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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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| Jan 03, 2018 |
referred to health |
| Mar 10, 2017 |
referred to health |
Senate Bill S5172
2017-2018 Legislative Session
Enhances the authority of the department of health to supervise and regulate continuing care retirement communities
download bill text pdfSponsored By
(R, C, IP) Senate District
Archive: Last Bill Status - In Senate Committee Health Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
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- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
2017-S5172 (ACTIVE) - Details
- See Assembly Version of this Bill:
- A6450
- Current Committee:
- Senate Health
- Law Section:
- Public Health Law
- Laws Affected:
- Amd Pub Health L, generally
- Versions Introduced in Other Legislative Sessions:
-
2015-2016:
S7778, A10657
2019-2020: S1803
2017-S5172 (ACTIVE) - Sponsor Memo
BILL NUMBER: S5172
TITLE OF BILL : 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
PURPOSE :
Article 46 of the Public Health Law was enacted in 1989 to establish
Continuing Care Retirement Communities (CCRCs) in New York. Later
amendments included Article 46A, which established fee-for service
(FFS) CCRCs, and a new Life Care at Home program added in 2015. CCRCs
provide a full range of services including independent housing,
assisted living and nursing home care to residents in a campus setting
as their needs change. Since the early 1990s the number of CCRCs and
similar communities has exploded across the nation, becoming one of
the primary means by which seniors of varying income levels are able
to fund and provide for their ongoing health care, services, and
housing needs. However, since Article 46 was enacted here in New York,
only 12 CCRCs have become operational.
In the over 25 years since its enactment, Article 46 has become
outdated and now represents a major impediment to the development and
expansion of CCRCs in New York. The regulatory framework and policies
stemming from Articles 46 and 46-A create an environment in which it
is: (1) prohibitively expensive and administratively burdensome to consider starting a new CCRC or expanding a current community; and (2) extremely difficult for current communities to operate efficiently and make their services more affordable to residents. Comprehensive statutory and regulatory reforms are needed in order to modernize the Article 46 and 46-A provisions and eliminate barriers to the development, expansion, and efficient operation of CCRCs in New York while preserving vitally important resident protections. SUMMARY OF PROVISIONS : Sections one and two of the bill amend sections 4601 (CCRC) and 4651 (PPS CCRC) of the Public Health Law to ensure that any references to "continuing care retirement communities" or fee-for-service continuing care retirement communities" apply to the term "life plan community", a more recent name ascribed to CCRCs. Section three of the bill amends section 4602 of the Public Health Law to assign an advisory role to the Continuing Care Retirement Community Council and modify its composition. Section four of the bill amends section 4603 of the Public Health Law to delegate the other duties of the CCRC Council to the Commissioner of Health, including the granting of certificates of authority through an expedited administrative review process, with final approval for nursing home beds remaining with the Public Health and Health Planning Council (PHHPC). It also establishes clear guidelines and timeframes for the processing of applications and making determinations. In cases when the State has exceeded established timeframes for review, certain aspects of applications would be deemed approved. Sections five and six of the bill amend sections 4604 (CCRC) and 4655 (PIS CCRC) of the Public Health Law to restrict the use of the term "life plan community" to either a CCRC or a fee-for-service CCRC established under Article 46 or Article 46-A, respectively. Sections seven and eight of the bill conform the adult care facility (ACF) resident notice requirements in sections 4604 (CCRC) and 4655 (FES CCRC) of the Public Health Law to the revised CCRC contract provisions contained in paragraph 21 of section 4608 and paragraph 17 of section 4659, respectively. Section nine of the bill amends section 4604 of the Publi.c Health Law to clarify that the Commissioner of Health is responsible for conducting reviews of various aspects of an application for a certificate of authority to operate a CCRC, in concert with the PHHPC (for nursing home beds); the attorney general (for selected forms of independent living unit ownership); and any designee(s) of the Commissioner. Sections ten, eleven and twelve of the bill make conforming amendments to sections 4604 and 4604-a of the Public Health Law related to the transfer of CCRC Council authority to the Commissioner of Health. Sections thirteen and fourteen of the bill amend sections 4605 (CCRC) and 4656 (FFS CCRC) of the Public Health Law to: (1) authorize CCRCs in existence prior to January 1, 2016 to provide residential health care facility (RHCF) services to persons who are not residents of the community indefinitely at the percentage deemed permissible by the Commissioner of Health; (2) allow the Commissioner to authorize new CCRCs to provide RHCF services to persons who are not residents of the community for a seven-year period, provided, however, that the operator may seek an extension of this authorization at the end of the seven-year period; (3) eliminate any restrictions on providing ACF services to persons who are not residents of the community; and (4) provide that a CCRC serving an individual receiving ACF services who is not a resident of the community will not be subject to any restrictions on providing that individual with RHCF services as a non-resident of the community. Sections fifteen and sixteen of the bill make conforming amendments to sections 4605-a and 4605-b of the Public Health Law related to the transfer of approval authority for continuing care at home contracts to the Commissioner of Health. Sections seventeen and eighteen of the bill make conforming amendments to sections 4607 (CCRC) and 4658 (FFS CCRC) of the Public Health Law related to reports that would need to be made to the Commissioner of Health. Section nineteen of the bill amends section 4608 of the Public Health Law to require Medicare supplement coverage to include any coinsurance amounts due and payable for the 21st day through the 100th day of any Medicare Part A benefit period for post-hospital skilled nursing facility care, and makes a conforming amendment. Section twenty of the bill amends section 4608 of the Public Health Law to substitute the approval of the Commissioner of Health for the Superintendent of Financial Services related to changes in contacts, fees and charges. Sections twenty-one and twenty-two of the bill amend sections 4608 (CCRC) and 4659 (FFS CCRC) of the Public Health Law to clarify that a CCRC contract or a fee-for-service continuing care contract takes precedence over any conflicting requirements for separate admissions agreements for levels of care covered in the CCRC including a nursing home admission agreement, an ACF admission agreement or an assisted living residency agreement. Sections twenty-three and twenty-four of the bill amend sections 4609 (CCRC) and 4660 (FFS CCRC) of the Public Health Law to extend the timeframe for a refund when a formerly occupied unit is vacated but not yet resold from one year to two years, and to clarify that residents are permitted to make irrevocable gifts or bequests of entrance fee amounts otherwise subject to refund. Section twenty-four also clarifies that resident internal transfers in fee-for-service CCRCs do not trigger refund requirements. Sections twenty-five and twenty-six of the bill amend sections 4610 (CCRC) and 4663 (fee-forservice CCRC) of the Public Health Law to allow up to 85 percent of escrowed entrance fees to be released to the operator to finance the cost of acquiring, constructing, and equipping the facility, provided other conditions of these sections have been met. Section twenty-seven of the bill amends section 4614 of the Public Health Law to eliminate the responsibility of the Superintendent of Financial Services to participate in on-site examinations of CCRCs conducted by the Commissioner of Health at least once every three years. Sections twenty-eight through thirty-three of the bill amend sections 4615, 4616 and 4617 (CCRC) and sections 4668, 4669 and 4670 (FFS CCRC) of the Public Health Law to authorize the Commissioner of Health, with the consent of the PHHPC, to take actions related to revocation, suspension or annulment of a certificate of authority; appointment of a caretaker; and/or receivership of a CCRC. Sections thirty-five through forty-two of the bill make conforming amendments to sections 4621 and 4623 (CCRC) and sections 4651, 4654, 4655, 4657, 4658 and 4659 (fee-for-service CCRC) of the Public Health Law to substitute the Commissioner of Health for the CCRC Council related to promulgation of regulations, approvals of certificates of authority, and content of various disclosures. Section forty-three of the bill amends section 4611 of the Public Health Law to confer authority on the Commissioner of Health to establish reserve and asset levels for CCRCs. Section forty-four of the bill adds a new section 4625 to the Public Health Law to require the Commissioner of Health to convene a workgroup of CCRC industry experts to investigate and develop recommendations on creating additional cost-effective options for financing the development of additional CCRCs and fee-for-service CCRCs. The workgroup would report its findings to the Commissioner, Legislature and CCRC Council by January 1, 2018. JUSTIFICATION : Articles 46 and 46-A of the Public Health Law, and the regulations and policies that emanate from these laws, make the establishment and operation of CCRCs unnecessarily complex and expensive in New York as compared to other states. Two State agencies (the Department of Health (DOH) and the Department of Financial Services (DFS)) review applications for entrance-fee CCRC models, while three State agencies (DOH, DFS and the Office of the Attorney General) review applications for equity model CCRCs. The resulting review process is protracted, exceedingly complex, duplicative and expensive. Ongoing oversight of CCRC community operations, marketing practices, contracting, fees and investments is burdensome, time-consuming and adds significantly to the cost of operating these communities. This, in turn, increases fees to residents. Those provisions of Article 46 and Article 46-A that mandate multiple agency involvement should be revised to consolidate oversight in DOH and make it clear that other agencies are involved in a limited consultative role. Although this may have been the original intent of the statute, actual practice has evolved over the years such that there are competing interests among agencies in terms of authority to regulate CCRCs. Because they offer multiple levels of care, CCRCs are subjected to repeat and duplicative State survey inspections. These multiple surveys are costly to both the State and the community; they are disruptive to operations and residents; and findings are often contradictory between survey teams. There is also confusion about the CCRC contract, which governs all services provided in the community. CCRCs are also subject to overly proscriptive requirements governing refunds, accessing funds to finance construction/purchase, and how reserve funds can be invested. While robust protections are needed to ensure the financial well-being of the communities and that resident deposits and fees are secure, the current requirements preclude communities from covering their cost of capital with earnings from their investments. As a result, resident fees increase and the model becomes less affordable to more New Yorkers. Both nationally and here in New York, CCRCs have proven themselves to be financially stable and sound investments for residents and surrounding communities. Contrary to costing the State money, CCRCs are a proven economic driver for local communities. They are a sound investment that pays dividends in managing the care and housing needs of seniors; provide an alternative to estate planning to qualify for Medicaid; and enable seniors to remain near family members and friends. The CCRC model is not a new Medicaid program that will cost the State money. Quite the opposite, seniors who invest in their care and housing needs through a CCRC do not divest their assets to qualify for Medicaid-funded services. LEGISLATIVE HISTORY : 2016: S.7778 FISCAL IMPLICATIONS : Positive to the State. The economic activity, associated with further CCRC development and operation would be expected to generate additional tax revenues to the State. Reduced reliance on Medicaid associated with CCRC residency would save State and federal dollars EFFECTIVE DATE : 180 days after enactment, provided that the commissioner may make regulations beforehand that would become effective at the same time as the law.
2017-S5172 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5172
2017-2018 Regular Sessions
I N S E N A T E
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:
Section 1. Paragraphs e and f of subdivision 2-b of section 4601 of
the public health law, as amended by chapter 7 of the laws of 2015, are
amended and a new paragraph g is added to read as follows:
e. communities established under this article and offering fee-for-
service continuing care contracts must offer, along with such fee-for-
service continuing care contracts, life care and/or continuing care
contracts as defined in subdivision eight-a of this section; [and]
f. communities established under this article offering continuing care
at home contracts must also offer continuing care retirement contracts
and must maintain a continuing care retirement community that operates
in support of the continuing care at home contracts[.]; AND
G. FOR PURPOSES OF THIS ARTICLE, ANY REFERENCE TO "CONTINUING CARE
RETIREMENT COMMUNITY" OR "COMMUNITY" SHALL ALSO APPLY TO THE TERM "LIFE
PLAN COMMUNITY".
§ 2. Paragraph a of subdivision 8 of section 4651 of the public health
law, as amended by chapter 545 of the laws of 2004, is amended to read
as follows:
a. "Fee-for-service continuing care retirement community" OR "COMMUNI-
TY" shall mean a facility or facilities established pursuant to this
article to provide a comprehensive, cohesive living arrangement for the
elderly, oriented to the enhancement of the quality of life, pursuant to
the terms of the fee-for-service continuing care contract on a fee-for-
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.
LBD10281-01-7 S. 5172 2 on-site geriatric services, including, but not limited to, nursing facility services, services provided by an adult care facility, home health services, a meal plan, social services and independent living units. FOR PURPOSES OF THIS ARTICLE, ANY REFERENCE TO "FEE-FOR-SERVICE CONTINUING CARE RETIREMENT COMMUNITY" OR "COMMUNITY" SHALL ALSO APPLY TO THE TERM "LIFE PLAN COMMUNITY". § 3. Section 4602 of the public health law, as added by chapter 689 of the laws of 1989, the section heading and subdivisions 1 and 2 as amended by chapter 659 of the laws of 1997, the opening paragraph of subdivision 1 as amended by section 81 of part A of chapter 62 of the laws of 2011, the opening paragraph of subdivision 2 as amended by chap- ter 549 of the laws of 2014, subdivision 3 as amended by chapter 155 of the laws of 2012, is amended to read as follows: § 4602. Continuing care retirement community council; powers and duties. 1. The continuing care retirement community council is hereby established, to consist of the following, or their designees: the attor- ney general; the commissioner; the director of the office for the aging; and eight public members appointed by the governor with the advice and consent of the senate. Such public members shall be representative of the public, and have a demonstrated expertise or interest in continuing care retirement communities; provided that no [more] LESS than [one] THREE such [member] MEMBERS shall be a sponsor, owner, operator, manag- er, member of a board of directors, or shareholder of a continuing care retirement community. At least two public members shall be residents of a continuing care retirement community. At least one of the public members shall be a representative of an organization with demonstrated experience in representing the interests of senior citizens. The public members of the council shall have fixed terms of four years. The council shall be chaired by the commissioner or his or her designee. Members of such council shall serve without compensation for their services as members of the council, except that each of them may be allowed the necessary and actual expenses which [he] THEY shall incur in the performance of [his] THEIR duties under this article. 2. The council shall meet as often as may be deemed necessary to fulfill its responsibilities. The council shall have the following powers and duties: a. to [approve or reject applications to obtain a certificate of authority for the establishment and operation of a continuing care retirement community. In reviewing applications, the council shall consider the extent to which the applications reflect various sponsor- ships, organizational structures, geographic dispersion, and the public benefit. In determining the public benefit of a community requiring construction of a total nursing facility component greater than or equal to ninety beds, the council shall obtain and consider the recommendation of the state hospital review and planning council with regard to the effect of the construction of the community's nursing facility beds upon existing facilities in the same geographic area] ASSIST THE COMMISSIONER ON POLICY MATTERS RELATED TO THE ESTABLISHMENT AND OPERATION OF CONTINU- ING CARE RETIREMENT COMMUNITIES; b. to [require the reporting of such facts and information as the council may deem necessary to enforce the provisions of this article;] ASSIST THE COMMISSIONER IN THE DEVELOPMENT OF THE STATE'S OVERALL POLICY REGARDING CONTINUING CARE RETIREMENT COMMUNITIES AND CAUSE STUDIES AND RESEARCH TO BE CONDUCTED AS IT MAY DEEM ADVISABLE AND NECESSARY; AND c. [to coordinate the oversight of operating communities and to assign review and regulatory responsibility for particular aspects of such S. 5172 3 communities to the appropriate agencies, consistent with their legal authority, to assure consistent state supervision without duplication of inspection or regulatory review; d.] to make such recommendations to the governor and the legislature as may be necessary to encourage or further regulate the development of continuing care retirement communities[; e. to establish and charge equitable and reasonable annual charges for operators, not to exceed fifty dollars per approved living unit, to subsidize, in part, expenditures incurred in reviewing applications for certificates of authority and in inspecting, regulating, supervising and auditing continuing care retirement communities; f. to review reports from the participating agencies regarding the operations and financial management of approved communities, including any reports regarding the financial condition of any community that may be in need of close supervision and any reports of deficiencies in the provision of health or social services to residents of any community; g. to adopt rules and regulations and amendments thereto to effectuate the provisions of this article; h. to revoke, suspend, limit, or annul a certificate of authority under conditions set forth in section forty-six hundred fifteen of this article, including when such action is taken at the specific request of any participating council agency. When action has been taken by the commissioner pursuant to subdivision seven of section forty-six hundred three of this article, the council shall meet as soon as reasonably possible to approve or disapprove the action of the commissioner and shall take such further action as may be appropriate; i. to develop guidelines for applications for certificates of authori- ty; j. to make a final determination regarding an application for authori- zation to enter into priority reservation agreements where the commis- sioner has proposed to reject such application; k. to require the reporting of such facts and information as the coun- cil may deem necessary to determine whether characteristics of residen- tial health care demonstration facilities such as comprehensive systems of residential and support services for the elderly may be successfully incorporated into existing or approved continuing care retirement commu- nities; l. to review and approve or reject applications by continuing care retirement community operators to use entrance fees to assist the opera- tor in financing the construction or purchase of a proposed continuing care retirement community in accordance with paragraph b of subdivision six of section forty-six hundred ten of this article; and m. to review and approve or reject any proposed financing by indus- trial development agencies of continuing care retirement communities pursuant to article eighteen-A of the general municipal law as author- ized by section forty-six hundred four-a of this article. 3. The council shall establish guidelines under which the commissioner is authorized to approve or reject any proposed refinancing, if the council has already approved an application pursuant to paragraph a of subdivision two of this section]. § 4. Section 4603 of the public health law, as amended by chapter 659 of the laws of 1997, subdivisions 10 and 11 as amended and subdivision 12 as added by chapter 401 of the laws of 2003, is amended to read as follows: § 4603. Commissioner; power and duties. The commissioner[, in consul- tation with the council,] shall have the following powers and duties: S. 5172 4 1. A. to receive applications from potential operators of continuing care retirement communities and to distribute such applications for review to the participating agencies; [2.] B. to collect and compile recommendations from the participating agencies and to present consolidated materials[, including recommenda- tions, to the council for its review and action]; [3.] C. to develop uniform forms for applications for certificates of authority, to review the status of such applications, and to coordinate the review of such applications in order to minimize duplication or delay; [4.] D. to provide information to entities wishing to establish continuing care retirement communities and to persons interested in becoming residents of such communities and to assist operators and resi- dents of such communities, to the extent appropriate, with concerns relating to the operation of such facilities; [5.] E. to [issue certificates of authority to those applicants approved by the council] APPROVE OR REJECT APPLICATIONS TO OBTAIN A CERTIFICATE OF AUTHORITY FOR THE ESTABLISHMENT AND OPERATION OF A CONTINUING CARE RETIREMENT COMMUNITY. IN REVIEWING APPLICATIONS, THE COMMISSIONER SHALL CONSIDER THE EXTENT TO WHICH THE APPLICATIONS REFLECT VARIOUS SPONSORSHIPS, ORGANIZATIONAL STRUCTURES, GEOGRAPHIC DISPERSION AND THE PUBLIC BENEFIT. IN DETERMINING THE PUBLIC BENEFIT OF A COMMUNITY REQUIRING CONSTRUCTION OF A TOTAL NURSING FACILITY COMPONENT GREATER THAN OR EQUAL TO NINETY BEDS, THE COMMISSIONER SHALL OBTAIN AND CONSIDER THE RECOMMENDATION OF THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL WITH REGARD TO THE EFFECT OF THE CONSTRUCTION OF THE COMMUNITY'S NURSING FACILITY BEDS UPON EXISTING FACILITIES IN THE SAME GEOGRAPHIC AREA; [6.] F. to coordinate the [interagency regulatory review of the appli- cations, development and operations of communities in order to minimize duplication or delay] OVERSIGHT OF OPERATING COMMUNITIES AND TO CONSOL- IDATE REVIEW AND REGULATORY RESPONSIBILITY, INCLUDING INSPECTIONS OF CONTINUING CARE RETIREMENT COMMUNITY FACILITIES, TO ASSURE CONSISTENT STATE SUPERVISION WITHOUT DUPLICATION OF INSPECTION OR REGULATORY REVIEW; [7.] G. if the immediate health, safety, or financial needs of a community's residents are in jeopardy, to suspend or limit a certificate of authority pursuant to subdivision two of section forty-six hundred fifteen of this article. If the commissioner suspends a certificate of authority, he OR SHE shall [immediately] notify the council; [8.] H. to [make recommendations concerning and to promulgate rules and regulations and amendments thereto that have been adopted by the council to effectuate the provisions of this article] ADOPT RULES AND REGULATIONS AND AMENDMENTS THERETO TO EFFECTUATE THE PROVISIONS OF THIS ARTICLE; [9.] I. to carry out any other responsibilities entrusted to the commissioner pursuant to this chapter that may be necessary with regard to the health care activities of continuing care retirement communities; [10.] J. to make available to all prospective operators all pertinent regulations regarding health and insurance necessary to comply with this article; [11.] K. to approve or reject applications for authorization, by prospective continuing care retirement community applicants, entities that have filed an application for a certificate of authority and opera- tors, to enter into cancelable priority reservation agreements and to collect refundable priority reservation fees from prospective resi- dents[; provided that in any case where the commissioner proposes to S. 5172 5 reject such application, the council shall meet within a reasonable period of time not to exceed ninety days to make a final determination regarding such application]; [and 12.] L. to approve or reject any proposed refinancing consistent with the guidelines established pursuant to subdivision three of section forty-six hundred two of this article[.]; M. TO REVOKE, SUSPEND, LIMIT OR ANNUL A CERTIFICATE OF AUTHORITY UNDER CONDITIONS SET FORTH IN SECTION FORTY-SIX HUNDRED FIFTEEN OF THIS ARTI- CLE, INCLUDING WHEN SUCH ACTION IS TAKEN AT THE SPECIFIC REQUEST OF ANY PARTICIPATING COUNCIL AGENCY; N. TO REQUIRE THE REPORTING OF SUCH FACTS AND INFORMATION TO DETERMINE WHETHER CHARACTERISTICS OF RESIDENTIAL HEALTH CARE DEMONSTRATION FACILI- TIES SUCH AS COMPREHENSIVE SYSTEMS OF RESIDENTIAL AND SUPPORT SERVICES FOR THE ELDERLY MAY BE SUCCESSFULLY INCORPORATED INTO EXISTING OR APPROVED CONTINUING CARE RETIREMENT COMMUNITIES; O. TO REVIEW AND APPROVE OR REJECT APPLICATIONS BY CONTINUING CARE RETIREMENT COMMUNITY OPERATORS TO USE ENTRANCE FEES TO ASSIST THE OPERA- TOR IN FINANCING THE CONSTRUCTION OR PURCHASE OF A PROPOSED CONTINUING CARE RETIREMENT COMMUNITY IN ACCORDANCE WITH PARAGRAPH B OF SUBDIVISION SIX OF SECTION FORTY-SIX HUNDRED TEN OF THIS ARTICLE; AND P. TO REVIEW AND APPROVE OR REJECT ANY PROPOSED FINANCING BY INDUS- TRIAL DEVELOPMENT AGENCIES OF CONTINUING CARE RETIREMENT COMMUNITIES PURSUANT TO ARTICLE EIGHTEEN-A OF THE GENERAL MUNICIPAL LAW AS AUTHOR- IZED BY SECTION FORTY-SIX HUNDRED FOUR-A OF THIS ARTICLE. 2. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, THIS SUBDIVI- SION SHALL APPLY TO ANY APPLICATION TO OBTAIN A CERTIFICATE OF AUTHORITY FOR THE ESTABLISHMENT AND OPERATION OF A CONTINUING CARE RETIREMENT COMMUNITY OR FEE-FOR-SERVICE CONTINUING CARE RETIREMENT COMMUNITY AND ANY APPLICATION FOR THE CERTIFICATION OR LICENSURE OF ANY COMPONENT OF A CONTINUING CARE RETIREMENT COMMUNITY OR FEE-FOR-SERVICE CONTINUING CARE RETIREMENT COMMUNITY. A. FOR AN APPLICATION TO OBTAIN A CERTIFICATE OF AUTHORITY FOR THE ESTABLISHMENT AND OPERATION OF A CONTINUING CARE RETIREMENT COMMUNITY SUBMITTED TO THE COMMISSIONER PURSUANT TO THIS ARTICLE AND ARTICLE FORTY-SIX-A OF THIS CHAPTER, WITHIN ONE HUNDRED EIGHTY CALENDAR DAYS OF THE DEPARTMENT DEEMING THE APPLICATION COMPLETE, THE COMMISSIONER SHALL MAKE A DECISION TO APPROVE OR DISAPPROVE THE APPLICATION. IF THE COMMIS- SIONER DETERMINES TO DISAPPROVE THE APPLICATION, THE BASIS OF SUCH DISAPPROVAL SHALL BE PROVIDED IN WRITING; HOWEVER, DISAPPROVAL SHALL NOT BE BASED ON THE INCOMPLETENESS OF THE APPLICATION. IF THE COMMISSIONER FAILS TO TAKE ACTION TO APPROVE OR DISAPPROVE THE APPLICATION WITHIN ONE HUNDRED EIGHTY DAYS OF THE APPLICATION BEING DEEMED COMPLETE, THE APPLI- CATION SHALL BE DEEMED APPROVED. B. THE COMMISSIONER, IN CONSULTATION WITH THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL, SHALL DEVELOP A STREAMLINED APPLICATION REVIEW AND APPROVAL PROCESS TO BE AVAILABLE FOR USE ON OR BEFORE JANUARY FIRST, TWO THOUSAND EIGHTEEN IN RELATION TO THE APPROVAL OF COMPONENTS OF A CONTIN- UING CARE RETIREMENT COMMUNITY, INCLUDING, BUT NOT LIMITED TO, A RESI- DENTIAL HEALTH CARE FACILITY, ADULT CARE FACILITY AND ASSISTED LIVING FACILITY; PROVIDED, HOWEVER, THAT NO SUCH STREAMLINED APPLICATION REVIEW AND APPROVAL PROCESS SHALL LIMIT OR RESTRICT THE AUTHORITY OF THE PUBLIC HEALTH AND PLANNING COUNCIL TO ISSUE FINAL APPROVAL OR DISAPPROVAL FOR THE ESTABLISHMENT, CONSTRUCTION OR ADDITION OF RESIDENTIAL HEALTH CARE FACILITY BEDS. C. FOR AN APPLICATION THAT REQUIRES APPROVAL BY THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL, THE APPLICATION SHALL BE PLACED ON THE NEXT S. 5172 6 COUNCIL AGENDA FOLLOWING THE COMMISSIONER DEEMING THE APPLICATION COMPLETE. D. WHERE THE COMMISSIONER REQUIRES THE APPLICANT TO SUBMIT INFORMATION TO SATISFY A CONTINGENCY IMPOSED ON THE APPROVAL OF AN APPLICATION, THE COMMISSIONER SHALL HAVE THIRTY CALENDAR DAYS TO REVIEW AND APPROVE OR DISAPPROVE THE SUBMITTED INFORMATION. IF THE COMMISSIONER DETERMINES THAT THE INFORMATION IS INCOMPLETE, THE DEPARTMENT SHALL NOTIFY THE APPLICANT IN WRITING AND PROVIDE THE APPLICANT WITH TEN CALENDAR DAYS TO CORRECT THE DEFICIENCY OR PROVIDE ADDITIONAL INFORMATION. IF THE COMMIS- SIONER DETERMINES THAT THE SUBMITTED INFORMATION DOES NOT SATISFY THE CONTINGENCY, THE BASIS FOR SUCH DISAPPROVAL SHALL BE PROVIDED IN WRIT- ING; HOWEVER, DISAPPROVAL SHALL NOT BE BASED ON THE INCOMPLETENESS OF THE APPLICATION. WITHIN FIFTEEN CALENDAR DAYS OF COMPLETE SATISFACTION OF A CONTINGENCY, THE COMMISSIONER SHALL TRANSMIT THE FINAL APPROVAL LETTER TO THE APPLICANT. § 5. Subdivision 1 of section 4604 of the public health law, as amended by chapter 659 of the laws of 1997, is amended to read as follows: 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 adver- tise itself or otherwise hold itself as a "continuing care retirement community" OR A "LIFE PLAN 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. § 6. Subdivision 1 of section 4655 of the public health law, as amended by chapter 545 of the laws of 2004, is amended to read as follows: 1. No person shall construct, expand, acquire, maintain, or operate a fee-for-service continuing care retirement community, or enter into a contract as an operator, or solicit the execution of any contract for fee-for-service continuing care retirement community services to be provided within the state or advertise itself or otherwise hold itself as a "fee-for-service continuing care retirement community" OR A "LIFE PLAN COMMUNITY", without obtaining a certificate of authority pursuant to this article; provided, however, nothing in this subdivision shall prohibit a person, authorized pursuant to section forty-six hundred seventy-four or forty-six hundred seventy-five of this article, from entering into priority reservation agreements, soliciting, collecting or receiving priority reservation fees, or constructing and maintaining sales offices and model units with respect to a proposed fee-for-service continuing care retirement community. Such facility shall obtain approval to utilize residential health care facility beds authorized under subdivision five of section forty-six hundred four of this chapter and/or shall meet such other conditions for acquisition of the residen- tial health care facility beds as the commissioner may determine. § 7. Subdivision 3 of section 4604 of the public health law, as amended by chapter 7 of the laws of 2015, is amended to read as follows: 3. Nothing in this article shall be construed to enlarge, diminish or modify: a social services district's otherwise valid recovery under S. 5172 7 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 resi- dents who have been admitted in accordance with a contract provided that, upon admission to the adult care facility, such residents shall be given a notice which shall include, at a minimum, information regarding facility services, resident responsibilities, supplemental services, resident rights and protections and circumstances that warrant transfer, SUBJECT TO THE PROVISIONS OF SUBDIVISION TWENTY-ONE OF SECTION FORTY-SIX HUNDRED EIGHT OF THIS ARTICLE. 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. § 8. Subdivision 3 of section 4655 of the public health law, as added by chapter 519 of the laws of 2004, is amended to read as follows: 3. Nothing in this article shall be construed to enlarge, diminish or modify: a social services district's otherwise valid recovery under section three hundred sixty-nine of the social services law, nor medical assistance eligibility under title eleven of article five of the social services law, nor applicable provisions of the estates, powers and trusts law. Except as otherwise provided in this article, the activities of fee-for-service continuing care retirement communities shall be subject to any other law governing such activities including but not limited to article twenty-eight of this chapter and article seven of the social services law and regulations promulgated thereunder; provided, however, that the provisions of paragraphs (d) and (e) of subdivision four of section twenty-eight hundred one-a and section twenty-eight hundred two of this chapter shall not apply, and provided that the provisions of paragraph (a) of subdivision one and the provisions of subdivision two of section four hundred sixty-one-b of the social services law with respect to public need and the provisions of subdivi- sion one of section four hundred sixty-one-c of the social services law shall not apply to residents who have been admitted in accordance with a fee-for-service continuing care contract provided that, upon admission to the adult care facility, such residents shall be given a notice which shall include, at a minimum, information regarding facility services, resident responsibilities, supplemental services, resident rights and protections and circumstances that warrant transfer, SUBJECT TO THE PROVISIONS OF SUBDIVISION SEVENTEEN OF SECTION FORTY-SIX HUNDRED FIFTY- NINE OF THIS ARTICLE. The number of residential health care facility beds available pursuant to subdivision four of this section, without proof of public need therefor, shall be reduced by the number of resi- S. 5172 8 dential health care demonstration facility beds that are approved pursu- ant to this article. § 9. Subdivision 4 of section 4604 of the public health law, as amended by chapter 659 of the laws of 1997, subparagraphs (i), (ii) and (iii) of paragraph a as further amended by section 104 of part A of chapter 62 of the laws of 2011, paragraphs b and d as amended by chapter 549 of the laws of 2014, paragraph c as amended by chapter 7 of the laws of 2015, is amended to read as follows: 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 THE COMMISSIONER: a. [(i)] the [superintendent of financial services as to the actuarial principles involved, the financial feasibility of the facility, the form and content of the proposed contracts to be entered into with residents and insurance contracts between an operator and an insurer requiring the insurer to assume, wholly or in part, the cost of medical or health related services to be provided to a resident] ACTUARIAL PRINCIPLES INVOLVED, THE FINANCIAL FEASIBILITY OF THE FACILITY AND THE FORM AND CONTENT OF THE PROPOSED CONTRACTS TO BE ENTERED INTO WITH RESIDENTS, PROVIDED THAT THE REVIEW MAY BE CONDUCTED BY THE COMMISSIONER OR HIS OR HER DESIGNEE, INCLUDING ANY NECESSARY INDEPENDENT ACTUARIAL REVIEW; [(ii) the superintendent of financial services as to] B. 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 hous- ing 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 calcu- lated pursuant to the approved rating methodology shall require approval of the [superintendent] COMMISSIONER. The term "rating methodology" as used herein shall incorporate a combination of variables including but not limited to a pricing structure for comparable services, projected operating and health care costs and the applicable inflationary impact thereon, projected income and occupancy rates and the refundability component of the continuing care retirement contract[. (iii) the superintendent of financial services as to]; C. any monthly care fee charged to a resident which may be increased or decreased subject to approval by the [superintendent of financial services] COMMISSIONER, 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] COMMISSIONER OR HIS OR HER DESIGNEE, INCLUDING ANY NECESSARY INDEPENDENT ACTUARIAL REVIEW, and provided further that the [superintendent] COMMISSIONER is notified of any such increase or decrease prior to its taking effect[. (iv) An] D. THE REQUIREMENT THAT AN individual resident's monthly care fee shall not be modified because of the increased need for services of that resident; [b. the commissioner as to those] E. aspects of the application relat- ing to adult care facility beds, if any; [c.] F. FOLLOWING REVIEW BY the public health and health planning council as to the establishment of a skilled nursing facility by the applicant and as to such other facilities and services as may require the public health and health planning council's approval of the applica- S. 5172 9 tion; provided, however, that the recommendations of the health systems agency having geographical jurisdiction of the area where the continuing care retirement community is located shall not be required with respect to the establishment of an on-site or affiliated residential health care facility to serve residents as part of the continuing care retirement community, for up to the total number of residential health care facili- ty beds provided for in subdivision five of this section in communities statewide; [d. the commissioner under section twenty-eight hundred two of this chapter;] G. provided, however, that, the recommendations of the public health and health planning council and the health systems agency having geographical jurisdiction of the area where the continuing care retire- ment community is located shall not be required with respect to the construction of an on-site or affiliated residential health care facili- ty to serve residents as part of the continuing care retirement communi- ty, for up to the total number of residential health care facility beds provided for in subdivision five of this section in communities state- wide; and [e. the] H. UPON CONSULTATION WITH 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. § 10. The opening paragraph of subdivision 6 of section 4604 of the public health law, as amended by chapter 659 of the laws of 1997, is amended to read as follows: If the [approvals] APPLICANT HAS SATISFIED THE CRITERIA required by subdivision four of this section [have been obtained], the [council] COMMISSIONER 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] COMMISSIONER shall have determined that: § 11. Subdivisions 7 and 9 of section 4604 of the public health law, subdivision 7 as amended by chapter 659 of the laws of 1997 and subdivi- sion 9 as added by chapter 689 of the laws of 1989, are amended to read as follows: 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] COMMISSIONER 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. 9. [If the council approves the application, the] THE commissioner shall issue the certificate of authority to the applicant UPON APPROVAL OF THE APPLICATION. § 12. Section 4604-a of the public health law, as amended by chapter 659 of the laws of 1997, paragraph g of subdivision 2 as amended by chapter 549 of the laws of 2014, is amended to read as follows: § 4604-a. [Council] COMMISSIONER approval required for industrial development agency financing in connection with continuing care retire- ment communities. 1. No person seeking financing in connection with a continuing care retirement community through an industrial development agency shall undertake such financing without the prior approval of the [council] COMMISSIONER. Upon approving a proposed financing pursuant to this section, the [council] COMMISSIONER shall issue a certificate of authorization to the applicant. S. 5172 10 2. Prior to approving such financing, the [council] COMMISSIONER shall find that: a. The operator has (i) executed contracts for at least seventy percent of all living units and has on deposit at least ten percent of the entrance fees or purchase price for such units; or (ii) executed contracts for at least sixty percent of all living units and has on deposit at least twenty-five percent of the entrance fees or purchase price for such units. b. The operator has demonstrated capability to comply fully with the requirements for a certificate of authority and has obtained a contin- gent certificate of authority pursuant to section forty-six hundred four of this article and the operator has agreed to meet the requirements of article eighteen-A of the general municipal law. c. The applicant is a not-for-profit corporation as defined in section one hundred two of the not-for-profit corporation law that is (i) eligi- ble for tax-exempt financing under this section and (ii) is exempt from taxation pursuant to section 501(c)(3) of the federal internal revenue code, and either has (i) an equity position in the community equivalent to no less than fifteen percent of the amount to be financed in the aggregate; or (ii) covenants (A) to meet a ratio of cash and investments to outstanding debt (reserve ratio) of no less than twenty-five percent commencing at the end of the first quarter after twenty-four months from the receipt of a certificate of occupancy for the facility, and (B) to maintain that reserve ratio, as tested quarterly based upon the facili- ty's interim financial statements and annually based upon audited finan- cial statements, until debt reduction equal to twenty-five percent of total indebtedness is accomplished; and (c) to reduce total debt by twenty-five percent of the total indebtedness at the time the certif- icate of occupancy is received by no later than five years after the receipt of the certificate of occupancy. d. The operator has submitted in connection with the proposed financ- ing a financial feasibility study, including a financial forecast and market study prepared by an independent firm nationally recognized for continuing care retirement community feasibility studies, demonstrating to the satisfaction of the [council] COMMISSIONER the financial sound- ness of the financing. In addition, the operator has submitted an analy- sis of economic costs and benefits, including job creation and retention, the estimated value of tax exemptions provided, the project's impact on local businesses and the availability and comparative cost of alternative financing sources. Such analysis shall be prepared by an independent entity. e. The operator will establish and maintain a fully funded debt service reserve equal to the sum of maximum annual debt service (inter- est plus annual scheduled principal payments, not including balloon maturities, if any) on bonds authorized thereby having a maturity of ten years or less, plus the maximum annual debt service on bonds authorized thereby having a maturity of greater than ten years, provided, however, that in the case of tax-exempt bond issues, such debt service reserve shall not exceed the maximum amount permitted by federal tax law. f. The operator will provide for such remedies or limitations of reme- dies of bondholders as may be required by or consistent with the provisions of this article and any regulations in existence at the time of the issuance promulgated thereunder. g. Unless all residents or continuing care at home contract holders have life care contracts, the operator has adequately made the assur- ances required by subdivision two of section forty-six hundred twenty- S. 5172 11 four of this article and has agreed to fund the liability in the event that such resident's or contract holder's assets are insufficient to pay for nursing facility services for a one year period. 3. In addition, an operator which is subject to the provisions of this section shall: a. provide the [council or its designee] COMMISSIONER with notice of any monetary default or covenant default in connection with such financ- ing and shall further notify the [council or its designee] COMMISSIONER of any withdrawal from the debt service reserve fund established in connection with such financing; b. respond in writing to the operational recommendations of the [coun- cil or its designee] COMMISSIONER with respect to protecting the inter- ests of continuing care retirement community residents in the event of any monetary default or covenant default provided for in connection with such financing; c. provide adequate security for the repayment of the bonds issued, including the granting of liens on real and personal property and the pledge of project revenues; the maintenance of minimum debt service coverage and other financial ratios as shall be required in regulations in existence at the time of issuance by the [council] COMMISSIONER; and restrictions on other debt and expenditures; and d. undertake to maintain the financial feasibility of the facility, including the retention of an independent consultant to recommend and help implement remedial action. 4. The [council] COMMISSIONER may request, and shall receive, the technical assistance of any state agency or state public authority in performing its functions under this article. § 13. Paragraphs a and b of subdivision 2 of section 4605 of the public health law, paragraph a as amended by chapter 659 of the laws of 1997 and paragraph b as amended by chapter 401 of the laws of 2003, are amended to read as follows: a. The commissioner[, in consultation with the council,] may authorize an operator of a community with an on-site or affiliated residential health care facility to provide[, for a limited period,] residential health care facility services to persons, who are not residents of the community, provided, however, that the operator shall not discriminate in the admission, retention or care of any such person because such person is or will be eligible for, or receives or will receive, medical assistance benefits pursuant to title eleven of article five of the social services law. FOR COMMUNITIES IN EXISTENCE PRIOR TO JANUARY FIRST, TWO THOUSAND SEVENTEEN WITH AN ON-SITE OR AFFILIATED RESIDENTIAL HEALTH CARE FACILITY, EACH COMMUNITY IS AUTHORIZED TO CONTINUE TO PROVIDE RESIDENTIAL HEALTH CARE FACILITY SERVICES TO PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY AT A PERCENTAGE DEEMED PERMISSIBLE BY THE COMMISSIONER. FOR COMMUNITIES APPROVED FOLLOWING JANUARY FIRST, TWO THOUSAND SEVENTEEN WITH AN ON-SITE OR AFFILIATED RESIDENTIAL HEALTH CARE FACILITY, EACH COMMUNITY SHALL BE PERMITTED TO PROVIDE RESIDENTIAL HEALTH CARE FACILITY SERVICES TO PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY FOR A PERIOD OF SEVEN YEARS, PROVIDED, HOWEVER, THAT THE OPER- ATOR MAY SEEK AN EXTENSION OF THIS AUTHORIZATION AT THE END OF THE SEVEN-YEAR PERIOD UPON WRITTEN APPLICATION TO THE COMMISSIONER. b. [The] UPON WRITTEN NOTICE TO THE commissioner, [in consultation with the council, may authorize] an operator of a community with an on-site or affiliated adult care facility [to] MAY provide[, for a limited period,] adult care facility services to persons, who are not residents of the community, provided, however, that the operator shall S. 5172 12 not discriminate in the admission, retention or care of any such person because such person is or will be eligible for, or receives or will receive, medical assistance benefits pursuant to title eleven of article five of the social services law or supplemental security income benefits pursuant to title sixteen of the federal social security act and any additional state payments made under title six of article five of the social services law. FOR PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY AT THE TIME OF ADMISSION TO AN ADULT CARE FACILITY, THE TRANSFER OF SUCH RESIDENT TO AN ON-SITE OR AFFILIATED RESIDENTIAL HEALTH CARE FACILITY DUE TO MEDICAL NECESSITY SHALL NOT CONSTITUTE RESIDENTIAL HEALTH CARE FACILITY SERVICES TO PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY. § 14. Paragraphs a and b of subdivision 2 of section 4656 of the public health law, as added by chapter 519 of the laws of 2004, are amended to read as follows: a. The commissioner[, in consultation with the council,] may authorize an operator of a community with an on-site or affiliated residential health care facility to provide[, for a limited period,] residential health care facility services to persons, who are not residents of the community, provided, however, that the operator shall not discriminate in the admission, retention or care of any such person because such person is or will be eligible for, or receives or will receive, medical assistance benefits pursuant to title eleven of article five of the social services law. FOR COMMUNITIES IN EXISTENCE PRIOR TO JANUARY FIRST, TWO THOUSAND SEVENTEEN WITH AN ON-SITE OR AFFILIATED RESIDENTIAL HEALTH CARE FACILITY, EACH COMMUNITY IS AUTHORIZED TO CONTINUE TO PROVIDE RESIDENTIAL HEALTH CARE FACILITY SERVICES TO PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY AT A PERCENTAGE DEEMED PERMISSIBLE BY THE COMMISSIONER. FOR COMMUNITIES APPROVED FOLLOWING JANUARY FIRST, TWO THOUSAND SEVENTEEN WITH AN ON-SITE OR AFFILIATED RESIDENTIAL HEALTH CARE FACILITY, EACH COMMUNITY SHALL BE PERMITTED TO PROVIDE RESIDENTIAL HEALTH CARE FACILITY SERVICES TO PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY FOR A PERIOD OF SEVEN YEARS, PROVIDED, HOWEVER, THAT THE OPER- ATOR MAY SEEK AN EXTENSION OF THIS AUTHORIZATION AT THE END OF THE SEVEN-YEAR PERIOD UPON WRITTEN APPLICATION TO THE COMMISSIONER. FOR PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY AT THE TIME OF ADMISSION TO AN ADULT CARE FACILITY, THE TRANSFER OF SUCH RESIDENT TO AN ON-SITE OR AFFILIATED RESIDENTIAL HEALTH CARE FACILITY DUE TO MEDICAL NECESSITY SHALL NOT CONSTITUTE RESIDENTIAL HEALTH CARE FACILITY SERVICES TO PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY. b. [The] UPON WRITTEN NOTICE TO THE commissioner, [in consultation with the council, may authorize] an operator of a community with an on-site or affiliated adult care facility [to] MAY provide[, for a limited period,] adult care facility services to persons, who are not residents of the community, provided, however, that the operator shall not discriminate in the admission, retention or care of any such person because such person is or will be eligible for, or receives or will receive, medical assistance benefits pursuant to title eleven of article five of the social services law or supplemental security income benefits pursuant to title sixteen of the federal social security act and any additional state payments made under title six of article five of the social services law. FOR PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY AT THE TIME OF ADMISSION TO AN ADULT CARE FACILITY, THE TRANSFER OF SUCH RESIDENT TO AN ON-SITE OR AFFILIATED RESIDENTIAL HEALTH CARE FACILITY DUE TO MEDICAL NECESSITY SHALL NOT CONSTITUTE RESIDENTIAL HEALTH CARE FACILITY SERVICES TO PERSONS WHO ARE NOT RESIDENTS OF THE COMMUNITY. S. 5172 13 § 15. Section 4605-a of the public health law, as added by chapter 7 of the laws of 2015, is amended to read as follows: § 4605-a. Certificate of authority; authority to offer continuing care at home contracts. A continuing care retirement community may offer continuing care at home contracts upon approval by the [council] COMMIS- SIONER to amend the continuing care retirement community's certificate of authority. In order to qualify for an amendment to its certificate of authority, the continuing care retirement community shall submit to the commissioner the following: 1. a business plan to the commissioner [and superintendent] that includes the following: (a) a description of the continuing care at home services that will be provided, the market that will be served by the continuing care at home contracts, and the fees to be charged to prospective continuing care at home contract holders; (b) a copy of the proposed continuing care at home contract; and (c) an actuarial study prepared by an independent actuary in accord- ance with standards adopted by the American Academy of Actuaries demon- strating the impact that the continuing care at home contracts will have on the overall operations of the continuing care retirement community and further demonstrating that the addition of continuing care at home contracts will not jeopardize the financial solvency of the continuing care retirement community. 2. a market feasibility study demonstrating to the commissioner [and superintendent] sufficient consumer interest in continuing care at home contracts and further demonstrating that the addition of continuing care at home contracts will not have an adverse impact on the provision of services to continuing care retirement contract holders. 3. materials that meet all requirements established by the [New York state] department [of financial services]. 4. [A] A copy of the notification sent to continuing care retirement contract holders describing the anticipated impact of the addition of continuing care at home contracts on continuing care retirement communi- ty resources and proof that such notification has been distributed to all continuing care retirement contract holders. § 16. Section 4605-b of the public health law, as added by chapter 7 of the laws of 2015, is amended to read as follows: § 4605-b. Certificate of authority; limitation on continuing care at home contracts. The number of continuing care at home contracts approved on a certificate of authority shall be limited to: 1. The number of approved living units on the continuing care retire- ment community's premises that are intended for ILU residents, except that the [council] COMMISSIONER may approve additional contracts upon a submission [to the commissioner] by an operator consistent with the provisions set forth in section forty-six hundred five-a of this arti- cle; 2. The demonstrated number of continuing care at home contract holders that can be supported in the existing or approved future capacity of the adult care facility and skilled nursing facility consistent with the provisions set forth in section forty-six hundred five-a of this arti- cle; and 3. Conditions set forth by the [New York state] department [of finan- cial services], based upon the [superintendent] COMMISSIONER'S assess- ment of the following: (a) the overall financial impact on the community; and S. 5172 14 (b) the submitted materials set forth in section forty-six hundred five-a of this article. § 17. Section 4607 of the public health law, as added by chapter 689 of the laws of 1989, paragraph d of subdivision 2 as amended by chapter 659 of the laws of 1997, is amended to read as follows: § 4607. Annual statement. 1. Within four months of close of the oper- ator's fiscal year, unless an extension of time to file has been grant- ed, the operator shall file an annual statement with the commissioner [and superintendent] showing the condition as of the last day of the preceding calendar or fiscal year. If the commissioner [and superinten- dent do] DOES not receive the annual statement within four months of the end of the operator's fiscal year or have not granted an extension of time to file, the [council] COMMISSIONER may charge a late fee. 2. The annual statement shall be in such form as the [council] COMMIS- SIONER prescribes and shall contain at least the following: a. Any change in status with respect to the information required to be submitted pursuant to section forty-six hundred four of this article; b. Financial statements audited by an independent certified public accountant, which shall contain, for two or more periods if the communi- ty has been in existence that long, the following: (i) an accountant's opinion and, in accordance with generally accepted accounting principles: (A) a balance sheet, (B) a statement of income and expenses, (C) a statement of equity or fund balances, (D) a statement of changes in financial position, (ii) notes to the financial statements considered customary or neces- sary to ensure full disclosure of the financial statements, financial condition, and operation; c. A detailed listing of the assets maintained for the reserves; d. A copy of the most recent actuarial review of the community, including such information as may be required by the [superintendent] COMMISSIONER including an opinion of a qualified consulting actuary, as to the current and projected soundness of the community, provided howev- er that a new actuarial review must be submitted triennially; and e. Such other reasonable financial and other information as the [coun- cil] COMMISSIONER may require with respect to the operator or the commu- nity, or its directors, controlling persons, trustees, members, branch- es, subsidiaries or affiliates to determine the financial status of the community and the management capabilities of the operator. 3. Sixty days before commencement of each calendar or fiscal year or official opening date, whichever is applicable, each operator shall file with the commissioner [and superintendent] a computation of the annual long-term debt service and a projected annual revenue and expense summa- ry for the next ten years. § 18. Section 4658 of the public health law, as added by chapter 519 of the laws of 2004, is amended to read as follows: § 4658. Annual statement. 1. Within four months of close of an opera- tor's fiscal year, unless an extension of time to file has been granted, the operator shall file an annual statement with the commissioner show- ing the condition as of the last day of the preceding calendar or fiscal year. If the commissioner does not receive the annual statement within four months of the end of the operator's fiscal year or has not granted an extension of time to file, the council may charge a late fee. 2. The annual statement shall be in such form as the [council] COMMIS- SIONER prescribes and shall contain at least the following: S. 5172 15 a. Any change in status with respect to the information required to be submitted pursuant to section forty-six hundred fifty-seven of this article; b. Financial statements audited by an independent certified public accountant, which shall contain, for two or more periods if the communi- ty has been in existence that long, the following: (i) notes to the financial statements considered customary or neces- sary to ensure full disclosure of the financial statements, financial condition, and operation; and (ii) an accountant's opinion and, in accordance with generally accepted accounting principles: (A) a balance sheet, (B) a statement of income and expenses, (C) a statement of equity or fund balances, and (D) a statement of changes in financial position; c. A detailed listing of the assets maintained for the reserves; and d. Such other reasonable financial and other information as the [coun- cil] COMMISSIONER may require with respect to the operator or the commu- nity, or its directors, controlling persons, trustees, members, branch- es, subsidiaries or affiliates to determine the financial status of the community and the management capabilities of the operator. 3. Sixty days before commencement of each calendar or fiscal year or official opening date, whichever is applicable, each operator shall file with the commissioner a computation of the annual long-term debt service and a projected annual revenue and expense summary for the next ten years. § 19. Paragraphs a and c of subdivision 15 of section 4608 of the public health law, as amended by chapter 7 of the laws of 2015, are amended to read as follows: a. the resident or contract holder, as applicable shall, if eligible, enroll in medicare parts a and b or the equivalent and shall continue to maintain that coverage, together with medicare supplement coverage at least equivalent in benefits to those established by the superintendent as minimum benefits for medicare supplement policies; PROVIDED, HOWEVER, THAT SUCH MEDICARE SUPPLEMENT COVERAGE SHALL COVER ANY COINSURANCE AMOUNTS DUE AND PAYABLE FOR THE TWENTY-FIRST DAY THROUGH THE HUNDREDTH DAY OF ANY MEDICARE PART A BENEFIT PERIOD FOR POST-HOSPITAL SKILLED NURSING FACILITY CARE; c. if the community cannot purchase medicare coverage and medicare supplement coverage or the equivalent, the community shall have the authority to require an adjustment in monthly fees, subject to the approval of the [superintendent] COMMISSIONER, to fund the additional risk to the facility; and § 20. Subdivision 16 of section 4608 of the public health law, as amended by chapter 7 of the laws of 2015, is amended to read as follows: 16. A statement that any amendment to the contract and any change in fees or charges, other than those within the guidelines of an approved rating system, must be approved by the [superintendent of financial services] COMMISSIONER; § 21. Section 4608 of the public health law is amended by adding a new subdivision 21 to read as follows: 21. A STATEMENT THAT, EXCEPT AS OTHERWISE REQUIRED BY LAW, RULE OR REGULATION, A CONTINUING CARE RETIREMENT CONTRACT OR CONTINUING CARE AT HOME CONTRACT SHALL TAKE PRECEDENCE OVER ANY CONFLICTING REQUIREMENTS FOR SEPARATE ADMISSIONS AGREEMENTS FOR COVERED LEVELS OF CARE INCLUDING, BUT NOT LIMITED TO, A NURSING HOME ADMISSIONS AGREEMENT, AN ADULT CARE FACILITY ADMISSION AGREEMENT OR AN ASSISTED LIVING RESIDENCY AGREEMENT. S. 5172 16 § 22. Section 4659 of the public health law, as added by chapter 519 of the laws of 2004, is amended by adding a new subdivision 17 to read as follows: 17. A STATEMENT THAT A FEE-FOR-SERVICE CONTINUING CARE CONTRACT SHALL TAKE PRECEDENCE OVER ANY CONFLICTING REQUIREMENTS FOR SEPARATE ADMIS- SIONS AGREEMENTS FOR COVERED LEVELS OF CARE, INCLUDING, BUT NOT LIMITED TO, A NURSING HOME ADMISSIONS AGREEMENT, AN ADULT CARE FACILITY ADMIS- SION AGREEMENT, OR AN ASSISTED LIVING RESIDENCY AGREEMENT. § 23. Subdivision 4 of section 4609 of the public health law, as added by chapter 689 of the laws of 1989, is amended and a new subdivision 5 is added to read as follows: 4. Any refund made pursuant to this section must be paid no later than thirty days after the formerly occupied unit has been resold, but in no event later than [one year] TWO YEARS after the formerly occupied unit has been vacated. 5. NOTHING IN THIS SECTION SHALL PRECLUDE A RESIDENT FROM MAKING AN IMMEDIATE IRREVOCABLE GIFT OR A BEQUEST TO THE COMMUNITY OF ALL OR PART OF THE ENTRANCE FEE WHICH WOULD OTHERWISE BE REFUNDED UNDER THIS SECTION. § 24. Subdivision 4 of section 4660 of the public health law, as added by chapter 519 of the laws of 2004, is amended and a new subdivision 5 is added to read as follows: 4. Any refund made pursuant to this section shall be paid no later than thirty days after the formerly occupied unit has been resold, but in no event later than [one year] TWO YEARS after the formerly occupied unit has been vacated; PROVIDED, FURTHER, THAT A RESIDENT TRANSFER TO ANOTHER LEVEL OF CARE IN THE COMMUNITY SHALL NOT BE CONSIDERED A WITH- DRAWAL OF SUCH RESIDENT FOR PURPOSES OF REQUIRING A REFUND UNDER THIS SECTION. 5. NOTHING IN THIS SECTION SHALL PRECLUDE A RESIDENT FROM MAKING AN IMMEDIATE IRREVOCABLE GIFT OR A BEQUEST TO THE COMMUNITY OF ALL OR PART OF THE ENTRANCE FEE WHICH WOULD OTHERWISE BE REFUNDED UNDER THIS SECTION. § 25. Subparagraph (v) of paragraph b of subdivision 6 of section 4610 of the public health law, as amended by chapter 659 of the laws of 1997, is amended to read as follows: (v) the total amount of escrowed entrance fees or deposits that may be approved for release under this paragraph shall not exceed [fifteen] EIGHTY-FIVE percent of [the total costs of acquiring, constructing and equipping the proposed community] ENTRANCE FEES OR DEPOSITS COLLECTED; § 26. Paragraph e of subdivision 1-a of section 4663 of the public health law, as added by chapter 545 of the laws of 2004, is amended to read as follows: e. the total amount of escrowed entrance fees or deposits that may be approved for release under this subdivision shall not exceed [fifteen] EIGHTY-FIVE percent of [the total costs of acquiring, constructing and equipping the proposed community] ENTRANCE FEES OR DEPOSITS COLLECTED; § 27. Subdivisions 1 and 2 of section 4614 of the public health law, as amended by chapter 7 of the laws of 2015, are amended to read as follows: 1. The commissioner, or designee[; and the superintendent, or desig- nee;] may at any time, and shall at least once every three years, visit each community and examine the business of any applicant for a certif- icate of authority and any operator engaged in the execution of continu- ing care retirement contracts or continuing care at home contracts or engaged in the performance of obligations under such contracts. Routine S. 5172 17 examinations may be conducted by having documents designated by and submitted to such [commissioners or superintendent] COMMISSIONER, which shall include financial documents and records conforming to commonly accepted accounting principles and practices. The final written report of each such examination conducted by such [commissioners or superinten- dent] COMMISSIONER shall be filed with the commissioner and, when so filed, shall constitute a public record. A copy of each report shall be provided to members of the continuing care retirement community council. Any operator being examined shall, upon request, give reasonable and timely access to all of its records. The representative or examiner designated by the [commissioners or superintendent, respectively,] COMMISSIONER may, at any time, examine the records and affairs and inspect the community's facilities, whether in connection with a formal examination or not. 2. Any duly authorized officer, employee, or agent of the [health] department[, or department of financial services] may, upon presentation of proper identification, have access to, and inspect, any records main- tained by the community relevant to the [respective] agency's regulatory authority, with or without advance notice, to secure compliance with, or to prevent a violation of, any provision of this article. § 28. Section 4615 of the public health law, as added by chapter 689 of the laws of 1989, paragraph j of subdivision 1 as further amended by section 104 of part A of chapter 62 of the laws of 2011, paragraph k of subdivision 1 as amended by chapter 7 of the laws of 2015 and subdivi- sion 3 as amended by chapter 659 of the laws of 1997, is amended to read as follows: § 4615. Revocation, suspension or annulment of certificate of authori- ty. 1. The [council] COMMISSIONER may revoke, suspend, limit or annul the certificate of authority of an operator upon proof that: a. The operator failed to continue to meet the requirements for the authority originally granted; b. The operator lacked one or more of the qualifications for the certificate of authority as specified by this article; c. The operator made a material misstatement, misrepresentation, or committed fraud in obtaining the certificate of authority, or in attempting to obtain the same; d. The operator lacked fitness or was untrustworthy; e. The operator engaged in fraudulent or dishonest practices of management in the conduct of business under the certificate of authori- ty; f. The operator converted or withheld funds; g. The operator failed to comply with, or violated, any proper order, rule or regulation of the council or violated any provision of this article; h. The unsound business practices of the operator renders its further transactions in this state hazardous or injurious to the public; i. The operator has refused to be examined or to produce its accounts, records, and files for examination, or its officers, employees, or controlling persons have refused to give information with respect to the affairs of the community or to perform any other legal obligation as to such examination; j. The [superintendent of financial services] COMMISSIONER has made a determination that the operator is insolvent within the meaning of section one thousand three hundred nine of the insurance law; or S. 5172 18 k. The commissioner has found violations of applicable statutes, rules or regulations which threaten to affect directly the health, safety, or welfare of a resident. 1-A. THE COMMISSIONER SHALL NOT REVOKE, SUSPEND, LIMIT OR ANNUL THE CERTIFICATE OF AUTHORITY OF AN OPERATOR PURSUANT TO SUBDIVISION ONE OF THIS SECTION WITHOUT FIRST CONSULTING WITH, AND RECEIVING A RECOMMENDA- TION FROM, THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL. 2. No certificate of authority shall be revoked, suspended, limited or annulled without a hearing, except that a certificate of authority may be temporarily suspended or limited prior to a hearing for a period not in excess of sixty days upon written notice to the operator following a finding by the commissioner that the public health or safety is in immi- nent danger or there exists any condition or practice or a continuing pattern of conditions or practices that pose an imminent danger to the health or safety of any resident. Any delay in the hearing process occa- sioned by the operator shall toll the running of said suspension or limitation and shall not abridge the full time provided in this subdivi- sion. 3. Any state agency which seeks to revoke, suspend, limit or annul the certificate of authority or any other license or certificate required to be obtained by an operator of a continuing care retirement community pursuant to law, shall request the [council] COMMISSIONER to commence a hearing pursuant to this section. 4. The [council] COMMISSIONER shall fix a time and place for the hear- ing. The commissioner shall cause to be served in person or mailed by registered or certified mail to the operator at least ten days before the date fixed for the hearing a copy of the charges, together with the notice of the time and place of the hearing. The operator shall file with the commissioner not less than three days prior to the hearing a written answer to the charges. The agency which initiated the proceeding shall be responsible for providing evidence in support of the charges to the commissioner in order to prepare a statement of charges and shall provide evidence in support of the charges at the hearing. 5. All orders hereunder shall be subject to review as provided in article seventy-eight of the civil practice law and rules. Application for such review must be made within sixty days after service in person or by registered or certified mail of a copy of the order upon the oper- ator. § 29. Section 4616 of the public health law, as added by chapter 689 of the laws of 1989, the opening paragraph as amended by chapter 659 of the laws of 1997, is amended to read as follows: § 4616. Appointment of a caretaker. Upon a determination by the [coun- cil] COMMISSIONER that there exists operational deficiencies in a continuing care retirement community that show: 1. a condition or conditions in substantial violation of the standards for health, safety or patient care established under federal or state law or regulations; OR 2. [or] that there exists in the facility a pattern or practice of habitual violation of the standards of health, safety or patient care established under federal or state law or regulations, the [council] COMMISSIONER shall take the actions prescribed by section forty-six hundred fifteen of this article, and, where the [council] COMMISSIONER deems it to be in the public interest, the [council may request that the commissioner, and upon request of the council the] commissioner shall[,] petition a court of competent jurisdiction to appoint a caretaker as defined in section twenty-eight hundred one of this chapter. The peti- S. 5172 19 tion, the proceedings, and the procedures for appointment of a caretaker shall be governed by the provisions of section forty-six hundred seven- teen of this article, and the powers, duties and rights of a caretaker appointed pursuant to such section shall be the same as those authorized by subdivision four of such section. § 30. Subdivisions 1, 2 and 8 of section 4617 of the public health law, subdivision 1 as amended by chapter 659 of the laws of 1997, and subdivisions 2 and 8 as added by chapter 689 of the laws of 1989, are amended to read as follows: 1. The [council] COMMISSIONER may, [if it determines] UPON A DETERMI- NATION that serious operational deficiencies exist or serious financial problems exist and such action is desirable, enter into an agreement with the operator or owners of a continuing care retirement community with respect to the appointment of a receiver to take charge of the community under conditions as found acceptable by both parties. Receiv- ership commenced in accordance with the provisions of this subdivision shall terminate at such time as may be provided in the receivership agreement, or at such time as either party notifies the other in writing that it wishes to terminate such receivership. 2. [Upon request of the council, the] THE commissioner shall, at the time of revocation, suspension or temporary suspension of a certificate of authority, apply to the supreme court where the community is situated for an order directing the owner of the land and/or structure on or in which the community is located, to show cause why a receiver should not be appointed to take charge of the community. In those cases where the certificate of authority has been revoked, suspended or temporarily suspended, the supreme court shall appoint a receiver that, where reasonably possible, is a legal entity that holds a valid certificate of authority. Such application shall contain proof by affidavit that the facility has had its certificate of authority revoked, suspended, or temporarily suspended. Such order to show cause shall be returnable not less than five days after service is completed and shall provide for personal service of a copy thereof and the papers on which it is based, on the owner or owners of the land and/or structures on or in which the community is located. If any such owner and manager cannot with due diligence be served personally within the county where the property is located and within the time fixed in such order, then service may be made on such person by posting a copy thereof in a conspicuous place within the community in question, and by sending a copy thereof by registered mail, return receipt requested, to such owner at the last address registered by him with the department or in the absence of such registration to the address set forth in the last recorded deed with respect to the facility. Service shall be deemed complete on filing proof of service thereof in the office of the county clerk, or the clerk of the city of New York, as the case may be. 8. Any other provision of this article notwithstanding, the [council] COMMISSIONER may, if it deems appropriate, grant to any community oper- ating or scheduled to operate under a receivership authorized by this section a certificate of authority, the duration of which shall be limited to the duration of the receivership. § 31. Section 4668 of the public health law, as added by chapter 519 of the laws of 2004, is amended to read as follows: § 4668. Revocation, suspension or annulment of certificate of authori- ty. 1. The [council] COMMISSIONER may revoke, suspend, limit or annul the certificate of authority of an operator upon proof that: S. 5172 20 a. The operator failed to continue to meet the requirements for the authority originally granted; b. The operator lacked one or more of the qualifications for the certificate of authority as specified by this article; c. The operator made a material misstatement, misrepresentation, or committed fraud in obtaining the certificate of authority, or in attempting to obtain the same; d. The operator lacked fitness or was untrustworthy; e. The operator engaged in fraudulent or dishonest practices of management in the conduct of business under the certificate of authori- ty; f. The operator converted or withheld funds; g. The operator failed to comply with, or violated, any proper order, rule or regulation of the council or violated any provision of this article; h. The unsound business practices of the operator renders its further transactions in this state hazardous or injurious to the public; i. The operator has refused to be examined or to produce its accounts, records and files for examination, or its officers, employees or controlling persons have refused to give information with respect to the affairs of the community or to perform any other legal obligation as to such examination; or j. The commissioner has found violations of applicable statutes, rules or regulations which threaten to affect directly the health, safety, or welfare of a resident of a fee-for-service continuing care retirement community. 1-A. THE COMMISSIONER SHALL NOT REVOKE, SUSPEND, LIMIT OR ANNUL THE CERTIFICATE OF AUTHORITY OF AN OPERATOR PURSUANT TO SUBDIVISION ONE OF THIS SECTION WITHOUT FIRST CONSULTING WITH, AND RECEIVING A RECOMMENDA- TION FROM, THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL. 2. No certificate of authority shall be revoked, suspended, limited or annulled without a hearing, except that a certificate of authority may be temporarily suspended or limited prior to a hearing for a period not in excess of sixty days upon written notice to the operator following a finding by the commissioner that public health or safety is in imminent danger or there exists any condition or practice or a continuing pattern of conditions or practices that pose an imminent danger to the health or safety of any resident. Any delay in the hearing process occasioned by the operator shall toll the running of said suspension or limitation and shall not abridge the full time provided in this subdivision. 3. Any state agency which seeks to revoke, suspend, limit or annul the certificate of authority or any other license or certificate required to be obtained by an operator of a community pursuant to law, shall request the [council] COMMISSIONER to commence a hearing pursuant to this section. 4. The [council] COMMISSIONER shall fix a time and place for the hear- ing. The commissioner shall cause to be served in person or mailed by registered or certified mail to the operator at least ten days before the date fixed for the hearing a copy of the charges, together with the notice of the time and place of the hearing. The operator shall file with the commissioner not less than three days prior to the hearing a written answer to the charges. The agency which initiated the proceeding shall be responsible for providing evidence in support of the charges to the commissioner in order to prepare a statement of charges and shall provide evidence in support of the charges at the hearing. S. 5172 21 5. All orders pursuant to this section shall be subject to review as provided in article seventy-eight of the civil practice law and rules. Application for such review shall be made within sixty days after service in person or by registered or certified mail of a copy of the order upon the operator. § 32. Section 4669 of the public health law, as added by chapter 519 of the laws of 2004, is amended to read as follows: § 4669. Appointment of a caretaker. Upon a determination by the [council] COMMISSIONER that there exists operational deficiencies in a fee-for-service continuing care retirement community that show: 1. there exists in the facility a pattern or practice of habitual violation of the standards of health, safety or patient care established under federal or state law or regulations, the [council] COMMISSIONER shall take the actions prescribed by section forty-six hundred sixty- eight of this article, and, where the [council] COMMISSIONER deems it to be in the public interest, the [council may request the commissioner, and upon request of the council the] commissioner shall[,] petition a court of competent jurisdiction to appoint a caretaker as defined in section twenty-eight hundred one of this chapter. The petition, the proceedings, and the procedures for appointment of a caretaker shall be governed by the provisions of section forty-six hundred seventy of this article, and the power, duties and rights of a caretaker appointed pursuant to such section shall be the same as those authorized by subdi- vision four of such section; or 2. a condition or conditions in substantial violation of the standards for health, safety or patient care established under federal or state law or regulations. § 33. Subdivisions 1, 2 and 8 of section 4670 of the public health law, as added by chapter 519 of the laws of 2004, are amended to read as follows: 1. The [council] COMMISSIONER may, [if it determines] UPON A DETERMI- NATION that serious operational deficiencies exist or serious financial problems exist and such action is desirable, enter into an agreement with the operator or owners of a fee-for-service continuing care retire- ment community with respect to the appointment of a receiver to take charge of the community under conditions as found acceptable by both parties. Receivership commenced in accordance with the provisions of this subdivision shall terminate at such time as may be provided in the receivership agreement, or at such time as either party notifies the other in writing that it wishes to terminate such receivership. 2. [Upon request of the council, the] THE commissioner shall, at the time of revocation, suspension or temporary suspension of a certificate of authority, apply to the supreme court where the community is situated for an order directing the owner of the land and/or structure on or in which the community is located, to show cause why a receiver should not be appointed to take charge of the community. In those cases where the certificate of authority has been revoked, suspended or temporarily suspended, the supreme court shall appoint a receiver that, where reasonably possible, is a legal entity that holds a valid certificate of authority. Such application shall contain proof by affidavit that the facility has had its certificate of authority revoked, suspended or temporarily suspended. Such order to show cause shall be returnable not less than five days after service is completed and shall provide for personal service of a copy thereof and the papers on which it is based, on the owner or owners of the land and/or structures on or in which the community is located. If any such owner and manager cannot with due S. 5172 22 diligence be served personally within the county where the property is located and within the time fixed in such order, then service may be made on such person by posting a copy thereof in a conspicuous place within the community in question, and by sending a copy thereof by registered mail, return receipt requested, to such owner at the last address registered by him or her with the department or in the absence of such registration to the address set forth in the last recorded deed with respect to the facility. Service shall be deemed complete on filing proof of service thereof in the office of the county clerk, or the clerk of the city of New York, as the case may be. 8. Any other provision of this article notwithstanding, the [council] COMMISSIONER may, if it deems appropriate, grant to any community oper- ating or scheduled to operate under a receivership authorized by this section a certificate of authority, the duration of which shall be limited to the duration of the receivership. § 34. Paragraph g of subdivision 4 of section 4621 of the public health law, as added by chapter 406 of the laws of 1991, is amended to read as follows: g. If the funds in an escrow account under this section, and any interest thereon, are not released to the applicant within such time as provided by rules and regulations adopted by the [council] COMMISSIONER, then such funds shall be returned by the escrow agent to the person who had made the payments or the person's legal representative. § 35. Subdivision 1 of section 4623 of the public health law, as amended by chapter 659 of the laws of 1997, is amended to read as follows: 1. The [council] COMMISSIONER may approve an application for a certif- icate of authority and [the commissioner] may issue a certificate of authority for the establishment and operation of a continuing care retirement community under an arrangement which otherwise complies with the requirements of this article except that the costs of nursing facil- ity or home health care services are paid for in whole or in part by (a) long term care insurance obtained and paid for by the resident or by medical assistance payments in accordance with the partnership for long term care program pursuant to section three hundred sixty-seven-f of the social services law and section three thousand two hundred twenty-nine of the insurance law or (b) other group or individual long term care insurance approved by the superintendent and the council in connection with the application. The council, in consultation with the superinten- dent, shall provide for adequate disclosure to residents of their options, rights and obligations under such an arrangement, and shall establish standards for the remittance and collection of premiums and monthly care fees. § 36. The opening paragraph of subdivision 14 and subdivision 15 of section 4657 of the public health law, as added by chapter 519 of the laws of 2004, are amended to read as follows: In accordance with regulations promulgated by the [council] COMMIS- SIONER, the operator shall prepare a standard information sheet for each approved fee-for-service continuing care retirement community, which must be approved by the department, distributed with the community's marketing materials and attached to the initial disclosure statement prepared in accordance with this section. The standard information sheet shall be prepared in plain language and in twelve point type and shall include, but shall not be limited to the following information: 15. Any other information as may be required by regulations promulgat- ed by the [council] COMMISSIONER. S. 5172 23 § 37. The opening paragraph and paragraph d of subdivision 2 of section 4658 of the public health law, as added by chapter 519 of the laws of 2004, are amended to read as follows: The annual statement shall be in such form as the [council] COMMIS- SIONER prescribes and shall contain at least the following: d. Such other reasonable financial and other information as the [coun- cil] COMMISSIONER may require with respect to the operator or the commu- nity, or its directors, controlling persons, trustees, members, branch- es, subsidiaries or affiliates to determine the financial status of the community and the management capabilities of the operator. § 38. Subdivision 2 of section 4651 of the public health law, as added by chapter 519 of the laws of 2004, is amended to read as follows: 2. "Certificates" or "certificate of authority" shall mean an authori- zation in writing, approved [by the council] and issued by the commis- sioner, for an operator to operate a fee-for-service continuing care retirement community and to enter into fee-for-service continuing care contracts pertaining to such community. § 39. Section 4654 of the public health law, as amended by chapter 545 of the laws of 2004, is amended to read as follows: § 4654. Authorization of fee-for-service continuing care retirement communities. The commissioner[, upon approval of the continuing care retirement community council,] shall approve up to eight fee-for-service continuing care retirement communities to encourage affordable care options for middle income seniors, up to two of which may be operated by a for-profit entity. § 40. The opening paragraph of section 4659 of the public health law, as added by chapter 519 of the laws of 2004, is amended to read as follows: A fee-for-service continuing care contract shall contain all of the following information in no less than twelve point type and in plain language, in addition to any other terms or matter as may be required by regulations [adopted by the council and] issued by the commissioner: § 41. The opening paragraph of subdivision 5 of section 4655 of the public health law, as amended by chapter 545 of the laws of 2004, is amended to read as follows: If the [approvals] APPLICANT HAS SATISFIED THE CRITERIA required by subdivision four-a of this section have been obtained, the [council] COMMISSIONER 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] COMMISSIONER shall have determined that: § 42. Subdivisions 6 and 8 of section 4655 of the public health law, as added by chapter 519 of the laws of 2004, are amended to read as follows: 6. Any change in the legal entity operating the fee-for-service continuing care retirement community, or in a controlling person of the community shall require approval in the same manner as an original application; provided, however, that the [council] COMMISSIONER 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. [If the council approves the application, the] THE commissioner shall issue a certificate of authority to the applicant UPON APPROVAL OF THE APPLICATION. § 43. Section 4611 of the public health law, as added by chapter 689 of the laws of 1989, the opening paragraph of subdivision 1 as further S. 5172 24 amended by section 104 of part A of chapter 62 of the laws of 2011, is amended to read as follows: § 4611. Reserves and supporting assets. 1. An operator shall maintain reserve liabilities and supporting assets in an amount and for the purposes set forth in a regulation issued by the [superintendent of financial services] COMMISSIONER. Liquid assets must be maintained for the following reserve liabilities: a. Principal and interest payments and payments for taxes and insur- ance for up to twelve months; b. Total estimated operating costs for up to six months as set by the [superintendent] COMMISSIONER; c. Repairs and replacements for up to twelve months; and d. In addition, the amount of liquid assets must meet any cash flow requirements and conditions as set forth in a regulation. 2. The assets in support of reserve liabilities of subdivision one of this section shall meet quantitative and qualitative standards set forth in regulations issued by the [superintendent] COMMISSIONER. § 44. The public health law is amended by adding a new section 4625 to read as follows: § 4625. CONTINUING CARE RETIREMENT COMMUNITY WORKGROUP. 1. WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS SECTION, THE COMMISSIONER SHALL CONVENE A CONTINUING CARE RETIREMENT COMMUNITY WORKGROUP (HEREINAFTER REFERRED TO IN THIS SECTION AS THE "WORKGROUP"). THE WORKGROUP SHALL CONSIST OF, AT A MINIMUM, THE COMMISSIONER OR HIS OR HER DESIGNEE; REPRESENTATIVES OF HEALTH CARE PROVIDER ORGANIZATIONS; REPRESENTATIVES OF CONTINUING CARE RETIREMENT COMMUNITIES, AND REPRESENTATIVES WHO HAVE EXPERTISE IN THE CONTINUING CARE RETIREMENT COMMUNITY INDUSTRY. 2. WORKGROUP MEMBERS SHALL RECEIVE NO COMPENSATION FOR THEIR SERVICES AS MEMBERS OF THE WORKGROUP, BUT SHALL BE REIMBURSED FOR ACTUAL AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF THEIR DUTIES. 3. THE WORKGROUP SHALL: A. REVIEW EXISTING CONTINUING CARE RETIREMENT COMMUNITY AND FEE-FOR- SERVICE CONTINUING CARE RETIREMENT COMMUNITY MODELS IN THE STATE AND NATIONALLY; B. DEVELOP RECOMMENDATIONS ON CREATING COST-EFFECTIVE OPTIONS FOR FINANCING THE DEVELOPMENT OF ADDITIONAL CONTINUING CARE RETIREMENT COMMUNITIES AND FEE-FOR-SERVICE CONTINUING CARE RETIREMENT COMMUNITIES; AND C. SUBMIT A REPORT BY JANUARY FIRST, TWO THOUSAND NINETEEN TO THE COMMISSIONER, THE COUNCIL, THE TEMPORARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE CHAIR OF THE SENATE HEALTH COMMITTEE, AND THE CHAIR OF THE ASSEMBLY HEALTH COMMITTEE CONTAINING RECOMMENDATIONS FOR COST-EFFECTIVE OPTIONS TO ENCOURAGE THE GROWTH OF CONTINUING CARE RETIREMENT COMMUNITIES IN THE STATE OF NEW YORK. 4. ALL STATE DEPARTMENTS, COMMISSIONS, AGENCIES AND PUBLIC AUTHORITIES SHALL PROVIDE THE WORKGROUP WITH ANY REASONABLY REQUESTED ASSISTANCE OR ADVICE IN A TIMELY MANNER. § 45. This act shall take effect on the one hundred eightieth day after it shall have become a law, provided, however, that section 4625 of the public health law, as added by section forty-four of this act, shall expire and be deemed repealed December 31, 2020; provided, further, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized and directed to be made and completed on or before such effective date.
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