(6) any environmental modifications that have been or will be made to protect the health, safety and welfare of such persons in the residence.

Such plan must be in accordance with the requirements set forth in this Part.

(k) Expedited application for additional enhanced or special needs ALR beds.

A certified operator of enhanced or special needs assisted living may apply, on an expedited basis, for department approval of up to five additional beds to serve current residents of the operator's licensed residence who would be appropriate for residence in such certified setting. Such application shall be submitted on a form provided by the department, which shall include a narrative setting forth the need for such beds, documentation that the residence can add such beds in accordance with applicable structural and environmental standards, and such additional information as the department deems necessary. The department shall respond to such applications for approval within 30 days of receiving all necessary information from the operator.

(l) Amendments to applications.

An application may be amended while the application is pending before the department.

(1) Any amendment to an application which constitutes a substantial change in the information contained in the original application, or any prior amendments thereto, must be accompanied by a satisfactory written explanation as to the reason such information was not contained in the original application.

(2) Prior to issuance of a license, any change as set forth in this subdivision shall constitute an amendment to the application and the applicant shall submit appropriate documentation as may be required in support of such amendment. The approval of the department must be obtained for any amended application.

(m) Administrative withdrawal of applications by the department.

(1) At any time during the application review and approval process, the department may request an applicant to submit information that is missing from the application; to submit information in addition to that described in this section and/or on the application form; or to submit more current information than that in its application. Applicants must submit such information within 60 calendar days of being notified by the department that such information is required. If the applicant fails to submit the required information by the end of the 60-day period, the application may be administratively withdrawn without prejudice to the applicant; provided, however, all fees will be forfeited and will not be refunded. Applications submitted by the applicant subsequent to such administrative withdrawal will be processed as new applications. All applicable fees will apply.

(2) The department may notify the applicant that it is required to modify the information in its application in order to ensure that the facility, ownership, operations, physical plant, etc., are in compliance with all applicable Federal, State and local statutes, rules and regulations. The department may administratively withdraw the application if the applicant fails to modify its application as directed by the department within 60 calendar days of such notification. All fees will be forfeited and will not be refunded. Applications submitted by the applicant subsequent to such administrative withdrawal will be processed as new applications. All applicable fees will apply.

(n) Withdrawals of applications by the applicant.

(1) Licensure and certification fees associated with applications that are withdrawn pursuant to paragraph (2) of this subdivision are forfeited and will not be refunded to the applicant. Applicants who submit applications subsequent to withdrawing an application pursuant to paragraph (2) of this subdivision must pay all applicable fees.

(2) An application may, on written request of the applicant, be withdrawn prior to decision by the department at any time without prejudice to the applicant.

(o) Failure to implement an application.

The failure, neglect or refusal of an applicant to obtain a license and commence operation as an assisted living residence within one year of issuance of approval or contingent approval of the application shall constitute an abandonment of the application by the applicant and any approval or contingent approval issued by the department shall be deemed cancelled and withdrawn. Licensure and certification fees associated with applications that have not been implemented are forfeited and will not be refunded.

(p) Licensure and other fees.

(1) Every assisted living residence shall pay a non-refundable assisted living residence licensure fee upon initial licensure application and biennially thereafter, following two years of licensed operation.

(i) Such fee shall be comprised of a base fee per license issued or biennial license renewal, plus an additional fee for each resident whose annual income is above 400 percent of the Federal poverty level for the year in which the license is issued or renewed.

(ii) Such additional per resident fee shall be based on the total occupied beds at the time of application, or at the time of biennial license renewal, up to the maximum initial or biennial licensure fee set forth in statute.

(iii) Applicants must pay the per resident fee for every resident for whom they do not have documentation that the resident's income is 400 percent or less than the Federal poverty level. Residents who are eligible for Medicaid or Supplemental Security Income payments are presumptively at or below 400 percent of the Federal poverty level.

(iv) If the facility is under construction at the time the initial licensure application is submitted, the basic fee per license shall be paid at time of application. The additional fee for each resident whose income is 400 percent or less than the Federal poverty level shall be determined at the time that the license is approved.

(2) Every assisted living residence that applies for an enhanced assisted living certificate or a special needs assisted living certificate shall pay an additional non-refundable initial and biennial fee, in addition to any other required licensure fee, in an amount set forth in statute.

(3) All applicable licensure and certification fees shall be paid prior to the processing and approval of an application for licensure or certification or the biennial renewal of such license and certification.

(4) Applicants must pay the licensure fees provided for in this section for each adult home and/or enriched housing program operating certificate that is to be issued, amended to include licensure as an assisted living residence, certification as an enhanced assisted living residence, or certification as a special needs assisted living residence, or biennially renewed.

(5) The fees referenced in this subdivision shall be in the amount or amounts specified in statute. All such fees received by the department shall be nonrefundable.