§ 16.05 Issuance of operating certificates.

(a)(1) Application for an operating certificate shall be made upon
forms prescribed by the commissioner.

(2) Application shall be made by the person or entity responsible for
operation of the facility or provider of services as described in
subdivision four of section 16.03 of this article. Applications shall be
in writing, shall be verified and shall contain such information as
required by the commissioner.

(b) Notice of an application for an operating certificate shall be
forwarded by the office to the appropriate local governmental unit in
the area to be served and the local health planning agency.

(c) No operating certificate shall be issued by the commissioner
unless the commissioner is satisfied as to:

(1) The public need for the facility or services to be established
upon issuance of the operating certificate;

(2) The character, competence and standing in the community of the
person or entity responsible for operating the facility or providing
services;

(3) The financial resources of the proposed facility or provider of
services and its sources of future revenues;

(4) The adequacy of the premises, equipment, personnel and program to
provide the services which would be authorized by the operating
certificate;

(5) The commissioner may deny an operating certificate to any operator
who, within ten years of the date of application, has been denied
renewal for cause of an operating certificate, or who has had an
operating certificate revoked or suspended for cause, and such denial,
revocation or suspension was not reversed after an administrative
hearing or other appeal, for a program or facility licensed or operated
by a health, mental hygiene, social services or education agency or
department of this or any state or who has failed to operate a program
serving the mentally disabled, other disabled persons as defined in
subdivision twenty-one of section two hundred ninety-two of the
executive law, the aged, children or other persons receiving health,
mental hygiene, residential, social or educational services in
continuous compliance with applicable laws or regulations within the
previous ten years in any state;

(6) In the case of residential facilities, that arrangements have been
made with other providers of services for the provision of health,
habilitation, day treatment, education, sheltered workshop,
transportation or other services as may be necessary to meet the needs
of individuals who will reside in the facility; and

(6-a) In the case of a provider of services seeking to provide nursing
tasks by non-licensed persons authorized to provide such tasks pursuant
to subparagraph (v) of paragraph a of subdivision one of section
sixty-nine hundred eight of the education law, that such provider will
provide services and perform tasks in a safe and competent manner and
will fully comply with the requirements of such subparagraph and any
memorandum of understanding between the office and the state education
department pursuant to such subparagraph. Any operating certificate
subject to this paragraph shall specify that the provider of services is
authorized to provide these nursing services.

(7) Such other matters as the commissioner shall deem pertinent in the
public interest.

(d) No operating certificate shall be renewed by the commissioner
unless the commissioner is satisfied as to:

(1) the financial resources of the proposed facility or provider of
services and its sources of future revenues;

(2) the adequacy of the premises, equipment, personnel and program to
provide the services which would be authorized by the operating
certificate;

(3) the ability of the operator to provide the services required by
the operating certificate as demonstrated by the operator's compliance
with applicable laws and regulations within the previous ten years;

(4) in the case of residential facilities, that arrangements have been
made with other providers of services for the provision of health,
habilitation, day treatment, education, sheltered workshop,
transportation or other services as may be necessary to meet the needs
of individuals who will reside in the facility; and

(5) such other matters as the commissioner shall deem pertinent in the
public interest.

(e) The commissioner may disapprove an application for an operating
certificate, may authorize fewer services than applied for, and may
place limitations or conditions on the operating certificate including,
but not limited to compliance with a time limited plan of correction of
any deficiency which does not threaten the health or well-being of any
individuals. In such cases the applicant shall be given an opportunity
to be heard, at a public hearing if requested by the applicant.

(f) Operating certificates shall be valid for up to a three-year
period as shall be expressly provided upon such certificate or renewal
thereof. No application fee shall be required for an application for
issuance or renewal of an operating certificate.

(g) The commissioner shall specify on each operating certificate the
kind or kinds of services authorized, any limitations or conditions of
the certificate and the expiration date of the certificate.

(h) Operating certificates shall not be transferable.

(i) In the event that the holder of an operating certificate for a
residential facility issued by the commissioner pursuant to this article
wishes to cease the operation or conduct of any of the activities, as
defined in paragraph one or four of subdivision (a) of section 16.03 of
this article, for which such certificate has been issued or to cease
operation of any one or more of facilities for which such certificate
has been issued; wishes to transfer ownership, possession or operation
of the premises and facilities upon which such activities are being
conducted or to transfer ownership, possession or operation of any one
or more of the premises or facilities for which such certificate has
been issued; or elects not to apply to the commissioner for
re-certification upon the expiration of any current period of
certification, it shall be the duty of such certificate holder to give
to the commissioner written notice of such intention not less than sixty
days prior to the intended effective date of such transaction. Such
notice shall set forth a detailed plan which makes provision for the
safe and orderly transfer of each person with a developmental disability
served by such certificate holder pursuant to such certificate into a
program of services appropriate to such person's on-going needs and/or
for the continuous provision of a lawfully operated program of such
activities and services at the premises and facilities to be conveyed by
the certificate holder. Such certificate holder shall not cease to
provide any such services to any such person with a developmental
disability under any of the circumstances described in this section
until the notice and plan required hereby are received, reviewed and
approved by the commissioner. For the purposes of this paragraph, the
requirement of prior notice and continuous provision of programs and
services by the certificate holder shall not apply to those situations
and changes in circumstances directly affecting the certificate holder
that are not reasonably foreseeable at the time of occurrence,
including, but not limited to, death or other sudden incapacitating
disability or infirmity. Written notice shall be given to the
commissioner as soon as reasonably possible thereafter in the manner set
forth within this subdivision.

(j) Notwithstanding any other provision of this chapter, except in the
case of family care, the commissioner may issue one operating
certificate for two or more facilities in the same program class
operated by the same person or entity.