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 of the community;    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;    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  standardsgoverning  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  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  of  social  services.  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  continuing  care  retirement community 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 insurance 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  insurance  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 insurance  as  to  any  monthly  care  fee  charged  to  a  resident  which may be increased or decreased subject to  approval by the superintendent of insurance, 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  of  social  services 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 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  state  hospital  review  and  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; ande. 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  attorneyand  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.