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 needtherefor, 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, competenceand 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