NY Pub Health L § 4604 (2021)
2021 New York Laws PBH - Public Health Article 46 - 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;   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 or continuing care at home 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. 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 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 as to those aspects of the application relating to adult care facility beds, if any;   c.   the   public  health  and  health  planning  council  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 and health  planning  council's  approval  of  the  application;   provided, however,  that  the  recommendations of 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 public health and health 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.