N.Y. Comp. Codes R. & Regs. tit. 18 § 485.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 485.5 - Operating certificates

(a) This section shall apply to all adult-care facilities excluding shelters for adults, which are addressed in Part 491 of this Title.

(b) Only 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 may be issued an operating certificate by the department for the purpose of operating an adult care facility. Family-type homes for adults may be issued an operating certificate only if the operator is a natural person or persons. Enriched housing programs may be issued an operating certificate only if the operator is a public agency, public corporation or a not-for-profit corporation.

(c) An operating certificate for an adult care facility subject to this section shall:

(1) specify the name and location of the facility, the name of the operator, the type of facility and services to be provided, the capacity of the facility, any conditions or limitations and the duration of the certificate;

(2) be nontransferable; and

(3) remain the property of the department.

(d) An operating certificate shall not be issued for a period in excess of four years. The department may issue an operating certificate for a period of less than four years.

(e) No facility shall be operated other than in accord with the terms and conditions of the operating certificate and the regulations of this Title pertaining to the specified type of facility.

(f) No operator shall, for purposes of advertisement, represent the facility by any designation or terminology other than that which is contained on the operating certificate.

(g) No operator shall change or modify a facility, or the services originally approved and stipulated by the operating certificate, without the prior written approval of the department.

(h) An operator shall not, without the prior written approval of the department:

(1) transfer responsibility for operation of the facility to another person or entity; or

(2) change the composition of a partnership.

(i) An operator of a not-for-profit corporation must annually provide to the department in writing the names and addresses of the current members of the board of directors.

(j) No person, corporation, home, institution, hotel or other residential facility or accommodation, other than a facility or agency which possesses a valid operating certificate, as required under the provisions of this Title, the Mental Hygiene Law or Public Health Law, shall hold itself out, advertise, or otherwise in any form or manner represent that it is a facility offering accommodations and services for dependent, aged or disabled adults.

(k) In the event that an operator elects to close a facility subject to this section and to surrender an operating certificate:

(1) The operator shall notify the appropriate regional office of the department in writing at least 120 days prior to the anticipated date of closure.

(2) Such written notice shall include a proposed plan for closure. The plan shall be subject to department approval and shall include timetables and shall describe the procedures and actions the operator will take to:

(i) notify residents of the closure, including provisions for termination of admission agreements and involuntary discharge;

(ii) assess the needs and preferences of individual residents;

(iii) assist residents in locating and transferring to appropriate alternative settings; and

(iv) maintain compliance with these regulations until all residents have relocated.

(3) The operator shall take no action to close the facility prior to department approval of the plan for closure.

(4) The operator shall implement the approved plan to insure that arrangements for continued care which meets each resident's social, emotional and health needs are effectuated prior to closure.

(5) Failure to notify the department of intent to cease operations, failure to submit an approvable plan, to execute the approved plan, or closure before all residents have been appropriately relocated, may result in the imposition of civil penalties.

(l) In the event of the death of the operator of a private proprietary adult care facility, the department may give approval to a plan submitted by the remaining partners, the operator's spouse or executor for the continued operation of the facility, on a temporary basis, under the outstanding operating certificate. Such plan shall be submitted within 30 days of the death of the operator and shall include notice of intent from the remaining partners, spouse or another applicant to file an application for a new operating certificate and a proposed timetable for application or a plan for closing the facility. The proposed timetable for application shall not exceed 90 days unless the applicant can demonstrate that extension is necessary. Approval under this subdivision to operate the facility shall continue only while the facility is in compliance with regulations.

(m) The operating certificate of any facility may be revoked, suspended, limited or an application for renewal denied upon a determination by the department that the operator has failed to comply with these regulations or the requirements of State or local laws or regulations applicable to the operation of the facility. Parts 486 and 343 of this Title shall apply.

(n) The department may revoke, suspend, modify, or limit an operating certificate of a shelter for adults, residence for adults or adult home upon determining that:

(1) such action would be in the public interest because:

(i) in the case of revocation, suspension or limitation, such action would conserve resources by restricting the number of beds, or the level of services, or both, to those beds or services which are actually needed, after taking into consideration the total number of beds necessary to meet the public need, and the availability of facilities or services such as ambulatory, home care or other services which may serve as alternatives or substitutes for the services provided by a residence for adults or adult home; and

(ii) in the case of modification, the level of care and the nature and type of services provided by a facility or required by all or some of the individuals seeking admission to such facility or required by all or some of the residents of such a facility, is inconsistent with the operating certificate of the facility.

(2) Whenever the department proposes to revoke, suspend, modify or limit an operating certificate with respect to any particular facility based upon any of the factors set forth in paragraph (1) of this subdivision, the department must publish in a newspaper of general circulation in the geographic area of the facility at least 30 days prior to making such a determination an announcement that such a determination is under consideration and an address to which interested persons can write to make their views known. The facility may request a public hearing, to be held in the county in which the facility is located, to discuss the department's proposed action. The department must take all public comments into consideration in making its determination.

(3) The department must, upon making a determination described in this subdivision with respect to any facility, notify such facility of the determination at least 30 days in advance of taking the proposed action to revoke, suspend, modify or limit the facility's operating certificate. The department must schedule an administrative hearing to provide the facility with an opportunity to contest the department's determination. In no event will the revocation, suspension, modification or limitation take effect prior to the 30th day after the date of the notice or prior to the effective date specified in the notice or prior to the date of the hearing decision, whichever is later.

(o) The operating certificate of any facility shall be revoked, suspended or limited if an operator is:

(1) unable, by reason of loss of access or loss of right of possession to a facility, to continue to operate as certified;

(2) unable, by reason of catastrophe such as fire or flood, to operate as certified for a period in excess of 60 days.

(p)

(1) The operating certificate of any facility may be revoked, suspended or limited, or an application for an operating certificate denied, if an individual operator, or a member of the board of directors, the executive director or chief administrative officer of a not-for-profit operator is or has been within 10 years:

(i) convicted of a class A, B or C felony;

(ii) convicted, in another state or in Federal court, of a crime which would, if committed in New York State, be considered a class A, B or C felony; or

(iii) convicted of a felony or class A misdemeanor related to the provision of care to dependent adults or children.

(2) Such revocation, suspension or limitation of an operating certificate, or denial of an application for an operating certificate, must be preceded by a determination that:

(i) there is a direct relationship between one or more of the criminal convictions and the fitness of the individual to perform related duties or responsibilities; or

(ii) granting the individual a license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

(q) Each of the following factors must be considered in determining whether the findings stated in subparagraphs (o)(2)(i) and (ii) of this section.

(1) the public policy of the State to encourage the licensure of persons previously convicted of one or more criminal offenses;

(2) the specific duties and responsibilities necessarily related to the license sought or held by the person;

(3) the bearing the criminal offense or offenses for which the individual was previously convicted will have on his or her fitness to perform related duties or responsibilities;

(4) the time which has elapsed since the occurrence of the criminal offense or offenses;

(5) the age of the individual at the time of the occurrence of the criminal offense or offenses;

(6) the seriousness of the criminal offense or offenses;

(7) any information produced by the individual to demonstrate rehabilitation and good conduct, including but not limited to a valid certificate of relief from disabilities or certificate of good conduct issued in accordance with the State Correction Law; and

(8) the interest of the department in protecting the safety and welfare of residents or potential residents of adult care facilities, as well as the general public.

(r) Any operating certificate issued by the commissioner to the operator of an adult care facility shall remain the property of the department and upon voluntary or involuntary closure shall be surrendered to the department by personal delivery to a designated representative or by certified or registered mail.

(s) Continuation of facility operation after revocation, suspension or limitation of an operating certificate shall be the basis for imposition of sanctions in accordance with Part 486 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 485.5

Amended New York State Register December 7, 2016/Volume XXXVIII, Issue 49, eff. 12/7/2016

Amended New York State Register December 11, 2019/Volume XLI, Issue 50, eff. 1/1/2020