2012 New York Consolidated Laws
PBH - Public Health
Article 46 - (4600 - 4624) CONTINUING CARE RETIREMENT COMMUNITIES
4604 - Certificate of authority required; application and approval.

 
    §  4604.  Certificate of authority required; application and approval.
  1.  No person shall construct, expand, acquire, maintain, or  operate  a
  continuing  care  retirement  community,  or enter into a contract as an
  operator, or solicit the execution of any contract for  continuing  care
  retirement  community  services  to  be  provided  within  the  state or
  advertise  itself  or  otherwise  hold  itself  as  a  "continuing  care
  retirement  community",  without  obtaining  a  certificate of authority
  pursuant to this article; provided, however, nothing in this subdivision
  shall prohibit  a  person,  authorized  pursuant  to  section  forty-six
  hundred twenty-one or forty-six hundred twenty-two of this article, from
  entering into priority reservation agreements, soliciting, collecting or
  receiving  priority  reservation  fees,  or constructing and maintaining
  sales offices and model units with respect to a proposed continuing care
  retirement community.
    2. In order to receive  a  certificate  of  authority  to  enter  into
  contracts  with  respect to a particular community, a person or persons,
  hereinafter designated as the applicant, shall apply for  a  certificate
  of  authority  on forms prescribed by the commissioner and, in addition,
  shall submit the following:
    a. a feasibility study, including a  market  analysis  describing  the
  characteristics of the population to be served;
    b. an actuarial study;
    c.  an  initial  disclosure  statement as provided pursuant to section
  forty-six hundred six of this title;
    d. a copy of the proposed forms of contracts to be entered  into  with
  residents of the community;
    e.  complete  details  of  any  agreements  with  a  licensed insurer,
  including copies of proposed contracts, requiring the insurer to assume,
  wholly or in part, the cost of medical or health related services to  be
  provided  to  a  resident  pursuant  to  a  continuing  care  retirement
  contract;
    f. a copy of each of the basic organizational documents and agreements
  of the applicant of all participating entities;
    g. a copy of the bylaws, rules and regulations and internal  governing
  documents of the applicant;
    h. architectural program and sketches for the community;
    i.  the  proposed  community plan, including the number of independent
  living units, skilled nursing facility beds, adult care  facility  beds,
  if  any,  and a description of other social and health services provided
  by the community;
    j. copies of financial and personal disclosure information as required
  by the council for the applicant and members of the board, officers, and
  controlling  persons  of  the  proposed   continuing   care   retirement
  community, including:
    (i)  information  necessary  for  the  determination by the council of
  character, competence, and experience,  where  information  adequate  to
  make such determinations is not otherwise available to the council,
    (ii)  a  list  of  continuing  care retirement communities, adult care
  facilities  and  health  care  facilities  owned  or  operated  by   the
  applicant,  by  any controlling persons of the applicant, or by entities
  with which the members of the  applicant's  board  are  affiliated;  the
  address  of  each such facility; and the dates of ownership or operation
  of each such facility,
    (iii) in the event that any such community or  facility  specified  in
  this  subdivision while under the control or operation of the applicant,
  or  any  controlling  person  has  been  subjected  to   a   limitation,
  withdrawal,   or   refusal   to  grant  accreditation  by  a  recognized
  accreditation organization, because of failure to comply with  standards

  governing  the  conduct  and operation of the facility, information that
  describes the nature of the violation, the agency or body enforcing  the
  standard  (including  its  name  and  address),  the  steps taken by the
  facility  to  remedy  the  violation,  and  an indication of whether any
  accreditation has since been restored, and
    (iv) a statement as to whether the applicant or any of  its  officers,
  directors,  partners,  managers  or  a  principal,  parent or subsidiary
  corporation:
    (A) has been convicted of a crime or  pleaded  nolo  contendere  to  a
  felony  charge,  or  been  held  liable or enjoined in a civil action by
  final  judgment  if  the  criminal  or  civil  action  involved   fraud,
  embezzlement, fraudulent conversion, or misappropriation of property,
    (B)  had a prior discharge in bankruptcy or was found insolvent in any
  court action,
    (C)  is  or  was  subject  to  a  currently  effective  injunctive  or
  restrictive  order  or federal or state administrative order relating to
  business activity or health care as a result of an action brought  by  a
  public  agency  or  department,  including,  without limitation, actions
  affecting a  license  to  operate  a  hospital  as  defined  by  section
  twenty-eight  hundred  one of this chapter, or a facility required to be
  licensed  or  certified  by  the  department  of  social  services.  The
  statement  shall  set  forth  the court or agency, date of conviction or
  judgment, the penalty imposed or damages assessed, or the  date,  nature
  and issuer of the order;
    k. information which describes the populations to be served; and
    l.  any  other  information  as may be required by regulations adopted
  pursuant to this article.
    3. Nothing in this article shall be construed to enlarge, diminish  or
  modify:  a  social  services  district's  otherwise valid recovery under
  section three hundred sixty-nine of the social services law, nor medical
  assistance eligibility under title eleven of article five of the  social
  services law nor applicable provisions of the estates, powers and trusts
  law.  Except  as  otherwise  provided in this article, the activities of
  continuing care retirement communities shall be subject to any other law
  governing  such  activities  including  but  not  limited   to   article
  twenty-eight  of  this  chapter and article seven of the social services
  law and regulations promulgated thereunder; provided, however, that  the
  provisions  of  paragraphs  (d)  and  (e) of subdivision four of section
  twenty-eight hundred one-a and section twenty-eight hundred two of  this
  chapter  shall  not apply, and provided that the provisions of paragraph
  (a) of subdivision one and the provisions of subdivision two of  section
  four  hundred  sixty-one-b  of  the  social services law with respect to
  public need and the  provisions  of  subdivision  one  of  section  four
  hundred  sixty-one-c  of  the  social  services  law  shall not apply to
  residents who have been admitted in accordance with  a  continuing  care
  retirement community contract provided that, upon admission to the adult
  care  facility,  such  residents  shall  be  given  a notice which shall
  include, at a minimum, information regarding facility services, resident
  responsibilities, supplemental services, resident rights and protections
  and circumstances that  warrant  transfer.  The  number  of  residential
  health care facility beds available pursuant to subdivision five of this
  section,  without proof of public need therefor, shall be reduced by the
  number of residential health care demonstration facility beds  that  are
  approved pursuant to this article.
    4.  No  certificate of authority shall be issued unless an application
  meeting the requirements of this  section  and  all  other  requirements
  established by law has been approved by:

    a.  (i)  the  superintendent of financial services as to the actuarial
  principles involved, the financial feasibility of the facility, the form
  and content of the proposed contracts to be entered into with  residents
  and insurance contracts between an operator and an insurer requiring the
  insurer  to  assume,  wholly  or  in part, the cost of medical or health
  related services to be provided to a resident;
    (ii) the superintendent of financial services  as  to  the  rates  and
  rating  methodology, if any, to be used by the operator to determine any
  entrance fee, monthly care fee  and/or  any  separate  charges  for  the
  housing  component  of  the  continuing  care contract including but not
  limited to a cooperative or condominium fee charged to the  resident  as
  proposed  in  said  operator's application for certificate of authority.
  Subsequent increases in any entrance or monthly care fee  in  excess  of
  fees  calculated  pursuant  to  the  approved  rating  methodology shall
  require approval of the superintendent. The term "rating methodology" as
  used herein shall incorporate a combination of variables  including  but
  not  limited  to  a pricing structure for comparable services, projected
  operating and health care costs and the applicable  inflationary  impact
  thereon,  projected  income  and  occupancy  rates and the refundability
  component of the continuing care retirement contract.
    (iii) the superintendent of financial services as to any monthly  care
  fee charged to a resident which may be increased or decreased subject to
  approval  by  the  superintendent  of financial services, provided, that
  monthly care  fees  may  be  increased  or  decreased  without  specific
  approval as long as such increase or decrease does not exceed a relevant
  cost  index  or  indices which reflect all components of continuing care
  including  the  costs  associated  with  provision  of  health  care  as
  determined  and promulgated at least annually by the superintendent, and
  provided further  that  the  superintendent  is  notified  of  any  such
  increase or decrease prior to its taking effect.
    (iv)  An  individual resident's monthly care fee shall not be modified
  because of the increased need for services of that resident;
    b. the commissioner of social services as  to  those  aspects  of  the
  application relating to adult care facility beds, if any;
    c.  the public health council under section twenty-eight hundred one-a
  of this chapter as to the establishment of a skilled nursing facility by
  the applicant and as to  such  other  facilities  and  services  as  may
  require  the  public  health  council's  approval  of  the  application;
  provided, however, that the recommendations of the state hospital review
  and planning council and the health systems agency  having  geographical
  jurisdiction  of the area where the continuing care retirement community
  is located shall not be required with respect to the establishment of an
  on-site  or  affiliated  residential  health  care  facility  to   serve
  residents as part of the continuing care retirement community, for up to
  the  total  number of residential health care facility beds provided for
  in subdivision five of this section in communities statewide;
    d. the commissioner under section twenty-eight  hundred  two  of  this
  chapter;  provided,  however,  that,  the  recommendations  of the state
  hospital review and planning  council  and  the  health  systems  agency
  having  geographical  jurisdiction of the area where the continuing care
  retirement community is located shall not be required  with  respect  to
  the  construction  of  an  on-site or affiliated residential health care
  facility to serve residents as part of the  continuing  care  retirement
  community,  for  up  to  the  total  number  of  residential health care
  facility beds provided for  in  subdivision  five  of  this  section  in
  communities statewide; and

    e.  the  attorney  general  as  to  those  aspects  of the application
  relating to a cooperative, condominium or other equity  arrangement  for
  the independent living unit, if any.
    5.  Up  to  two  thousand  residential  health  care facility beds, as
  authorized herein, that may be approved as components of continuing care
  retirement communities shall not be considered by the department and the
  health  systems  agencies  in  the  determination  of  public  need  for
  residential  health  care  facility services; provided, however, that if
  the community seeking to construct such beds does not provide life  care
  to  all  residents,  it  must adequately make the assurances required by
  subdivision  two  of  section  forty-six  hundred  twenty-four  of  this
  article.
    6.  If the approvals required by subdivision four of this section have
  been obtained, the council shall, by majority vote,  either  approve  or
  reject  the  application within sixty days of the date on which the last
  such approval has been obtained. In order to  approve  the  application,
  the council shall have determined that:
    a.  the  proposed  community  will  meet  a  need and will fulfill the
  purposes of this article;
    b. the applicant has satisfied the requirements of this article;
    c. the applicant has demonstrated to the satisfaction of  the  council
  that  the  applicant and members of the board, officers, and controlling
  persons of the applicant, are of such character, experience,  competence
  and  standing  in the community as to give reasonable assurance of their
  ability  to  conduct  the  affairs  of  the  proposed  continuing   care
  retirement  community  in  the best interest of the community and in the
  public interest, and to provide proper care to residents. In the case of
  an applicant that is controlled, the council must be satisfied that  the
  controlling  person  has  also acted in a manner that is consistent with
  the public interest;
    d.  the  applicant  has  otherwise  demonstrated  the  capability   to
  organize,  market,  manage, promote and operate the community and can be
  expected to meet its obligations in accordance with this article and  in
  accordance with its contracts with residents;
    e.  the  applicant  has demonstrated that the total number of beds for
  the nursing facility component and  the  adult  care  facility  bears  a
  reasonable  relation  to the number of independent living units proposed
  for such community; and
    f. with respect to communities which include a residential health care
  facility which does not require  establishment  approval  under  section
  twenty-eight hundred one-a of this chapter, the applicant has sufficient
  financial  resources and sources of future revenues for the operation of
  the residential health care facility component.
    7. Any change in  the  legal  entity  operating  the  continuing  care
  retirement  community, or in a controlling person of the community shall
  require  approval  in  the  same  manner  as  an  original  application;
  provided, however, that the council may waive any requirement to provide
  information  that  is not relevant to such change and provided, further,
  that the continued public need for the community shall be presumed.
    8. The operator  shall  designate  and  make  knowledgeable  personnel
  available  to  prospective  residents  to  answer  questions  about  any
  information contained in  the  disclosure  statement  or  contract.  The
  disclosure  statement  and the contract shall each state on the cover or
  top of the first page in bold twelve point  print  the  following  "This
  matter involves a substantial financial investment and a legally binding
  contract.  In evaluating the disclosure statement and the contract prior
  to any commitment, it is recommended that you consult with  an  attorney

  and  financial  advisor  of your choice, if you so elect, who can review
  these documents with you."
    9.  If  the  council  approves the application, the commissioner shall
  issue the certificate of authority to the applicant.