2023 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