LBD03963-01-9
S. 1803 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
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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:
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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
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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 TWENTY IN RELATION TO THE APPROVAL OF COMPONENTS OF A CONTINU-
ING CARE RETIREMENT COMMUNITY, INCLUDING, BUT NOT LIMITED TO, A RESIDEN-
TIAL 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
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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. 1803 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. 1803 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. 1803 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. 1803 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. 1803 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 NINETEEN 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 NINETEEN 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. 1803 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 NINETEEN 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 NINETEEN 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. 1803 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. 1803 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. 1803 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. 1803 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. 1803 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. 1803 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. 1803 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] HE OR SHE deems appropriate, grant to any
community operating or scheduled to operate under a receivership author-
ized 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. 1803 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. 1803 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. 1803 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] HE OR SHE deems appropriate, grant to any
community operating or scheduled to operate under a receivership author-
ized 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. 1803 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. 1803 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 TWENTY-ONE 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, 2022; 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.
