2023 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.