Bill Text: NY S05172 | 2017-2018 | General Assembly | Introduced
Bill Title: Enhances the authority of the department of health to supervise and regulate continuing care retirement communities.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO HEALTH [S05172 Detail]
Download: New_York-2017-S05172-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5172 2017-2018 Regular Sessions IN SENATE March 10, 2017 ___________ Introduced by Sen. HANNON -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to promoting the development, expansion and efficient operation of continuing care retirement communities; and providing for the repeal of certain provisions upon expiration thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs e and f of subdivision 2-b of section 4601 of 2 the public health law, as amended by chapter 7 of the laws of 2015, are 3 amended and a new paragraph g is added to read as follows: 4 e. communities established under this article and offering fee-for- 5 service continuing care contracts must offer, along with such fee-for- 6 service continuing care contracts, life care and/or continuing care 7 contracts as defined in subdivision eight-a of this section; [and] 8 f. communities established under this article offering continuing care 9 at home contracts must also offer continuing care retirement contracts 10 and must maintain a continuing care retirement community that operates 11 in support of the continuing care at home contracts[.]; and 12 g. for purposes of this article, any reference to "continuing care 13 retirement community" or "community" shall also apply to the term "life 14 plan community". 15 § 2. Paragraph a of subdivision 8 of section 4651 of the public health 16 law, as amended by chapter 545 of the laws of 2004, is amended to read 17 as follows: 18 a. "Fee-for-service continuing care retirement community" or "communi- 19 ty" shall mean a facility or facilities established pursuant to this 20 article to provide a comprehensive, cohesive living arrangement for the 21 elderly, oriented to the enhancement of the quality of life, pursuant to 22 the terms of the fee-for-service continuing care contract on a fee-for- 23 service schedule. Such facility, at a minimum, shall provide access to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10281-01-7S. 5172 2 1 on-site geriatric services, including, but not limited to, nursing 2 facility services, services provided by an adult care facility, home 3 health services, a meal plan, social services and independent living 4 units. For purposes of this article, any reference to "fee-for-service 5 continuing care retirement community" or "community" shall also apply to 6 the term "life plan community". 7 § 3. Section 4602 of the public health law, as added by chapter 689 of 8 the laws of 1989, the section heading and subdivisions 1 and 2 as 9 amended by chapter 659 of the laws of 1997, the opening paragraph of 10 subdivision 1 as amended by section 81 of part A of chapter 62 of the 11 laws of 2011, the opening paragraph of subdivision 2 as amended by chap- 12 ter 549 of the laws of 2014, subdivision 3 as amended by chapter 155 of 13 the laws of 2012, is amended to read as follows: 14 § 4602. Continuing care retirement community council; powers and 15 duties. 1. The continuing care retirement community council is hereby 16 established, to consist of the following, or their designees: the attor- 17 ney general; the commissioner; the director of the office for the aging; 18 and eight public members appointed by the governor with the advice and 19 consent of the senate. Such public members shall be representative of 20 the public, and have a demonstrated expertise or interest in continuing 21 care retirement communities; provided that no [more] less than [one] 22 three such [member] members shall be a sponsor, owner, operator, manag- 23 er, member of a board of directors, or shareholder of a continuing care 24 retirement community. At least two public members shall be residents of 25 a continuing care retirement community. At least one of the public 26 members shall be a representative of an organization with demonstrated 27 experience in representing the interests of senior citizens. The public 28 members of the council shall have fixed terms of four years. The council 29 shall be chaired by the commissioner or his or her designee. 30 Members of such council shall serve without compensation for their 31 services as members of the council, except that each of them may be 32 allowed the necessary and actual expenses which [he] they shall incur in 33 the performance of [his] their duties under this article. 34 2. The council shall meet as often as may be deemed necessary to 35 fulfill its responsibilities. The council shall have the following 36 powers and duties: 37 a. to [approve or reject applications to obtain a certificate of38authority for the establishment and operation of a continuing care39retirement community. In reviewing applications, the council shall40consider the extent to which the applications reflect various sponsor-41ships, organizational structures, geographic dispersion, and the public42benefit. In determining the public benefit of a community requiring43construction of a total nursing facility component greater than or equal44to ninety beds, the council shall obtain and consider the recommendation45of the state hospital review and planning council with regard to the46effect of the construction of the community's nursing facility beds upon47existing facilities in the same geographic area] assist the commissioner 48 on policy matters related to the establishment and operation of continu- 49 ing care retirement communities; 50 b. to [require the reporting of such facts and information as the51council may deem necessary to enforce the provisions of this article;] 52 assist the commissioner in the development of the state's overall policy 53 regarding continuing care retirement communities and cause studies and 54 research to be conducted as it may deem advisable and necessary; and 55 c. [to coordinate the oversight of operating communities and to assign56review and regulatory responsibility for particular aspects of suchS. 5172 3 1communities to the appropriate agencies, consistent with their legal2authority, to assure consistent state supervision without duplication of3inspection or regulatory review;4d.] to make such recommendations to the governor and the legislature 5 as may be necessary to encourage or further regulate the development of 6 continuing care retirement communities[;7e. to establish and charge equitable and reasonable annual charges for8operators, not to exceed fifty dollars per approved living unit, to9subsidize, in part, expenditures incurred in reviewing applications for10certificates of authority and in inspecting, regulating, supervising and11auditing continuing care retirement communities;12f. to review reports from the participating agencies regarding the13operations and financial management of approved communities, including14any reports regarding the financial condition of any community that may15be in need of close supervision and any reports of deficiencies in the16provision of health or social services to residents of any community;17g. to adopt rules and regulations and amendments thereto to effectuate18the provisions of this article;19h. to revoke, suspend, limit, or annul a certificate of authority20under conditions set forth in section forty-six hundred fifteen of this21article, including when such action is taken at the specific request of22any participating council agency. When action has been taken by the23commissioner pursuant to subdivision seven of section forty-six hundred24three of this article, the council shall meet as soon as reasonably25possible to approve or disapprove the action of the commissioner and26shall take such further action as may be appropriate;27i. to develop guidelines for applications for certificates of authori-28ty;29j. to make a final determination regarding an application for authori-30zation to enter into priority reservation agreements where the commis-31sioner has proposed to reject such application;32k. to require the reporting of such facts and information as the coun-33cil may deem necessary to determine whether characteristics of residen-34tial health care demonstration facilities such as comprehensive systems35of residential and support services for the elderly may be successfully36incorporated into existing or approved continuing care retirement commu-37nities;38l. to review and approve or reject applications by continuing care39retirement community operators to use entrance fees to assist the opera-40tor in financing the construction or purchase of a proposed continuing41care retirement community in accordance with paragraph b of subdivision42six of section forty-six hundred ten of this article; and43m. to review and approve or reject any proposed financing by indus-44trial development agencies of continuing care retirement communities45pursuant to article eighteen-A of the general municipal law as author-46ized by section forty-six hundred four-a of this article.473. The council shall establish guidelines under which the commissioner48is authorized to approve or reject any proposed refinancing, if the49council has already approved an application pursuant to paragraph a of50subdivision two of this section]. 51 § 4. Section 4603 of the public health law, as amended by chapter 659 52 of the laws of 1997, subdivisions 10 and 11 as amended and subdivision 53 12 as added by chapter 401 of the laws of 2003, is amended to read as 54 follows: 55 § 4603. Commissioner; power and duties. The commissioner[, in consul-56tation with the council,] shall have the following powers and duties:S. 5172 4 1 1. a. to receive applications from potential operators of continuing 2 care retirement communities and to distribute such applications for 3 review to the participating agencies; 4 [2.] b. to collect and compile recommendations from the participating 5 agencies and to present consolidated materials[, including recommenda-6tions, to the council for its review and action]; 7 [3.] c. to develop uniform forms for applications for certificates of 8 authority, to review the status of such applications, and to coordinate 9 the review of such applications in order to minimize duplication or 10 delay; 11 [4.] d. to provide information to entities wishing to establish 12 continuing care retirement communities and to persons interested in 13 becoming residents of such communities and to assist operators and resi- 14 dents of such communities, to the extent appropriate, with concerns 15 relating to the operation of such facilities; 16 [5.] e. to [issue certificates of authority to those applicants17approved by the council] approve or reject applications to obtain a 18 certificate of authority for the establishment and operation of a 19 continuing care retirement community. In reviewing applications, the 20 commissioner shall consider the extent to which the applications reflect 21 various sponsorships, organizational structures, geographic dispersion 22 and the public benefit. In determining the public benefit of a community 23 requiring construction of a total nursing facility component greater 24 than or equal to ninety beds, the commissioner shall obtain and consider 25 the recommendation of the public health and health planning council with 26 regard to the effect of the construction of the community's nursing 27 facility beds upon existing facilities in the same geographic area; 28 [6.] f. to coordinate the [interagency regulatory review of the appli-29cations, development and operations of communities in order to minimize30duplication or delay] oversight of operating communities and to consol- 31 idate review and regulatory responsibility, including inspections of 32 continuing care retirement community facilities, to assure consistent 33 state supervision without duplication of inspection or regulatory 34 review; 35 [7.] g. if the immediate health, safety, or financial needs of a 36 community's residents are in jeopardy, to suspend or limit a certificate 37 of authority pursuant to subdivision two of section forty-six hundred 38 fifteen of this article. If the commissioner suspends a certificate of 39 authority, he or she shall [immediately] notify the council; 40 [8.] h. to [make recommendations concerning and to promulgate rules41and regulations and amendments thereto that have been adopted by the42council to effectuate the provisions of this article] adopt rules and 43 regulations and amendments thereto to effectuate the provisions of this 44 article; 45 [9.] i. to carry out any other responsibilities entrusted to the 46 commissioner pursuant to this chapter that may be necessary with regard 47 to the health care activities of continuing care retirement communities; 48 [10.] j. to make available to all prospective operators all pertinent 49 regulations regarding health and insurance necessary to comply with this 50 article; 51 [11.] k. to approve or reject applications for authorization, by 52 prospective continuing care retirement community applicants, entities 53 that have filed an application for a certificate of authority and opera- 54 tors, to enter into cancelable priority reservation agreements and to 55 collect refundable priority reservation fees from prospective resi- 56 dents[; provided that in any case where the commissioner proposes toS. 5172 5 1reject such application, the council shall meet within a reasonable2period of time not to exceed ninety days to make a final determination3regarding such application]; [and412.] l. to approve or reject any proposed refinancing consistent with 5 the guidelines established pursuant to subdivision three of section 6 forty-six hundred two of this article[.]; 7 m. to revoke, suspend, limit or annul a certificate of authority under 8 conditions set forth in section forty-six hundred fifteen of this arti- 9 cle, including when such action is taken at the specific request of any 10 participating council agency; 11 n. to require the reporting of such facts and information to determine 12 whether characteristics of residential health care demonstration facili- 13 ties such as comprehensive systems of residential and support services 14 for the elderly may be successfully incorporated into existing or 15 approved continuing care retirement communities; 16 o. to review and approve or reject applications by continuing care 17 retirement community operators to use entrance fees to assist the opera- 18 tor in financing the construction or purchase of a proposed continuing 19 care retirement community in accordance with paragraph b of subdivision 20 six of section forty-six hundred ten of this article; and 21 p. to review and approve or reject any proposed financing by indus- 22 trial development agencies of continuing care retirement communities 23 pursuant to article eighteen-A of the general municipal law as author- 24 ized by section forty-six hundred four-a of this article. 25 2. Notwithstanding any provision of law to the contrary, this subdivi- 26 sion shall apply to any application to obtain a certificate of authority 27 for the establishment and operation of a continuing care retirement 28 community or fee-for-service continuing care retirement community and 29 any application for the certification or licensure of any component of a 30 continuing care retirement community or fee-for-service continuing care 31 retirement community. 32 a. For an application to obtain a certificate of authority for the 33 establishment and operation of a continuing care retirement community 34 submitted to the commissioner pursuant to this article and article 35 forty-six-A of this chapter, within one hundred eighty calendar days of 36 the department deeming the application complete, the commissioner shall 37 make a decision to approve or disapprove the application. If the commis- 38 sioner determines to disapprove the application, the basis of such 39 disapproval shall be provided in writing; however, disapproval shall not 40 be based on the incompleteness of the application. If the commissioner 41 fails to take action to approve or disapprove the application within one 42 hundred eighty days of the application being deemed complete, the appli- 43 cation shall be deemed approved. 44 b. The commissioner, in consultation with the public health and health 45 planning council, shall develop a streamlined application review and 46 approval process to be available for use on or before January first, two 47 thousand eighteen in relation to the approval of components of a contin- 48 uing care retirement community, including, but not limited to, a resi- 49 dential health care facility, adult care facility and assisted living 50 facility; provided, however, that no such streamlined application review 51 and approval process shall limit or restrict the authority of the public 52 health and planning council to issue final approval or disapproval for 53 the establishment, construction or addition of residential health care 54 facility beds. 55 c. For an application that requires approval by the public health and 56 health planning council, the application shall be placed on the nextS. 5172 6 1 council agenda following the commissioner deeming the application 2 complete. 3 d. Where the commissioner requires the applicant to submit information 4 to satisfy a contingency imposed on the approval of an application, the 5 commissioner shall have thirty calendar days to review and approve or 6 disapprove the submitted information. If the commissioner determines 7 that the information is incomplete, the department shall notify the 8 applicant in writing and provide the applicant with ten calendar days to 9 correct the deficiency or provide additional information. If the commis- 10 sioner determines that the submitted information does not satisfy the 11 contingency, the basis for such disapproval shall be provided in writ- 12 ing; however, disapproval shall not be based on the incompleteness of 13 the application. Within fifteen calendar days of complete satisfaction 14 of a contingency, the commissioner shall transmit the final approval 15 letter to the applicant. 16 § 5. Subdivision 1 of section 4604 of the public health law, as 17 amended by chapter 659 of the laws of 1997, is amended to read as 18 follows: 19 1. No person shall construct, expand, acquire, maintain, or operate a 20 continuing care retirement community, or enter into a contract as an 21 operator, or solicit the execution of any contract for continuing care 22 retirement community services to be provided within the state or adver- 23 tise itself or otherwise hold itself as a "continuing care retirement 24 community" or a "life plan community", without obtaining a certificate 25 of authority pursuant to this article; provided, however, nothing in 26 this subdivision shall prohibit a person, authorized pursuant to section 27 forty-six hundred twenty-one or forty-six hundred twenty-two of this 28 article, from entering into priority reservation agreements, soliciting, 29 collecting or receiving priority reservation fees, or constructing and 30 maintaining sales offices and model units with respect to a proposed 31 continuing care retirement community. 32 § 6. Subdivision 1 of section 4655 of the public health law, as 33 amended by chapter 545 of the laws of 2004, is amended to read as 34 follows: 35 1. No person shall construct, expand, acquire, maintain, or operate a 36 fee-for-service continuing care retirement community, or enter into a 37 contract as an operator, or solicit the execution of any contract for 38 fee-for-service continuing care retirement community services to be 39 provided within the state or advertise itself or otherwise hold itself 40 as a "fee-for-service continuing care retirement community" or a "life 41 plan community", without obtaining a certificate of authority pursuant 42 to this article; provided, however, nothing in this subdivision shall 43 prohibit a person, authorized pursuant to section forty-six hundred 44 seventy-four or forty-six hundred seventy-five of this article, from 45 entering into priority reservation agreements, soliciting, collecting or 46 receiving priority reservation fees, or constructing and maintaining 47 sales offices and model units with respect to a proposed fee-for-service 48 continuing care retirement community. Such facility shall obtain 49 approval to utilize residential health care facility beds authorized 50 under subdivision five of section forty-six hundred four of this chapter 51 and/or shall meet such other conditions for acquisition of the residen- 52 tial health care facility beds as the commissioner may determine. 53 § 7. Subdivision 3 of section 4604 of the public health law, as 54 amended by chapter 7 of the laws of 2015, is amended to read as follows: 55 3. Nothing in this article shall be construed to enlarge, diminish or 56 modify: a social services district's otherwise valid recovery underS. 5172 7 1 section three hundred sixty-nine of the social services law, nor medical 2 assistance eligibility under title eleven of article five of the social 3 services law nor applicable provisions of the estates, powers and trusts 4 law. Except as otherwise provided in this article, the activities of 5 continuing care retirement communities shall be subject to any other law 6 governing such activities including but not limited to article twenty- 7 eight of this chapter and article seven of the social services law and 8 regulations promulgated thereunder; provided, however, that the 9 provisions of paragraphs (d) and (e) of subdivision four of section 10 twenty-eight hundred one-a and section twenty-eight hundred two of this 11 chapter shall not apply, and provided that the provisions of paragraph 12 (a) of subdivision one and the provisions of subdivision two of section 13 four hundred sixty-one-b of the social services law with respect to 14 public need and the provisions of subdivision one of section four 15 hundred sixty-one-c of the social services law shall not apply to resi- 16 dents who have been admitted in accordance with a contract provided 17 that, upon admission to the adult care facility, such residents shall be 18 given a notice which shall include, at a minimum, information regarding 19 facility services, resident responsibilities, supplemental services, 20 resident rights and protections and circumstances that warrant transfer, 21 subject to the provisions of subdivision twenty-one of section forty-six 22 hundred eight of this article. The number of residential health care 23 facility beds available pursuant to subdivision five of this section, 24 without proof of public need therefor, shall be reduced by the number of 25 residential health care demonstration facility beds that are approved 26 pursuant to this article. 27 § 8. Subdivision 3 of section 4655 of the public health law, as added 28 by chapter 519 of the laws of 2004, is amended to read as follows: 29 3. Nothing in this article shall be construed to enlarge, diminish or 30 modify: a social services district's otherwise valid recovery under 31 section three hundred sixty-nine of the social services law, nor medical 32 assistance eligibility under title eleven of article five of the social 33 services law, nor applicable provisions of the estates, powers and 34 trusts law. Except as otherwise provided in this article, the activities 35 of fee-for-service continuing care retirement communities shall be 36 subject to any other law governing such activities including but not 37 limited to article twenty-eight of this chapter and article seven of the 38 social services law and regulations promulgated thereunder; provided, 39 however, that the provisions of paragraphs (d) and (e) of subdivision 40 four of section twenty-eight hundred one-a and section twenty-eight 41 hundred two of this chapter shall not apply, and provided that the 42 provisions of paragraph (a) of subdivision one and the provisions of 43 subdivision two of section four hundred sixty-one-b of the social 44 services law with respect to public need and the provisions of subdivi- 45 sion one of section four hundred sixty-one-c of the social services law 46 shall not apply to residents who have been admitted in accordance with a 47 fee-for-service continuing care contract provided that, upon admission 48 to the adult care facility, such residents shall be given a notice which 49 shall include, at a minimum, information regarding facility services, 50 resident responsibilities, supplemental services, resident rights and 51 protections and circumstances that warrant transfer, subject to the 52 provisions of subdivision seventeen of section forty-six hundred fifty- 53 nine of this article. The number of residential health care facility 54 beds available pursuant to subdivision four of this section, without 55 proof of public need therefor, shall be reduced by the number of resi-S. 5172 8 1 dential health care demonstration facility beds that are approved pursu- 2 ant to this article. 3 § 9. Subdivision 4 of section 4604 of the public health law, as 4 amended by chapter 659 of the laws of 1997, subparagraphs (i), (ii) and 5 (iii) of paragraph a as further amended by section 104 of part A of 6 chapter 62 of the laws of 2011, paragraphs b and d as amended by chapter 7 549 of the laws of 2014, paragraph c as amended by chapter 7 of the laws 8 of 2015, is amended to read as follows: 9 4. No certificate of authority shall be issued unless an application 10 meeting the requirements of this section and all other requirements 11 established by law has been approved by the commissioner: 12 a. [(i)] the [superintendent of financial services as to the actuarial13principles involved, the financial feasibility of the facility, the form14and content of the proposed contracts to be entered into with residents15and insurance contracts between an operator and an insurer requiring the16insurer to assume, wholly or in part, the cost of medical or health17related services to be provided to a resident] actuarial principles 18 involved, the financial feasibility of the facility and the form and 19 content of the proposed contracts to be entered into with residents, 20 provided that the review may be conducted by the commissioner or his or 21 her designee, including any necessary independent actuarial review; 22 [(ii) the superintendent of financial services as to] b. the rates and 23 rating methodology, if any, to be used by the operator to determine any 24 entrance fee, monthly care fee and/or any separate charges for the hous- 25 ing component of the continuing care contract including but not limited 26 to a cooperative or condominium fee charged to the resident as proposed 27 in said operator's application for certificate of authority. Subsequent 28 increases in any entrance or monthly care fee in excess of fees calcu- 29 lated pursuant to the approved rating methodology shall require approval 30 of the [superintendent] commissioner. The term "rating methodology" as 31 used herein shall incorporate a combination of variables including but 32 not limited to a pricing structure for comparable services, projected 33 operating and health care costs and the applicable inflationary impact 34 thereon, projected income and occupancy rates and the refundability 35 component of the continuing care retirement contract[.36(iii) the superintendent of financial services as to]; 37 c. any monthly care fee charged to a resident which may be increased 38 or decreased subject to approval by the [superintendent of financial39services] commissioner, provided, that monthly care fees may be 40 increased or decreased without specific approval as long as such 41 increase or decrease does not exceed a relevant cost index or indices 42 which reflect all components of continuing care including the costs 43 associated with provision of health care as determined and promulgated 44 at least annually by the [superintendent] commissioner or his or her 45 designee, including any necessary independent actuarial review, and 46 provided further that the [superintendent] commissioner is notified of 47 any such increase or decrease prior to its taking effect[.48(iv) An] d. the requirement that an individual resident's monthly care 49 fee shall not be modified because of the increased need for services of 50 that resident; 51 [b. the commissioner as to those] e. aspects of the application relat- 52 ing to adult care facility beds, if any; 53 [c.] f. following review by the public health and health planning 54 council as to the establishment of a skilled nursing facility by the 55 applicant and as to such other facilities and services as may require 56 the public health and health planning council's approval of the applica-S. 5172 9 1 tion; provided, however, that the recommendations of the health systems 2 agency having geographical jurisdiction of the area where the continuing 3 care retirement community is located shall not be required with respect 4 to the establishment of an on-site or affiliated residential health care 5 facility to serve residents as part of the continuing care retirement 6 community, for up to the total number of residential health care facili- 7 ty beds provided for in subdivision five of this section in communities 8 statewide; 9 [d. the commissioner under section twenty-eight hundred two of this10chapter;] g. provided, however, that, the recommendations of the public 11 health and health planning council and the health systems agency having 12 geographical jurisdiction of the area where the continuing care retire- 13 ment community is located shall not be required with respect to the 14 construction of an on-site or affiliated residential health care facili- 15 ty to serve residents as part of the continuing care retirement communi- 16 ty, for up to the total number of residential health care facility beds 17 provided for in subdivision five of this section in communities state- 18 wide; and 19 [e. the] h. upon consultation with the attorney general, as to those 20 aspects of the application relating to a cooperative, condominium or 21 other equity arrangement for the independent living unit, if any. 22 § 10. The opening paragraph of subdivision 6 of section 4604 of the 23 public health law, as amended by chapter 659 of the laws of 1997, is 24 amended to read as follows: 25 If the [approvals] applicant has satisfied the criteria required by 26 subdivision four of this section [have been obtained], the [council] 27 commissioner shall[, by majority vote,] either approve or reject the 28 application [within sixty days of the date on which the last such29approval has been obtained]. In order to approve the application, the 30 [council] commissioner shall have determined that: 31 § 11. Subdivisions 7 and 9 of section 4604 of the public health law, 32 subdivision 7 as amended by chapter 659 of the laws of 1997 and subdivi- 33 sion 9 as added by chapter 689 of the laws of 1989, are amended to read 34 as follows: 35 7. Any change in the legal entity operating the continuing care 36 retirement community, or in a controlling person of the community shall 37 require approval in the same manner as an original application; 38 provided, however, that the [council] commissioner may waive any 39 requirement to provide information that is not relevant to such change 40 and provided, further, that the continued public need for the community 41 shall be presumed. 42 9. [If the council approves the application, the] The commissioner 43 shall issue the certificate of authority to the applicant upon approval 44 of the application. 45 § 12. Section 4604-a of the public health law, as amended by chapter 46 659 of the laws of 1997, paragraph g of subdivision 2 as amended by 47 chapter 549 of the laws of 2014, is amended to read as follows: 48 § 4604-a. [Council] Commissioner approval required for industrial 49 development agency financing in connection with continuing care retire- 50 ment communities. 1. No person seeking financing in connection with a 51 continuing care retirement community through an industrial development 52 agency shall undertake such financing without the prior approval of the 53 [council] commissioner. Upon approving a proposed financing pursuant to 54 this section, the [council] commissioner shall issue a certificate of 55 authorization to the applicant.S. 5172 10 1 2. Prior to approving such financing, the [council] commissioner shall 2 find that: 3 a. The operator has (i) executed contracts for at least seventy 4 percent of all living units and has on deposit at least ten percent of 5 the entrance fees or purchase price for such units; or (ii) executed 6 contracts for at least sixty percent of all living units and has on 7 deposit at least twenty-five percent of the entrance fees or purchase 8 price for such units. 9 b. The operator has demonstrated capability to comply fully with the 10 requirements for a certificate of authority and has obtained a contin- 11 gent certificate of authority pursuant to section forty-six hundred four 12 of this article and the operator has agreed to meet the requirements of 13 article eighteen-A of the general municipal law. 14 c. The applicant is a not-for-profit corporation as defined in section 15 one hundred two of the not-for-profit corporation law that is (i) eligi- 16 ble for tax-exempt financing under this section and (ii) is exempt from 17 taxation pursuant to section 501(c)(3) of the federal internal revenue 18 code, and either has (i) an equity position in the community equivalent 19 to no less than fifteen percent of the amount to be financed in the 20 aggregate; or (ii) covenants (A) to meet a ratio of cash and investments 21 to outstanding debt (reserve ratio) of no less than twenty-five percent 22 commencing at the end of the first quarter after twenty-four months from 23 the receipt of a certificate of occupancy for the facility, and (B) to 24 maintain that reserve ratio, as tested quarterly based upon the facili- 25 ty's interim financial statements and annually based upon audited finan- 26 cial statements, until debt reduction equal to twenty-five percent of 27 total indebtedness is accomplished; and (c) to reduce total debt by 28 twenty-five percent of the total indebtedness at the time the certif- 29 icate of occupancy is received by no later than five years after the 30 receipt of the certificate of occupancy. 31 d. The operator has submitted in connection with the proposed financ- 32 ing a financial feasibility study, including a financial forecast and 33 market study prepared by an independent firm nationally recognized for 34 continuing care retirement community feasibility studies, demonstrating 35 to the satisfaction of the [council] commissioner the financial sound- 36 ness of the financing. In addition, the operator has submitted an analy- 37 sis of economic costs and benefits, including job creation and 38 retention, the estimated value of tax exemptions provided, the project's 39 impact on local businesses and the availability and comparative cost of 40 alternative financing sources. Such analysis shall be prepared by an 41 independent entity. 42 e. The operator will establish and maintain a fully funded debt 43 service reserve equal to the sum of maximum annual debt service (inter- 44 est plus annual scheduled principal payments, not including balloon 45 maturities, if any) on bonds authorized thereby having a maturity of ten 46 years or less, plus the maximum annual debt service on bonds authorized 47 thereby having a maturity of greater than ten years, provided, however, 48 that in the case of tax-exempt bond issues, such debt service reserve 49 shall not exceed the maximum amount permitted by federal tax law. 50 f. The operator will provide for such remedies or limitations of reme- 51 dies of bondholders as may be required by or consistent with the 52 provisions of this article and any regulations in existence at the time 53 of the issuance promulgated thereunder. 54 g. Unless all residents or continuing care at home contract holders 55 have life care contracts, the operator has adequately made the assur- 56 ances required by subdivision two of section forty-six hundred twenty-S. 5172 11 1 four of this article and has agreed to fund the liability in the event 2 that such resident's or contract holder's assets are insufficient to pay 3 for nursing facility services for a one year period. 4 3. In addition, an operator which is subject to the provisions of this 5 section shall: 6 a. provide the [council or its designee] commissioner with notice of 7 any monetary default or covenant default in connection with such financ- 8 ing and shall further notify the [council or its designee] commissioner 9 of any withdrawal from the debt service reserve fund established in 10 connection with such financing; 11 b. respond in writing to the operational recommendations of the [coun-12cil or its designee] commissioner with respect to protecting the inter- 13 ests of continuing care retirement community residents in the event of 14 any monetary default or covenant default provided for in connection with 15 such financing; 16 c. provide adequate security for the repayment of the bonds issued, 17 including the granting of liens on real and personal property and the 18 pledge of project revenues; the maintenance of minimum debt service 19 coverage and other financial ratios as shall be required in regulations 20 in existence at the time of issuance by the [council] commissioner; and 21 restrictions on other debt and expenditures; and 22 d. undertake to maintain the financial feasibility of the facility, 23 including the retention of an independent consultant to recommend and 24 help implement remedial action. 25 4. The [council] commissioner may request, and shall receive, the 26 technical assistance of any state agency or state public authority in 27 performing its functions under this article. 28 § 13. Paragraphs a and b of subdivision 2 of section 4605 of the 29 public health law, paragraph a as amended by chapter 659 of the laws of 30 1997 and paragraph b as amended by chapter 401 of the laws of 2003, are 31 amended to read as follows: 32 a. The commissioner[, in consultation with the council,] may authorize 33 an operator of a community with an on-site or affiliated residential 34 health care facility to provide[, for a limited period,] residential 35 health care facility services to persons, who are not residents of the 36 community, provided, however, that the operator shall not discriminate 37 in the admission, retention or care of any such person because such 38 person is or will be eligible for, or receives or will receive, medical 39 assistance benefits pursuant to title eleven of article five of the 40 social services law. For communities in existence prior to January 41 first, two thousand seventeen with an on-site or affiliated residential 42 health care facility, each community is authorized to continue to 43 provide residential health care facility services to persons who are not 44 residents of the community at a percentage deemed permissible by the 45 commissioner. For communities approved following January first, two 46 thousand seventeen with an on-site or affiliated residential health care 47 facility, each community shall be permitted to provide residential 48 health care facility services to persons who are not residents of the 49 community for a period of seven years, provided, however, that the oper- 50 ator may seek an extension of this authorization at the end of the 51 seven-year period upon written application to the commissioner. 52 b. [The] Upon written notice to the commissioner, [in consultation53with the council, may authorize] an operator of a community with an 54 on-site or affiliated adult care facility [to] may provide[, for a55limited period,] adult care facility services to persons, who are not 56 residents of the community, provided, however, that the operator shallS. 5172 12 1 not discriminate in the admission, retention or care of any such person 2 because such person is or will be eligible for, or receives or will 3 receive, medical assistance benefits pursuant to title eleven of article 4 five of the social services law or supplemental security income benefits 5 pursuant to title sixteen of the federal social security act and any 6 additional state payments made under title six of article five of the 7 social services law. For persons who are not residents of the community 8 at the time of admission to an adult care facility, the transfer of such 9 resident to an on-site or affiliated residential health care facility 10 due to medical necessity shall not constitute residential health care 11 facility services to persons who are not residents of the community. 12 § 14. Paragraphs a and b of subdivision 2 of section 4656 of the 13 public health law, as added by chapter 519 of the laws of 2004, are 14 amended to read as follows: 15 a. The commissioner[, in consultation with the council,] may authorize 16 an operator of a community with an on-site or affiliated residential 17 health care facility to provide[, for a limited period,] residential 18 health care facility services to persons, who are not residents of the 19 community, provided, however, that the operator shall not discriminate 20 in the admission, retention or care of any such person because such 21 person is or will be eligible for, or receives or will receive, medical 22 assistance benefits pursuant to title eleven of article five of the 23 social services law. For communities in existence prior to January 24 first, two thousand seventeen with an on-site or affiliated residential 25 health care facility, each community is authorized to continue to 26 provide residential health care facility services to persons who are not 27 residents of the community at a percentage deemed permissible by the 28 commissioner. For communities approved following January first, two 29 thousand seventeen with an on-site or affiliated residential health care 30 facility, each community shall be permitted to provide residential 31 health care facility services to persons who are not residents of the 32 community for a period of seven years, provided, however, that the oper- 33 ator may seek an extension of this authorization at the end of the 34 seven-year period upon written application to the commissioner. For 35 persons who are not residents of the community at the time of admission 36 to an adult care facility, the transfer of such resident to an on-site 37 or affiliated residential health care facility due to medical necessity 38 shall not constitute residential health care facility services to 39 persons who are not residents of the community. 40 b. [The] Upon written notice to the commissioner, [in consultation41with the council, may authorize] an operator of a community with an 42 on-site or affiliated adult care facility [to] may provide[, for a43limited period,] adult care facility services to persons, who are not 44 residents of the community, provided, however, that the operator shall 45 not discriminate in the admission, retention or care of any such person 46 because such person is or will be eligible for, or receives or will 47 receive, medical assistance benefits pursuant to title eleven of article 48 five of the social services law or supplemental security income benefits 49 pursuant to title sixteen of the federal social security act and any 50 additional state payments made under title six of article five of the 51 social services law. For persons who are not residents of the community 52 at the time of admission to an adult care facility, the transfer of such 53 resident to an on-site or affiliated residential health care facility 54 due to medical necessity shall not constitute residential health care 55 facility services to persons who are not residents of the community.S. 5172 13 1 § 15. Section 4605-a of the public health law, as added by chapter 7 2 of the laws of 2015, is amended to read as follows: 3 § 4605-a. Certificate of authority; authority to offer continuing care 4 at home contracts. A continuing care retirement community may offer 5 continuing care at home contracts upon approval by the [council] commis- 6 sioner to amend the continuing care retirement community's certificate 7 of authority. In order to qualify for an amendment to its certificate of 8 authority, the continuing care retirement community shall submit to the 9 commissioner the following: 10 1. a business plan to the commissioner [and superintendent] that 11 includes the following: 12 (a) a description of the continuing care at home services that will be 13 provided, the market that will be served by the continuing care at home 14 contracts, and the fees to be charged to prospective continuing care at 15 home contract holders; 16 (b) a copy of the proposed continuing care at home contract; and 17 (c) an actuarial study prepared by an independent actuary in accord- 18 ance with standards adopted by the American Academy of Actuaries demon- 19 strating the impact that the continuing care at home contracts will have 20 on the overall operations of the continuing care retirement community 21 and further demonstrating that the addition of continuing care at home 22 contracts will not jeopardize the financial solvency of the continuing 23 care retirement community. 24 2. a market feasibility study demonstrating to the commissioner [and25superintendent] sufficient consumer interest in continuing care at home 26 contracts and further demonstrating that the addition of continuing care 27 at home contracts will not have an adverse impact on the provision of 28 services to continuing care retirement contract holders. 29 3. materials that meet all requirements established by the [New York30state] department [of financial services]. 31 4. [A] a copy of the notification sent to continuing care retirement 32 contract holders describing the anticipated impact of the addition of 33 continuing care at home contracts on continuing care retirement communi- 34 ty resources and proof that such notification has been distributed to 35 all continuing care retirement contract holders. 36 § 16. Section 4605-b of the public health law, as added by chapter 7 37 of the laws of 2015, is amended to read as follows: 38 § 4605-b. Certificate of authority; limitation on continuing care at 39 home contracts. The number of continuing care at home contracts 40 approved on a certificate of authority shall be limited to: 41 1. The number of approved living units on the continuing care retire- 42 ment community's premises that are intended for ILU residents, except 43 that the [council] commissioner may approve additional contracts upon a 44 submission [to the commissioner] by an operator consistent with the 45 provisions set forth in section forty-six hundred five-a of this arti- 46 cle; 47 2. The demonstrated number of continuing care at home contract holders 48 that can be supported in the existing or approved future capacity of the 49 adult care facility and skilled nursing facility consistent with the 50 provisions set forth in section forty-six hundred five-a of this arti- 51 cle; and 52 3. Conditions set forth by the [New York state] department [of finan-53cial services], based upon the [superintendent] commissioner's assess- 54 ment of the following: 55 (a) the overall financial impact on the community; andS. 5172 14 1 (b) the submitted materials set forth in section forty-six hundred 2 five-a of this article. 3 § 17. Section 4607 of the public health law, as added by chapter 689 4 of the laws of 1989, paragraph d of subdivision 2 as amended by chapter 5 659 of the laws of 1997, is amended to read as follows: 6 § 4607. Annual statement. 1. Within four months of close of the oper- 7 ator's fiscal year, unless an extension of time to file has been grant- 8 ed, the operator shall file an annual statement with the commissioner 9 [and superintendent] showing the condition as of the last day of the 10 preceding calendar or fiscal year. If the commissioner [and superinten-11dent do] does not receive the annual statement within four months of the 12 end of the operator's fiscal year or have not granted an extension of 13 time to file, the [council] commissioner may charge a late fee. 14 2. The annual statement shall be in such form as the [council] commis- 15 sioner prescribes and shall contain at least the following: 16 a. Any change in status with respect to the information required to be 17 submitted pursuant to section forty-six hundred four of this article; 18 b. Financial statements audited by an independent certified public 19 accountant, which shall contain, for two or more periods if the communi- 20 ty has been in existence that long, the following: 21 (i) an accountant's opinion and, in accordance with generally accepted 22 accounting principles: 23 (A) a balance sheet, 24 (B) a statement of income and expenses, 25 (C) a statement of equity or fund balances, 26 (D) a statement of changes in financial position, 27 (ii) notes to the financial statements considered customary or neces- 28 sary to ensure full disclosure of the financial statements, financial 29 condition, and operation; 30 c. A detailed listing of the assets maintained for the reserves; 31 d. A copy of the most recent actuarial review of the community, 32 including such information as may be required by the [superintendent] 33 commissioner including an opinion of a qualified consulting actuary, as 34 to the current and projected soundness of the community, provided howev- 35 er that a new actuarial review must be submitted triennially; and 36 e. Such other reasonable financial and other information as the [coun-37cil] commissioner may require with respect to the operator or the commu- 38 nity, or its directors, controlling persons, trustees, members, branch- 39 es, subsidiaries or affiliates to determine the financial status of the 40 community and the management capabilities of the operator. 41 3. Sixty days before commencement of each calendar or fiscal year or 42 official opening date, whichever is applicable, each operator shall file 43 with the commissioner [and superintendent] a computation of the annual 44 long-term debt service and a projected annual revenue and expense summa- 45 ry for the next ten years. 46 § 18. Section 4658 of the public health law, as added by chapter 519 47 of the laws of 2004, is amended to read as follows: 48 § 4658. Annual statement. 1. Within four months of close of an opera- 49 tor's fiscal year, unless an extension of time to file has been granted, 50 the operator shall file an annual statement with the commissioner show- 51 ing the condition as of the last day of the preceding calendar or fiscal 52 year. If the commissioner does not receive the annual statement within 53 four months of the end of the operator's fiscal year or has not granted 54 an extension of time to file, the council may charge a late fee. 55 2. The annual statement shall be in such form as the [council] commis- 56 sioner prescribes and shall contain at least the following:S. 5172 15 1 a. Any change in status with respect to the information required to be 2 submitted pursuant to section forty-six hundred fifty-seven of this 3 article; 4 b. Financial statements audited by an independent certified public 5 accountant, which shall contain, for two or more periods if the communi- 6 ty has been in existence that long, the following: 7 (i) notes to the financial statements considered customary or neces- 8 sary to ensure full disclosure of the financial statements, financial 9 condition, and operation; and 10 (ii) an accountant's opinion and, in accordance with generally 11 accepted accounting principles: (A) a balance sheet, (B) a statement of 12 income and expenses, (C) a statement of equity or fund balances, and (D) 13 a statement of changes in financial position; 14 c. A detailed listing of the assets maintained for the reserves; and 15 d. Such other reasonable financial and other information as the [coun-16cil] commissioner may require with respect to the operator or the commu- 17 nity, or its directors, controlling persons, trustees, members, branch- 18 es, subsidiaries or affiliates to determine the financial status of the 19 community and the management capabilities of the operator. 20 3. Sixty days before commencement of each calendar or fiscal year or 21 official opening date, whichever is applicable, each operator shall file 22 with the commissioner a computation of the annual long-term debt service 23 and a projected annual revenue and expense summary for the next ten 24 years. 25 § 19. Paragraphs a and c of subdivision 15 of section 4608 of the 26 public health law, as amended by chapter 7 of the laws of 2015, are 27 amended to read as follows: 28 a. the resident or contract holder, as applicable shall, if eligible, 29 enroll in medicare parts a and b or the equivalent and shall continue to 30 maintain that coverage, together with medicare supplement coverage at 31 least equivalent in benefits to those established by the superintendent 32 as minimum benefits for medicare supplement policies; provided, however, 33 that such medicare supplement coverage shall cover any coinsurance 34 amounts due and payable for the twenty-first day through the hundredth 35 day of any medicare part a benefit period for post-hospital skilled 36 nursing facility care; 37 c. if the community cannot purchase medicare coverage and medicare 38 supplement coverage or the equivalent, the community shall have the 39 authority to require an adjustment in monthly fees, subject to the 40 approval of the [superintendent] commissioner, to fund the additional 41 risk to the facility; and 42 § 20. Subdivision 16 of section 4608 of the public health law, as 43 amended by chapter 7 of the laws of 2015, is amended to read as follows: 44 16. A statement that any amendment to the contract and any change in 45 fees or charges, other than those within the guidelines of an approved 46 rating system, must be approved by the [superintendent of financial47services] commissioner; 48 § 21. Section 4608 of the public health law is amended by adding a new 49 subdivision 21 to read as follows: 50 21. A statement that, except as otherwise required by law, rule or 51 regulation, a continuing care retirement contract or continuing care at 52 home contract shall take precedence over any conflicting requirements 53 for separate admissions agreements for covered levels of care including, 54 but not limited to, a nursing home admissions agreement, an adult care 55 facility admission agreement or an assisted living residency agreement.S. 5172 16 1 § 22. Section 4659 of the public health law, as added by chapter 519 2 of the laws of 2004, is amended by adding a new subdivision 17 to read 3 as follows: 4 17. A statement that a fee-for-service continuing care contract shall 5 take precedence over any conflicting requirements for separate admis- 6 sions agreements for covered levels of care, including, but not limited 7 to, a nursing home admissions agreement, an adult care facility admis- 8 sion agreement, or an assisted living residency agreement. 9 § 23. Subdivision 4 of section 4609 of the public health law, as added 10 by chapter 689 of the laws of 1989, is amended and a new subdivision 5 11 is added to read as follows: 12 4. Any refund made pursuant to this section must be paid no later than 13 thirty days after the formerly occupied unit has been resold, but in no 14 event later than [one year] two years after the formerly occupied unit 15 has been vacated. 16 5. Nothing in this section shall preclude a resident from making an 17 immediate irrevocable gift or a bequest to the community of all or part 18 of the entrance fee which would otherwise be refunded under this 19 section. 20 § 24. Subdivision 4 of section 4660 of the public health law, as added 21 by chapter 519 of the laws of 2004, is amended and a new subdivision 5 22 is added to read as follows: 23 4. Any refund made pursuant to this section shall be paid no later 24 than thirty days after the formerly occupied unit has been resold, but 25 in no event later than [one year] two years after the formerly occupied 26 unit has been vacated; provided, further, that a resident transfer to 27 another level of care in the community shall not be considered a with- 28 drawal of such resident for purposes of requiring a refund under this 29 section. 30 5. Nothing in this section shall preclude a resident from making an 31 immediate irrevocable gift or a bequest to the community of all or part 32 of the entrance fee which would otherwise be refunded under this 33 section. 34 § 25. Subparagraph (v) of paragraph b of subdivision 6 of section 4610 35 of the public health law, as amended by chapter 659 of the laws of 1997, 36 is amended to read as follows: 37 (v) the total amount of escrowed entrance fees or deposits that may be 38 approved for release under this paragraph shall not exceed [fifteen] 39 eighty-five percent of [the total costs of acquiring, constructing and40equipping the proposed community] entrance fees or deposits collected; 41 § 26. Paragraph e of subdivision 1-a of section 4663 of the public 42 health law, as added by chapter 545 of the laws of 2004, is amended to 43 read as follows: 44 e. the total amount of escrowed entrance fees or deposits that may be 45 approved for release under this subdivision shall not exceed [fifteen] 46 eighty-five percent of [the total costs of acquiring, constructing and47equipping the proposed community] entrance fees or deposits collected; 48 § 27. Subdivisions 1 and 2 of section 4614 of the public health law, 49 as amended by chapter 7 of the laws of 2015, are amended to read as 50 follows: 51 1. The commissioner, or designee[; and the superintendent, or desig-52nee;] may at any time, and shall at least once every three years, visit 53 each community and examine the business of any applicant for a certif- 54 icate of authority and any operator engaged in the execution of continu- 55 ing care retirement contracts or continuing care at home contracts or 56 engaged in the performance of obligations under such contracts. RoutineS. 5172 17 1 examinations may be conducted by having documents designated by and 2 submitted to such [commissioners or superintendent] commissioner, which 3 shall include financial documents and records conforming to commonly 4 accepted accounting principles and practices. The final written report 5 of each such examination conducted by such [commissioners or superinten-6dent] commissioner shall be filed with the commissioner and, when so 7 filed, shall constitute a public record. A copy of each report shall be 8 provided to members of the continuing care retirement community council. 9 Any operator being examined shall, upon request, give reasonable and 10 timely access to all of its records. The representative or examiner 11 designated by the [commissioners or superintendent, respectively,] 12 commissioner may, at any time, examine the records and affairs and 13 inspect the community's facilities, whether in connection with a formal 14 examination or not. 15 2. Any duly authorized officer, employee, or agent of the [health] 16 department[, or department of financial services] may, upon presentation 17 of proper identification, have access to, and inspect, any records main- 18 tained by the community relevant to the [respective] agency's regulatory 19 authority, with or without advance notice, to secure compliance with, or 20 to prevent a violation of, any provision of this article. 21 § 28. Section 4615 of the public health law, as added by chapter 689 22 of the laws of 1989, paragraph j of subdivision 1 as further amended by 23 section 104 of part A of chapter 62 of the laws of 2011, paragraph k of 24 subdivision 1 as amended by chapter 7 of the laws of 2015 and subdivi- 25 sion 3 as amended by chapter 659 of the laws of 1997, is amended to read 26 as follows: 27 § 4615. Revocation, suspension or annulment of certificate of authori- 28 ty. 1. The [council] commissioner may revoke, suspend, limit or annul 29 the certificate of authority of an operator upon proof that: 30 a. The operator failed to continue to meet the requirements for the 31 authority originally granted; 32 b. The operator lacked one or more of the qualifications for the 33 certificate of authority as specified by this article; 34 c. The operator made a material misstatement, misrepresentation, or 35 committed fraud in obtaining the certificate of authority, or in 36 attempting to obtain the same; 37 d. The operator lacked fitness or was untrustworthy; 38 e. The operator engaged in fraudulent or dishonest practices of 39 management in the conduct of business under the certificate of authori- 40 ty; 41 f. The operator converted or withheld funds; 42 g. The operator failed to comply with, or violated, any proper order, 43 rule or regulation of the council or violated any provision of this 44 article; 45 h. The unsound business practices of the operator renders its further 46 transactions in this state hazardous or injurious to the public; 47 i. The operator has refused to be examined or to produce its accounts, 48 records, and files for examination, or its officers, employees, or 49 controlling persons have refused to give information with respect to the 50 affairs of the community or to perform any other legal obligation as to 51 such examination; 52 j. The [superintendent of financial services] commissioner has made a 53 determination that the operator is insolvent within the meaning of 54 section one thousand three hundred nine of the insurance law; orS. 5172 18 1 k. The commissioner has found violations of applicable statutes, rules 2 or regulations which threaten to affect directly the health, safety, or 3 welfare of a resident. 4 1-a. The commissioner shall not revoke, suspend, limit or annul the 5 certificate of authority of an operator pursuant to subdivision one of 6 this section without first consulting with, and receiving a recommenda- 7 tion from, the public health and health planning council. 8 2. No certificate of authority shall be revoked, suspended, limited or 9 annulled without a hearing, except that a certificate of authority may 10 be temporarily suspended or limited prior to a hearing for a period not 11 in excess of sixty days upon written notice to the operator following a 12 finding by the commissioner that the public health or safety is in immi- 13 nent danger or there exists any condition or practice or a continuing 14 pattern of conditions or practices that pose an imminent danger to the 15 health or safety of any resident. Any delay in the hearing process occa- 16 sioned by the operator shall toll the running of said suspension or 17 limitation and shall not abridge the full time provided in this subdivi- 18 sion. 19 3. Any state agency which seeks to revoke, suspend, limit or annul the 20 certificate of authority or any other license or certificate required to 21 be obtained by an operator of a continuing care retirement community 22 pursuant to law, shall request the [council] commissioner to commence a 23 hearing pursuant to this section. 24 4. The [council] commissioner shall fix a time and place for the hear- 25 ing. The commissioner shall cause to be served in person or mailed by 26 registered or certified mail to the operator at least ten days before 27 the date fixed for the hearing a copy of the charges, together with the 28 notice of the time and place of the hearing. The operator shall file 29 with the commissioner not less than three days prior to the hearing a 30 written answer to the charges. The agency which initiated the proceeding 31 shall be responsible for providing evidence in support of the charges to 32 the commissioner in order to prepare a statement of charges and shall 33 provide evidence in support of the charges at the hearing. 34 5. All orders hereunder shall be subject to review as provided in 35 article seventy-eight of the civil practice law and rules. Application 36 for such review must be made within sixty days after service in person 37 or by registered or certified mail of a copy of the order upon the oper- 38 ator. 39 § 29. Section 4616 of the public health law, as added by chapter 689 40 of the laws of 1989, the opening paragraph as amended by chapter 659 of 41 the laws of 1997, is amended to read as follows: 42 § 4616. Appointment of a caretaker. Upon a determination by the [coun-43cil] commissioner that there exists operational deficiencies in a 44 continuing care retirement community that show: 45 1. a condition or conditions in substantial violation of the standards 46 for health, safety or patient care established under federal or state 47 law or regulations; or 48 2. [or] that there exists in the facility a pattern or practice of 49 habitual violation of the standards of health, safety or patient care 50 established under federal or state law or regulations, the [council] 51 commissioner shall take the actions prescribed by section forty-six 52 hundred fifteen of this article, and, where the [council] commissioner 53 deems it to be in the public interest, the [council may request that the54commissioner, and upon request of the council the] commissioner shall[,] 55 petition a court of competent jurisdiction to appoint a caretaker as 56 defined in section twenty-eight hundred one of this chapter. The peti-S. 5172 19 1 tion, the proceedings, and the procedures for appointment of a caretaker 2 shall be governed by the provisions of section forty-six hundred seven- 3 teen of this article, and the powers, duties and rights of a caretaker 4 appointed pursuant to such section shall be the same as those authorized 5 by subdivision four of such section. 6 § 30. Subdivisions 1, 2 and 8 of section 4617 of the public health 7 law, subdivision 1 as amended by chapter 659 of the laws of 1997, and 8 subdivisions 2 and 8 as added by chapter 689 of the laws of 1989, are 9 amended to read as follows: 10 1. The [council] commissioner may, [if it determines] upon a determi- 11 nation that serious operational deficiencies exist or serious financial 12 problems exist and such action is desirable, enter into an agreement 13 with the operator or owners of a continuing care retirement community 14 with respect to the appointment of a receiver to take charge of the 15 community under conditions as found acceptable by both parties. Receiv- 16 ership commenced in accordance with the provisions of this subdivision 17 shall terminate at such time as may be provided in the receivership 18 agreement, or at such time as either party notifies the other in writing 19 that it wishes to terminate such receivership. 20 2. [Upon request of the council, the] The commissioner shall, at the 21 time of revocation, suspension or temporary suspension of a certificate 22 of authority, apply to the supreme court where the community is situated 23 for an order directing the owner of the land and/or structure on or in 24 which the community is located, to show cause why a receiver should not 25 be appointed to take charge of the community. In those cases where the 26 certificate of authority has been revoked, suspended or temporarily 27 suspended, the supreme court shall appoint a receiver that, where 28 reasonably possible, is a legal entity that holds a valid certificate of 29 authority. Such application shall contain proof by affidavit that the 30 facility has had its certificate of authority revoked, suspended, or 31 temporarily suspended. Such order to show cause shall be returnable not 32 less than five days after service is completed and shall provide for 33 personal service of a copy thereof and the papers on which it is based, 34 on the owner or owners of the land and/or structures on or in which the 35 community is located. If any such owner and manager cannot with due 36 diligence be served personally within the county where the property is 37 located and within the time fixed in such order, then service may be 38 made on such person by posting a copy thereof in a conspicuous place 39 within the community in question, and by sending a copy thereof by 40 registered mail, return receipt requested, to such owner at the last 41 address registered by him with the department or in the absence of such 42 registration to the address set forth in the last recorded deed with 43 respect to the facility. Service shall be deemed complete on filing 44 proof of service thereof in the office of the county clerk, or the clerk 45 of the city of New York, as the case may be. 46 8. Any other provision of this article notwithstanding, the [council] 47 commissioner may, if it deems appropriate, grant to any community oper- 48 ating or scheduled to operate under a receivership authorized by this 49 section a certificate of authority, the duration of which shall be 50 limited to the duration of the receivership. 51 § 31. Section 4668 of the public health law, as added by chapter 519 52 of the laws of 2004, is amended to read as follows: 53 § 4668. Revocation, suspension or annulment of certificate of authori- 54 ty. 1. The [council] commissioner may revoke, suspend, limit or annul 55 the certificate of authority of an operator upon proof that:S. 5172 20 1 a. The operator failed to continue to meet the requirements for the 2 authority originally granted; 3 b. The operator lacked one or more of the qualifications for the 4 certificate of authority as specified by this article; 5 c. The operator made a material misstatement, misrepresentation, or 6 committed fraud in obtaining the certificate of authority, or in 7 attempting to obtain the same; 8 d. The operator lacked fitness or was untrustworthy; 9 e. The operator engaged in fraudulent or dishonest practices of 10 management in the conduct of business under the certificate of authori- 11 ty; 12 f. The operator converted or withheld funds; 13 g. The operator failed to comply with, or violated, any proper order, 14 rule or regulation of the council or violated any provision of this 15 article; 16 h. The unsound business practices of the operator renders its further 17 transactions in this state hazardous or injurious to the public; 18 i. The operator has refused to be examined or to produce its accounts, 19 records and files for examination, or its officers, employees or 20 controlling persons have refused to give information with respect to the 21 affairs of the community or to perform any other legal obligation as to 22 such examination; or 23 j. The commissioner has found violations of applicable statutes, rules 24 or regulations which threaten to affect directly the health, safety, or 25 welfare of a resident of a fee-for-service continuing care retirement 26 community. 27 1-a. The commissioner shall not revoke, suspend, limit or annul the 28 certificate of authority of an operator pursuant to subdivision one of 29 this section without first consulting with, and receiving a recommenda- 30 tion from, the public health and health planning council. 31 2. No certificate of authority shall be revoked, suspended, limited or 32 annulled without a hearing, except that a certificate of authority may 33 be temporarily suspended or limited prior to a hearing for a period not 34 in excess of sixty days upon written notice to the operator following a 35 finding by the commissioner that public health or safety is in imminent 36 danger or there exists any condition or practice or a continuing pattern 37 of conditions or practices that pose an imminent danger to the health or 38 safety of any resident. Any delay in the hearing process occasioned by 39 the operator shall toll the running of said suspension or limitation and 40 shall not abridge the full time provided in this subdivision. 41 3. Any state agency which seeks to revoke, suspend, limit or annul the 42 certificate of authority or any other license or certificate required to 43 be obtained by an operator of a community pursuant to law, shall request 44 the [council] commissioner to commence a hearing pursuant to this 45 section. 46 4. The [council] commissioner shall fix a time and place for the hear- 47 ing. The commissioner shall cause to be served in person or mailed by 48 registered or certified mail to the operator at least ten days before 49 the date fixed for the hearing a copy of the charges, together with the 50 notice of the time and place of the hearing. The operator shall file 51 with the commissioner not less than three days prior to the hearing a 52 written answer to the charges. The agency which initiated the proceeding 53 shall be responsible for providing evidence in support of the charges to 54 the commissioner in order to prepare a statement of charges and shall 55 provide evidence in support of the charges at the hearing.S. 5172 21 1 5. All orders pursuant to this section shall be subject to review as 2 provided in article seventy-eight of the civil practice law and rules. 3 Application for such review shall be made within sixty days after 4 service in person or by registered or certified mail of a copy of the 5 order upon the operator. 6 § 32. Section 4669 of the public health law, as added by chapter 519 7 of the laws of 2004, is amended to read as follows: 8 § 4669. Appointment of a caretaker. Upon a determination by the 9 [council] commissioner that there exists operational deficiencies in a 10 fee-for-service continuing care retirement community that show: 11 1. there exists in the facility a pattern or practice of habitual 12 violation of the standards of health, safety or patient care established 13 under federal or state law or regulations, the [council] commissioner 14 shall take the actions prescribed by section forty-six hundred sixty- 15 eight of this article, and, where the [council] commissioner deems it to 16 be in the public interest, the [council may request the commissioner,17and upon request of the council the] commissioner shall[,] petition a 18 court of competent jurisdiction to appoint a caretaker as defined in 19 section twenty-eight hundred one of this chapter. The petition, the 20 proceedings, and the procedures for appointment of a caretaker shall be 21 governed by the provisions of section forty-six hundred seventy of this 22 article, and the power, duties and rights of a caretaker appointed 23 pursuant to such section shall be the same as those authorized by subdi- 24 vision four of such section; or 25 2. a condition or conditions in substantial violation of the standards 26 for health, safety or patient care established under federal or state 27 law or regulations. 28 § 33. Subdivisions 1, 2 and 8 of section 4670 of the public health 29 law, as added by chapter 519 of the laws of 2004, are amended to read as 30 follows: 31 1. The [council] commissioner may, [if it determines] upon a determi- 32 nation that serious operational deficiencies exist or serious financial 33 problems exist and such action is desirable, enter into an agreement 34 with the operator or owners of a fee-for-service continuing care retire- 35 ment community with respect to the appointment of a receiver to take 36 charge of the community under conditions as found acceptable by both 37 parties. Receivership commenced in accordance with the provisions of 38 this subdivision shall terminate at such time as may be provided in the 39 receivership agreement, or at such time as either party notifies the 40 other in writing that it wishes to terminate such receivership. 41 2. [Upon request of the council, the] The commissioner shall, at the 42 time of revocation, suspension or temporary suspension of a certificate 43 of authority, apply to the supreme court where the community is situated 44 for an order directing the owner of the land and/or structure on or in 45 which the community is located, to show cause why a receiver should not 46 be appointed to take charge of the community. In those cases where the 47 certificate of authority has been revoked, suspended or temporarily 48 suspended, the supreme court shall appoint a receiver that, where 49 reasonably possible, is a legal entity that holds a valid certificate of 50 authority. Such application shall contain proof by affidavit that the 51 facility has had its certificate of authority revoked, suspended or 52 temporarily suspended. Such order to show cause shall be returnable not 53 less than five days after service is completed and shall provide for 54 personal service of a copy thereof and the papers on which it is based, 55 on the owner or owners of the land and/or structures on or in which the 56 community is located. If any such owner and manager cannot with dueS. 5172 22 1 diligence be served personally within the county where the property is 2 located and within the time fixed in such order, then service may be 3 made on such person by posting a copy thereof in a conspicuous place 4 within the community in question, and by sending a copy thereof by 5 registered mail, return receipt requested, to such owner at the last 6 address registered by him or her with the department or in the absence 7 of such registration to the address set forth in the last recorded deed 8 with respect to the facility. Service shall be deemed complete on filing 9 proof of service thereof in the office of the county clerk, or the clerk 10 of the city of New York, as the case may be. 11 8. Any other provision of this article notwithstanding, the [council] 12 commissioner may, if it deems appropriate, grant to any community oper- 13 ating or scheduled to operate under a receivership authorized by this 14 section a certificate of authority, the duration of which shall be 15 limited to the duration of the receivership. 16 § 34. Paragraph g of subdivision 4 of section 4621 of the public 17 health law, as added by chapter 406 of the laws of 1991, is amended to 18 read as follows: 19 g. If the funds in an escrow account under this section, and any 20 interest thereon, are not released to the applicant within such time as 21 provided by rules and regulations adopted by the [council] commissioner, 22 then such funds shall be returned by the escrow agent to the person who 23 had made the payments or the person's legal representative. 24 § 35. Subdivision 1 of section 4623 of the public health law, as 25 amended by chapter 659 of the laws of 1997, is amended to read as 26 follows: 27 1. The [council] commissioner may approve an application for a certif- 28 icate of authority and [the commissioner] may issue a certificate of 29 authority for the establishment and operation of a continuing care 30 retirement community under an arrangement which otherwise complies with 31 the requirements of this article except that the costs of nursing facil- 32 ity or home health care services are paid for in whole or in part by (a) 33 long term care insurance obtained and paid for by the resident or by 34 medical assistance payments in accordance with the partnership for long 35 term care program pursuant to section three hundred sixty-seven-f of the 36 social services law and section three thousand two hundred twenty-nine 37 of the insurance law or (b) other group or individual long term care 38 insurance approved by the superintendent and the council in connection 39 with the application. The council, in consultation with the superinten- 40 dent, shall provide for adequate disclosure to residents of their 41 options, rights and obligations under such an arrangement, and shall 42 establish standards for the remittance and collection of premiums and 43 monthly care fees. 44 § 36. The opening paragraph of subdivision 14 and subdivision 15 of 45 section 4657 of the public health law, as added by chapter 519 of the 46 laws of 2004, are amended to read as follows: 47 In accordance with regulations promulgated by the [council] commis- 48 sioner, the operator shall prepare a standard information sheet for each 49 approved fee-for-service continuing care retirement community, which 50 must be approved by the department, distributed with the community's 51 marketing materials and attached to the initial disclosure statement 52 prepared in accordance with this section. The standard information sheet 53 shall be prepared in plain language and in twelve point type and shall 54 include, but shall not be limited to the following information: 55 15. Any other information as may be required by regulations promulgat- 56 ed by the [council] commissioner.S. 5172 23 1 § 37. The opening paragraph and paragraph d of subdivision 2 of 2 section 4658 of the public health law, as added by chapter 519 of the 3 laws of 2004, are amended to read as follows: 4 The annual statement shall be in such form as the [council] commis- 5 sioner prescribes and shall contain at least the following: 6 d. Such other reasonable financial and other information as the [coun-7cil] commissioner may require with respect to the operator or the commu- 8 nity, or its directors, controlling persons, trustees, members, branch- 9 es, subsidiaries or affiliates to determine the financial status of the 10 community and the management capabilities of the operator. 11 § 38. Subdivision 2 of section 4651 of the public health law, as added 12 by chapter 519 of the laws of 2004, is amended to read as follows: 13 2. "Certificates" or "certificate of authority" shall mean an authori- 14 zation in writing, approved [by the council] and issued by the commis- 15 sioner, for an operator to operate a fee-for-service continuing care 16 retirement community and to enter into fee-for-service continuing care 17 contracts pertaining to such community. 18 § 39. Section 4654 of the public health law, as amended by chapter 545 19 of the laws of 2004, is amended to read as follows: 20 § 4654. Authorization of fee-for-service continuing care retirement 21 communities. The commissioner[, upon approval of the continuing care22retirement community council,] shall approve up to eight fee-for-service 23 continuing care retirement communities to encourage affordable care 24 options for middle income seniors, up to two of which may be operated by 25 a for-profit entity. 26 § 40. The opening paragraph of section 4659 of the public health law, 27 as added by chapter 519 of the laws of 2004, is amended to read as 28 follows: 29 A fee-for-service continuing care contract shall contain all of the 30 following information in no less than twelve point type and in plain 31 language, in addition to any other terms or matter as may be required by 32 regulations [adopted by the council and] issued by the commissioner: 33 § 41. The opening paragraph of subdivision 5 of section 4655 of the 34 public health law, as amended by chapter 545 of the laws of 2004, is 35 amended to read as follows: 36 If the [approvals] applicant has satisfied the criteria required by 37 subdivision four-a of this section have been obtained, the [council] 38 commissioner shall[, by majority vote,] either approve or reject the 39 application [within sixty days of the date on which the last such40approval has been obtained]. In order to approve the application, the 41 [council] commissioner shall have determined that: 42 § 42. Subdivisions 6 and 8 of section 4655 of the public health law, 43 as added by chapter 519 of the laws of 2004, are amended to read as 44 follows: 45 6. Any change in the legal entity operating the fee-for-service 46 continuing care retirement community, or in a controlling person of the 47 community shall require approval in the same manner as an original 48 application; provided, however, that the [council] commissioner may 49 waive any requirement to provide information that is not relevant to 50 such change and provided, further, that the continued public need for 51 the community shall be presumed. 52 8. [If the council approves the application, the] The commissioner 53 shall issue a certificate of authority to the applicant upon approval of 54 the application. 55 § 43. Section 4611 of the public health law, as added by chapter 689 56 of the laws of 1989, the opening paragraph of subdivision 1 as furtherS. 5172 24 1 amended by section 104 of part A of chapter 62 of the laws of 2011, is 2 amended to read as follows: 3 § 4611. Reserves and supporting assets. 1. An operator shall maintain 4 reserve liabilities and supporting assets in an amount and for the 5 purposes set forth in a regulation issued by the [superintendent of6financial services] commissioner. Liquid assets must be maintained for 7 the following reserve liabilities: 8 a. Principal and interest payments and payments for taxes and insur- 9 ance for up to twelve months; 10 b. Total estimated operating costs for up to six months as set by the 11 [superintendent] commissioner; 12 c. Repairs and replacements for up to twelve months; and 13 d. In addition, the amount of liquid assets must meet any cash flow 14 requirements and conditions as set forth in a regulation. 15 2. The assets in support of reserve liabilities of subdivision one of 16 this section shall meet quantitative and qualitative standards set forth 17 in regulations issued by the [superintendent] commissioner. 18 § 44. The public health law is amended by adding a new section 4625 to 19 read as follows: 20 § 4625. Continuing care retirement community workgroup. 1. Within six 21 months of the effective date of this section, the commissioner shall 22 convene a continuing care retirement community workgroup (hereinafter 23 referred to in this section as the "workgroup"). The workgroup shall 24 consist of, at a minimum, the commissioner or his or her designee; 25 representatives of health care provider organizations; representatives 26 of continuing care retirement communities, and representatives who have 27 expertise in the continuing care retirement community industry. 28 2. Workgroup members shall receive no compensation for their services 29 as members of the workgroup, but shall be reimbursed for actual and 30 necessary expenses incurred in the performance of their duties. 31 3. The workgroup shall: 32 a. review existing continuing care retirement community and fee-for- 33 service continuing care retirement community models in the state and 34 nationally; 35 b. develop recommendations on creating cost-effective options for 36 financing the development of additional continuing care retirement 37 communities and fee-for-service continuing care retirement communities; 38 and 39 c. submit a report by January first, two thousand nineteen to the 40 commissioner, the council, the temporary president of the senate, the 41 speaker of the assembly, the chair of the senate health committee, and 42 the chair of the assembly health committee containing recommendations 43 for cost-effective options to encourage the growth of continuing care 44 retirement communities in the state of New York. 45 4. All state departments, commissions, agencies and public authorities 46 shall provide the workgroup with any reasonably requested assistance or 47 advice in a timely manner. 48 § 45. This act shall take effect on the one hundred eightieth day 49 after it shall have become a law, provided, however, that section 4625 50 of the public health law, as added by section forty-four of this act, 51 shall expire and be deemed repealed December 31, 2020; provided, 52 further, that effective immediately, the addition, amendment and/or 53 repeal of any rule or regulation necessary for the implementation of 54 this act on its effective date are authorized and directed to be made 55 and completed on or before such effective date.
