§ 4655 — Certificate of authority required; application and approval

* § 4655. Certificate of authority required; application and approval.\n1. No person shall construct, expand, acquire, maintain, or operate a\nfee-for-service continuing care retirement community, or enter into a\ncontract as an operator, or solicit the execution of any contract for\nfee-for-service continuing care retirement community services to be\nprovided within the state or advertise itself or otherwise hold itself\nas a "fee-for-service continuing care retirement community", without\nobtaining a certificate of authority pursuant to this article; provided,\nhowever, nothing in this subdivision shall prohibit a person, authorized\npursuant to section forty-six hundred seventy-four or forty-six hundred\nseventy-five of this article, from entering into priority reservation\nagreements, soliciting, collecting or receiving priority reservation\nfees, or constructing and maintaining sales offices and model units with\nrespect to a proposed fee-for-service continuing care retirement\ncommunity. Such facility shall obtain approval to utilize residential\nhealth care facility beds authorized under subdivision five of section\nforty-six hundred four of this chapter and/or shall meet such other\nconditions for acquisition of the residential health care facility beds\nas the commissioner may determine.\n 2. In order to receive a certificate of authority to enter into\ncontracts with respect to a particular community, a person or persons,\nhereinafter designated as the applicant, shall apply for a certificate\nof authority on forms prescribed by the commissioner and, in addition,\nshall submit the following:\n a. a feasibility study, including a market analysis describing the\ncharacteristics of the population to be served;\n b. an initial disclosure statement as provided pursuant to section\nforty-six hundred fifty-seven of this article;\n c. a copy of the proposed forms of contracts to be entered into with\nresidents of the community;\n d. complete details of any agreements with a licensed insurer,\nincluding copies of proposed contracts, requiring the insurer to assume,\nwholly or in part, the cost of medical or health related services to be\nprovided to a resident pursuant to a fee-for-service continuing care\ncontract;\n e. a copy of each of the basic organizational documents and agreements\nof the applicant of all participating entities;\n f. a copy of the bylaws, rules and regulations, and internal governing\ndocuments of the applicant;\n g. architectural program and sketches for the community;\n h. the proposed community plan, including the number of independent\nliving units, skilled nursing facility beds, adult care facility beds,\nif any, and a description of other social and health services provided\nby the community;\n i. copies of such financial and personal disclosure information as\nrequired by the council for the applicant and members of the board,\nofficers, and controlling persons of the proposed fee-for-service\ncontinuing care retirement community, including:\n (i) information necessary for the determination by the council of\ncharacter, competence and experience, where information adequate to make\nsuch determinations is not otherwise available to the council,\n (ii) a list of continuing care retirement communities, fee-for-service\ncontinuing care retirement communities, adult care facilities and health\ncare facilities owned or operated by the applicant, by any controlling\npersons of the applicant, or by entities with which the members of the\napplicant's board are affiliated; the address of each such facility; and\nthe dates of ownership or operation of each such facility,\n (iii) in the event that any such community or facility specified in\nthis subdivision, while under the control or operation of the applicant,\nor any controlling person, has been subjected to a limitation,\nwithdrawal, or refusal to grant accreditation by a recognized\naccreditation organization, because of failure to comply with standards\ngoverning the conduct and operation of the facility, information that\ndescribes the nature of the violation, the agency or body enforcing the\nstandard (including its name and address), the steps taken by the\nfacility to remedy the violation, and an indication of whether any\naccreditation has since been restored, and\n (iv) a statement as to whether the applicant or any of its officers,\ndirectors, partners, managers or a principal, parent or subsidiary\ncorporation:\n (A) has been convicted of a crime or pleaded nolo contendre to a\nfelony charge, or been held liable or enjoined in a civil action by\nfinal judgement if the criminal or civil action involved fraud,\nembezzlement, fraudulent conversion, or misappropriation of property,\n (B) had a prior discharge in bankruptcy or was found insolvent in any\ncourt action, or\n (C) is or was subject to a currently effective injunctive or\nrestrictive order or federal or state administrative order relating to\nbusiness activity or health care as a result of an action brought by a\npublic agency or department, including, without limitation, actions\naffecting a license to operate a hospital as defined by section\ntwenty-eight hundred one of this chapter, or a facility required to be\nlicensed or certified by the department. The statement shall set forth\nthe court or agency, date of conviction or judgement, the penalty\nimposed or damages assessed, or the date, nature and issuer of the\norder;\n j. information which describes the populations to be served; and\n k. any other information as may be required by regulations adopted\npursuant to this article.\n 3. Nothing in this article shall be construed to enlarge, diminish or\nmodify: a social services district's otherwise valid recovery under\nsection three hundred sixty-nine of the social services law, nor medical\nassistance eligibility under title eleven of article five of the social\nservices law, nor applicable provisions of the estates, powers and\ntrusts law. Except as otherwise provided in this article, the activities\nof fee-for-service continuing care retirement communities shall be\nsubject to any other law governing such activities including but not\nlimited to article twenty-eight of this chapter and article seven of the\nsocial services law and regulations promulgated thereunder; provided,\nhowever, that the provisions of paragraphs (d) and (e) of subdivision\nfour of section twenty-eight hundred one-a and section twenty-eight\nhundred two of this chapter shall not apply, and provided that the\nprovisions of paragraph (a) of subdivision one and the provisions of\nsubdivision two of section four hundred sixty-one-b of the social\nservices law with respect to public need and the provisions of\nsubdivision one of section four hundred sixty-one-c of the social\nservices law shall not apply to residents who have been admitted in\naccordance with a fee-for-service continuing care contract provided\nthat, upon admission to the adult care facility, such residents shall be\ngiven a notice which shall include, at a minimum, information regarding\nfacility services, resident responsibilities, supplemental services,\nresident rights and protections and circumstances that warrant transfer.\nThe number of residential health care facility beds available pursuant\nto subdivision four of this section, without proof of public need\ntherefor, shall be reduced by the number of residential health care\ndemonstration facility beds that are approved pursuant to this article.\n 4. Up to three hundred fifty residential health care facility beds, as\nauthorized in article forty-six of this chapter, that may be approved as\ncomponents of fee-for-service continuing care retirement communities\nshall not be considered by the department and the health systems\nagencies in the determination of public need for residential health care\nfacility services.\n 4-a. No certificate of authority shall be issued unless an application\nmeeting the requirements of this section and all other requirements\nestablished by law has been approved by:\n a. the commissioner as to the financial feasibility of the facility\nand the form and content of the proposed contracts to be entered into\nwith residents;\n b. the commissioner as to those aspects of the application relating to\nadult care facility beds, if any;\n c. the public health council under section twenty-eight hundred one-a\nof this chapter as to the establishment of a skilled nursing facility by\nthe applicant and as to such other facilities and services as may\nrequire the public health council's approval of the application;\nprovided, however, that the recommendations of the state hospital review\nand planning council and the health systems agency having geographical\njurisdiction of the area where the fee-for-service continuing care\nretirement community is located shall not be required with respect to\nthe establishment of an on-site or affiliated residential health care\nfacility to serve residents as part of the fee-for-service continuing\ncare retirement community, for up to the total number of residential\nhealth care facility beds provided for in subdivision four of this\nsection in communities statewide;\n d. the commissioner under section twenty-eight hundred two of this\nchapter; provided, however, that, the recommendations of the state\nhospital review and planning council and the health systems agency\nhaving geographical jurisdiction of the area where the fee-for-service\ncontinuing care retirement community is located shall not be required\nwith respect to the construction of an on-site or affiliated residential\nhealth care facility to serve residents as part of the fee-for-service\ncontinuing care retirement community, for up to the total number of\nresidential health care facility beds provided for in subdivision four\nof this section in communities statewide; and\n e. the attorney general as to those aspects of the application\nrelating to a cooperative, condominium or other equity arrangement for\nthe independent living unit, if any.\n 4-b. The applicant shall agree to notify the commissioner at least\nsixty days in advance of any change in the rates to be charged to a\nresident by the operator for any entrance fee, monthly care fee and/or\nany separate charges for the housing component including, but not\nlimited to, cooperative or condominium fees.\n 5. If the applicant has satisfied the criteria required by subdivision\nfour-a of this section have been obtained, the commissioner shall either\napprove or reject the application. In order to approve the application,\nthe commissioner shall have determined that:\n a. the proposed fee-for-service continuing care retirement community\nwill meet a need and will fulfill the purposes of this article;\n b. the applicant has satisfied the requirements of this article;\n c. the applicant has demonstrated to the satisfaction of the council\nthat the applicant and members of the board, officers, and controlling\npersons of the applicant, are of such character, experience, competence\nand standing in the community as to give reasonable assurance of their\nability to conduct the affairs of the proposed fee-for-service\ncontinuing care retirement community in the best interest of the\ncommunity and in the public interest, and to provide proper care to\nresidents. In the case of an applicant that is controlled, the council\nmust be satisfied that the controlling person has also acted in a manner\nthat is consistent with the public interest;\n d. the applicant has otherwise demonstrated the capability to\norganize, market, manage, promote and operate the community and can be\nexpected to meet its obligations in accordance with this article and in\naccordance with its contracts with residents;\n e. the applicant has demonstrated that the total number of beds for\nthe nursing facility component and the adult care facility bears a\nreasonable relation to the number of independent living units proposed\nfor such community; and\n f. with respect to communities which include a residential health care\nfacility which does not require establishment approval under section\ntwenty-eight hundred one-a of this chapter, the applicant has sufficient\nfinancial resources and sources of future revenues for the operation of\nthe residential health care facility component.\n 6. Any change in the legal entity operating the fee-for-service\ncontinuing care retirement community, or in a controlling person of the\ncommunity shall require approval in the same manner as an original\napplication; provided, however, that the commissioner may waive any\nrequirement to provide information that is not relevant to such change\nand provided, further, that the continued public need for the community\nshall be presumed.\n 7. The operator shall designate and make knowledgeable personnel\navailable to prospective residents to answer questions about any\ninformation contained in the disclosure statement or contract. The\ndisclosure statement and the contract shall each state on the cover or\ntop of the first page in bold twelve point print the following "This\nmatter involves a substantial financial investment and a legally binding\ncontract. In evaluating the disclosure statement and the contract prior\nto any commitment, it is recommended that you consult with an attorney\nand financial advisor of your choice, if you so elect, who can review\nthese documents with you."\n 8. The commissioner shall issue a certificate of authority to the\napplicant upon approval of the application.\n * NB There are 2 § 4655's\n