2023 New York Laws › MHY - Mental Hygiene › Title C - Developmental Disabilties Act › Article 16 - Regulation and Quality of Services › 16.05 - Issuance of Operating Certificates.

§ 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.