NY Pub Health L § 4655 (2021)
2021 New York Laws PBH - Public Health Article 46-A - Fee-for-Service Continuing Care Retirement Communities Demonstration Program 4655 - Certificate of Authority Required; Application and Approval.

* § 4655. Certificate of authority required; application and approval. 1.  No  person  shall construct, expand, acquire, maintain, or operate a fee-for-service continuing care retirement community, or  enter  into  a contract  as  an  operator, or solicit the execution of any contract for fee-for-service continuing care  retirement  community  services  to  be provided  within  the state or advertise itself or otherwise hold itself as a "fee-for-service 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 seventy-four or forty-six hundred seventy-five 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  fee-for-service  continuing  care   retirement community.  Such  facility  shall obtain approval to utilize residential health care facility beds authorized under subdivision five  of  section forty-six  hundred  four  of  this  chapter and/or shall meet such other conditions for acquisition of the residential health care facility  beds as the commissioner may determine.   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 initial disclosure statement as  provided  pursuant  to  section forty-six hundred fifty-seven of this article;   c.  a  copy of the proposed forms of contracts to be entered into with residents of the community;   d. 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  fee-for-service  continuing  care contract;   e. a copy of each of the basic organizational documents and agreements of the applicant of all participating entities;   f. a copy of the bylaws, rules and regulations, and internal governing documents of the applicant;   g. architectural program and sketches for the community;   h.  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;   i. copies of such 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  fee-for-service 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, fee-for-service 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  contendre  to  a felony  charge,  or  been  held  liable or enjoined in a civil action by final  judgement  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, or  (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 judgement, the penalty imposed or damages assessed, or the  date,  nature  and  issuer  of  the order;   j. information which describes the populations to be served; and   k.  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 fee-for-service  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  fee-for-service  continuing  care 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  four  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. Up to three hundred fifty residential health care facility beds, as authorized in article forty-six of this chapter, that may be approved as components  of  fee-for-service  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.   4-a. 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. the commissioner as to the financial feasibility  of  the  facility and  the  form  and content of the proposed contracts to be entered into with residents;   b. the commissioner 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  fee-for-service  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 fee-for-service continuing care retirement community, for up to the  total  number  of  residential health  care  facility  beds  provided  for  in subdivision four 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 fee-for-service 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 fee-for-service continuing care retirement community, for up  to  the  total  number  of residential  health  care facility beds provided for in subdivision four 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.   4-b. The applicant shall agree to notify  the  commissioner  at  least sixty  days  in  advance  of  any change in the rates to be charged to a resident by the operator for any entrance fee, monthly care  fee  and/or any  separate  charges  for  the  housing  component  including, but not limited to, cooperative or condominium fees.   5. If the approvals required by subdivision  four-a  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 fee-for-service continuing care  retirement  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  fee-for-service 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.   6.  Any  change  in  the  legal  entity  operating the fee-for-service 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.   7.  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."   8.  If  the  council  approves the application, the commissioner shall issue a certificate of authority to the applicant.   * NB There are 2 § 4655's