1. (1) As set forth in section 381 of the Executive Law, the State's cities, towns and villages shall be responsible for administering and enforcing the appropriate section of the 2002 edition of the New York State Uniform Fire Prevention and Building Code (hereafter referred to as the Uniform Code) as designated in paragraphs (3) and (4) of this subdivision, for homes that are owned or leased by parties or entities other than the State of New York, its departments, agencies or offices. In the City of New York, the Building Code of the City of New York shall be administered and enforced by the city as to such facilities. Said codes are available as follows:

   1. (i) Outside the City of New York. The code is published by the New York State Department of State, 41 State Street, Albany, NY 12231-0001; or is available for review during business hours and by appointment at the following locations:

      1. (a) the NYS Department of State, Division of Administrative Rules, 41 State Street, Albany, NY 12231-0001; and
      2. (b) the Office for People With Developmental Disabilities, Attention: Public Access Officer, 44 Holland Avenue, Albany, NY 12229.

   2. (ii) In the City of New York. The code is published by the City Record, 2208 Municipal Building, New York, NY 10007; or is available for review during business hours and by appointment at the following locations:

      1. (a) the Department of State, Division of Administrative Rules, 41 State Street, Albany, NY 12231; and
      2. (b) the Office for People With Developmental Disabilities, Attention: Public Access Officer, 44 Holland Avenue, Albany, NY 12229.
2. (2) With respect to all family care homes (see section 635-99.1 of this Part) and individualized residential alternatives (IRAs) (see section 635-99.1 of this Part) for eight or fewer persons to which the Uniform Code or the Building Code of the City of New York is applicable, the code shall be administered, enforced, varied or modified as provided therein, as well as applicable Department of State rules and regulations and the requirements set forth in this Subpart.

3. (3) For the purposes of the administration and enforcement of the Uniform Code by the authority having jurisdiction, the following occupancy classifications or designations shall be applied to family care homes and IRAs for eight or fewer persons (which are family units pursuant to section 41.34 of the Mental Hygiene Law).

   1. (i) Where the facility is located in a one- or two-family dwelling (see section 635-99.1 of this Part), either:

      1. (a) Residential Code; or
      2. (b) Classification R-3 if the facility does not comply with the requirements of the Residential Code.
   2. (ii) Multiple dwelling. Classification R-2, in all other instances.

4. (4) For purposes of the administration and enforcement of the Building Code of the City of New York by the authority having jurisdiction, the following occupancy classifications shall apply to the specified family care homes and IRAs for eight or fewer persons (which are family units pursuant to section 41.34 of the Mental Hygiene Law).

   1. (i) Residential occupancy group. Classification J-3 where any home is located in a one- or two-family dwelling;
   2. (ii) Residential occupancy group. Classification J-2 in all other instances.

5. (5) An applicant for an initial operating certificate shall confirm that their home satisfies OPWDD's conditions for meeting applicable building code requirements by:

   1. (i) a certificate of occupancy, or equivalent, which documents the building's compliance; or
   2. (ii) if the applicant is unable to obtain such a certificate, a signed report from a New York State licensed architect or engineer that describes the home's compliance and any effect noncompliance could have on the health, safety and welfare of the occupants.
6. (6) Compliance with building codes in effect on the date of survey for recertification is not a requirement for recertification unless physical plant modifications have been made that are subject to the building codes in effect at the time of the modification.

7. (7) If any physical plant modifications are initiated that are subject to the building codes in effect at the time of receipt of the permit for such modification, the provider shall notify OPWDD in writing of the proposed changes and provide documentation that such changes will be in compliance with all applicable building codes and related guides.

   (b) Safety and welfare requirements.

8. (1) All family care homes and IRAs for eight or fewer people, initially certified on or after August 1, 2007 shall comply with all the general requirements of this Subpart for the purposes of obtaining an initial operating certificate.
9. (2) Family care homes and IRAs for eight or fewer people, certified or recertified prior to August 1, 2007 shall by virtue of such certification or recertification, be presumed to have demonstrated compliance with the safety and welfare requirements for purposes of certification by OPWDD. If a requirement in this Subpart is more rigorous than what was previously required of the existing home and if the strict application of the provisions of this section would result in unreasonable hardship upon the family care provider, then based on the home's previous compliance, the family care home is to be considered in compliance with this Subpart. However, any changes, modifications or upgrading of the facility that are made shall be in compliance with the requirements of this Subpart.

10. (3) All family care homes and IRAs for eight or fewer persons shall comply with the following general safety and welfare requirements:

    1. (i) No bed shall be located in an attic, stair hall, hallway, or room commonly used for other than bedroom purposes.
    2. (ii) The use of portable or temporary space heaters as the sole source of heat is prohibited. However, exceptions for cause for temporary supplemental use may be granted where the commissioner has determined that the safety and welfare of the persons residing in the home has not been compromised.

    3. (iii) The home must have and maintain active telephone service.

       1. (a) Cellular and/or landline services must be used to meet this requirement.
       2. (b) If cellular telephone service is not available at a location at all times, landline telephone service is required.
       3. (c) Landline telephone service, where provided, must consist of one or more of the following types of land based transmission: cable, microwave, fiber optic, or copper wire.
       4. (d) Landline telephone service must remain in working order and function during power outages or be backed up by immediately available cellular service.
    4. (iv) The family care provider or the operator of the IRA shall notify OPWDD immediately of the anticipated or actual termination of any service vital to the continued safe operation of the home or IRA or the health of persons receiving services. This shall include but not be limited to the following services: telephone, electric, gas, fuel, water, septic tank, heat, air conditioning, smoke or heat detection equipment or sprinkler systems. All situations which, in the reasonable opinion of the family care provider or the operator of the IRA, are of minor or merely inconvenient, inconsequential nature to persons receiving services, and which can be remedied in a short-term, timely fashion, need not be reported. The family care provider or the operator of the IRA is to promptly apply remedial measures to correct the circumstances described above.

    5. (v) Detection and alarm devices.

       1. (a) A smoke detector shall be installed in each corridor adjacent to sleeping rooms. In corridors or adjacent open areas such as living rooms, dining rooms or recreation rooms, smoke detectors shall be installed at a maximum of 30 feet on center and no more than 15 feet from a wall.
       2. (b) A smoke detector shall be installed at the head of each open stairway located within the home or IRA; or a smoke detector shall be installed within six feet of the bottom opening of a stairway that is enclosed at the top.
       3. (c) At least one smoke detector shall be installed in basements (see section 635-99.1 of this Part). Additional detectors may be required for those basements and attics subdivided by partitions.
    6. (vi) Fire extinguishers shall be portable and in accordance with the requirements of NFPA 10, and approved and labeled by the Underwriters Laboratories.
    7. (vii) Steam pipes and steam radiators with which people receiving services may come in contact within the home or IRA shall be shielded. Hot water radiators that present a burn hazard to individuals (see section 635-99.1 of this Part) shall also be shielded.
    8. (viii) The family care home or the IRA shall be of sufficient size to provide adequate and proper living accommodations for all residents of the household, including the individuals receiving services who reside in the home or the IRA.
    9. (ix) Each individual shall have a separate bed and adequate storage provision for clothing and other personal possessions.
    10. (x) No individual is to share a bedroom with more than one other person.
    11. (xi) Food supplied to individuals shall be of good quality, properly prepared, and served in sufficient quantities and frequency to meet the dietary and nutritional needs of the individuals.
    12. (xii) Toilet rooms and bathrooms shall provide personal privacy.
    13. (xiii) Safe, continuous and unobstructed exits shall be maintained from the interior of the home or IRA to the exterior at a street or to a yard, courtyard or passageway leading to an open public area. A landlocked courtyard must have unrestricted access to a location which is at least 30 feet away from the building.
    14. (xiv) All ramps, doors, handrails, elevator controls, telephones and similar devices installed for use by individuals with physical disabilities are in an operable/useable condition.
    15. (xv) Any hazardous conditions that present a threat to an individual's safety or welfare are repaired in a timely manner.
    16. (xvi) The maintenance and/or cleaning of any heating, air conditioning and/or air filtration equipment has been performed on an annual basis. Such equipment shall be properly maintained and in working order.
    17. (xvii) At least one fire extinguisher is located in an accessible place in or near the kitchen area. Extinguishers are tested and recharged in accordance with the recommendations of the manufacturer and the NFPA.
    18. (xviii) Other fire protection equipment is maintained in accordance with the recommendations of the manufacturer.
    19. (xix) The home or IRA shall be clean and well maintained.
    20. (xx) In homes or IRAs with private water sources for drinking or cooking purposes, the facility shall test the private water source on at least an annual basis to ensure that the water conforms to the chemical and bacteriological quality standards for potable water established by the health authority having jurisdiction.

11. (4) Smoking is prohibited inside supervised IRAs. Smoking may be permitted on the grounds of supervised and supportive IRAs, in accordance with section 633.23 of this Title. When smoking is permitted in designated outdoor smoking areas, these areas must be:

    1. (i) equipped with appropriate non-combustible receptacles for ashes, tobacco, and other smoking remnants; and
    2. (ii) properly maintained, with routine emptying of disposal receptacles and removal of potential fire hazards (e.g., cigarette butts and paper products).
12. (c) For the purposes of the issuance of an operating certificate, the commissioner may exempt the need to apply specific provisions of this section to any family care home or IRA for eight or fewer persons, for such periods as deemed appropriate. However, this shall occur only if the strict application of the provisions would result in unreasonable hardship upon the provider. Then such exemptions shall be made, only if there is acceptable documentation that it will not adversely affect the health and safety of individuals receiving services. Any exemptions (including those formerly referred to as "waivers") shall continue in effect until rescinded in writing by the commissioner for cause.

(a) Building codes (see section 635-99.1 of this Part) and occupancy classifications.