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This entry was published on 2014-09-22
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SECTION 4656*2
General requirements; applicability of laws to assisted living and enhanced assisted living
Public Health (PBH) CHAPTER 45, ARTICLE 46-B, TITLE 4
* § 4656. General requirements; applicability of laws to assisted
living and enhanced assisted living. 1. 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 care facility pursuant to title two of article seven of the social
services law, obtaining the approval of the department as required in
this article, and otherwise acting in accordance with this article.
Provided however that an entity may simultaneously apply for approval to
operate as an adult care facility and as an assisted living residence
pursuant to this article. This subdivision shall not apply to assisted
living programs approved by the department pursuant to section four
hundred sixty-one-l of the social services law.

2. An assisted living operator shall comply with all applicable
statutes, rules and regulations required for maintaining a valid
operating certificate issued pursuant to title two of article seven of
the social services law and shall obtain and maintain all other
licenses, permits, registrations, or other governmental approvals
required in addition to requirements under this article.

3. Approval for licensure or certification pursuant to this article
may be granted only to an applicant who satisfactorily demonstrates:

(a) that such applicant possesses a valid operating certificate to
operate as an adult home or enriched housing program pursuant to article
seven of the social services law. 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 article;

(b) that such applicant which has an existing valid adult care
facility operating certificate, is in good standing with the department.
For purposes of this subdivision, good standing shall mean the applicant
has 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 seven of section
four hundred sixty-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 two of
paragraph (b) of subdivision seven of section four hundred sixty-d of
the social services law; (iv) within the previous three years, been
issued an order pursuant to subdivision two, five, six, or eight of
section four hundred sixty-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 fifteen of
section four hundred sixty-d of the social services law. Provided
however that 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 said applicant if it
determines that the applicant is of good moral character and is
competent to operate the residence. Such character and competence review
shall be limited to applicants not in good standing pursuant to this
paragraph or an applicant subject to paragraph (f) of this subdivision.
As part of the review provided pursuant to this paragraph, the
department shall, on its webpage, solicit and consider public comment;

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

(d) 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;

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

(f) in the case of an applicant which does not have an existing valid
adult care facility operating certificate, such applicant shall
otherwise comply with the provisions for certification as prescribed by
article seven of the social services law.

4. The department shall develop an expedited review and approval
process for applications for up to nine additional beds to an existing
enhanced or special needs assisted living certificate qualified as being
in good standing under section forty-six hundred fifty-three of this
article.

5. The knowing operation of an assisted living or enhanced assisted
living residence without the prior written approval of the department
shall be a class A misdemeanor.

6. Every assisted living residence that is required to possess an
assisted living residence license shall be licensed on a biennial basis
and shall pay a biennial licensure fee. Such fee shall be five hundred
dollars per license, with an additional fee of fifty dollars per
resident whose annual income is above four hundred percent of the
federal poverty level. Such additional fee shall be based on the total
occupied beds at the time of application, up to a maximum biennial
licensure fee of five thousand dollars. Said fee shall be in addition to
the fee charged by the department for certification as an adult care
facility. Every assisted living residence that applies for an enhanced
assisted living certificate or a special needs assisted living
certificate shall pay an additional biennial fee, in addition to any
other fee required by this subdivision, in the amount of two thousand
dollars, provided that for any residence applying for both an enhanced
assisted living certificate and a special needs assisted living
certificate the amount of such fee shall be three thousand dollars.

7. The requirements of this article shall be in addition to those
required of an adult care facility. In the event of a conflict between
any provision of this article and a provision of article seven of the
social services law or a regulation adopted thereunder, the applicable
provision of this article or the applicable regulation shall supersede
article seven of the social services law or the applicable regulation
thereunder to the extent of such conflict.

8. The assisted living operator shall not use deceptive or coercive
marketing practices to encourage residents or potential residents to
sign or reauthorize the residency agreement required pursuant to section
four thousand six hundred fifty-eight of this article.

* NB There are 2 § 4656's