Sec. 1001.6. General provisions

(a) The operator of an assisted living residence must provide, through its employees and agents, an organized program of care, supervision and services which meets the standards set forth in this Part; assures the protection of resident rights; and promotes the social, physical and mental well-being of its residents.

(b) No entity shall establish, operate, provide, conduct or offer assisted living in this State, or hold itself out as an entity which otherwise meets the definition of assisted living or advertise itself as assisted living or by a similar term, without obtaining the approval of the department to operate as an adult home or enriched housing program pursuant to title 2 of article 7 of the Social Services Law, obtaining the approval of the department to operate as an assisted living residence pursuant to article 46-B of the Public Health Law and this Part, and otherwise acting in accordance with this Part. An entity may simultaneously apply for approval to operate as an adult home or enriched housing program and as an assisted living residence pursuant to article 46-B of the Public Health Law and this Part. This provision shall not apply to assisted living programs approved by the department pursuant to section 461-1 of the Social Services Law.

(c) The knowing operation of an assisted living residence or enhanced assisted living residence without the prior written approval of the department shall be a Class A misdemeanor.

(d) The requirements of this Part shall be in addition to those required of an adult care facility. In the event of a conflict between any provision of article 46-B of the Public Health Law and a provision of article 7 of the Social Services Law or a regulation adopted thereunder, the applicable provision of article 46-B of the Public Health Law and the applicable provision of this Part which implements such statute shall supercede article 7 of the Social Services Law or the applicable provision thereunder to the extent of such conflict. The operator shall operate and maintain the residence in compliance with the regulations of the department and with other applicable Federal, State and local statutes and regulations.

(e)

(1) Upon request by an applicant or operator, the department may waive nonstatutory requirements of this Part. An applicant or operator must request and receive written approval prior to operating in accordance with any waiver. Applications for a waiver must be submitted in writing to the department and must include:

(i) the specific regulation for which a waiver is sought;

(ii) the reason the waiver is necessary; and

(iii) a description of what will be done to achieve or maintain the purpose of the regulation to be waived and to protect the health, safety and well-being of the residents.

(2) Before granting a waiver, the department may require that the applicant or operator make physical plant modifications or adopt special methods or procedures to protect resident health and safety and may grant written approval of a waiver request only after making a determination that the proposed waiver will not adversely affect the health, safety and well-being of the residents.

(3) This subdivision shall apply to requests for a waiver under this Part unless a more specific waiver provision related to a particular operating standard is specified elsewhere in this Part.

(4) The department shall make a determination on a request for waiver within 90 days of receipt of all required information from the applicant or operator.

(5) The department may make a determination that an operational practice or procedure for which a waiver is frequently granted is deemed to be a department-approved regulation equivalency, that is, equivalent to the intent of the regulation waived.

(6) An operator may submit notification to the department of the operator's adoption of a department-approved regulation equivalency, in accordance with department protocols.

(7) Failure to adhere to the terms of the approved waiver or regulation equivalency will result in rescission of the approval and may result in a regulatory citation and imposition of penalties for violation of the applicable regulation, in accordance with the provision of section 1001.15 of this Part.

(8) During the period of a State disaster emergency declared pursuant to section 28 of the Executive Law, the State Commissioner of Health or their designee may suspend or modify any provision, of parts thereof, of this Part, that is not otherwise required by State statute or Federal law, if compliance with such provisions, or parts thereof, would prevent, hinder, or delay action necessary to cope with the State disaster emergency, or if necessary to assist or aid in coping with such disaster. Such suspension or modifications may include any modifications of regulation, exceptions, limitations or other conditions as the commissioner or their designee deems appropriate and necessary to respond to the disaster emergency. Provided, further, that should the Governor declare a State disaster emergency pursuant to section 28 of the Executive Law, which suspends or otherwise modifies State statutes pursuant to the Governor's authority under section 29-a of the Executive Law, the commissioner or their designee may suspend or modify any provision of any regulation that is consistent with the statutory authority as modified or suspended, for the period of such suspension or modification.