* § 4655. Certificate of authority required; application and approval.
1. No person shall construct, expand, acquire, maintain, or operate a
fee-for-service continuing care retirement community, or enter into a
contract as an operator, or solicit the execution of any contract for
fee-for-service continuing care retirement community services to be
provided within the state or advertise itself or otherwise hold itself
as a "fee-for-service continuing care retirement community", without
obtaining a certificate of authority pursuant to this article; provided,
however, nothing in this subdivision shall prohibit a person, authorized
pursuant to section forty-six hundred seventy-four or forty-six hundred
seventy-five of this article, from entering into priority reservation
agreements, soliciting, collecting or receiving priority reservation
fees, or constructing and maintaining sales offices and model units with
respect to a proposed fee-for-service continuing care retirement
community. Such facility shall obtain approval to utilize residential
health care facility beds authorized under subdivision five of section
forty-six hundred four of this chapter and/or shall meet such other
conditions for acquisition of the residential health care facility beds
as the commissioner may determine.

2. In order to receive a certificate of authority to enter into
contracts with respect to a particular community, a person or persons,
hereinafter designated as the applicant, shall apply for a certificate
of authority on forms prescribed by the commissioner and, in addition,
shall submit the following:

a. a feasibility study, including a market analysis describing the
characteristics of the population to be served;

b. an initial disclosure statement as provided pursuant to section
forty-six hundred fifty-seven of this article;

c. a copy of the proposed forms of contracts to be entered into with
residents of the community;

d. complete details of any agreements with a licensed insurer,
including copies of proposed contracts, requiring the insurer to assume,
wholly or in part, the cost of medical or health related services to be
provided to a resident pursuant to a fee-for-service continuing care
contract;

e. a copy of each of the basic organizational documents and agreements
of the applicant of all participating entities;

f. a copy of the bylaws, rules and regulations, and internal governing
documents of the applicant;

g. architectural program and sketches for the community;

h. the proposed community plan, including the number of independent
living units, skilled nursing facility beds, adult care facility beds,
if any, and a description of other social and health services provided
by the community;

i. copies of such financial and personal disclosure information as
required by the council for the applicant and members of the board,
officers, and controlling persons of the proposed fee-for-service
continuing care retirement community, including:

(i) information necessary for the determination by the council of
character, competence and experience, where information adequate to make
such determinations is not otherwise available to the council,

(ii) a list of continuing care retirement communities, fee-for-service
continuing care retirement communities, adult care facilities and health
care facilities owned or operated by the applicant, by any controlling
persons of the applicant, or by entities with which the members of the
applicant's board are affiliated; the address of each such facility; and
the dates of ownership or operation of each such facility,

(iii) in the event that any such community or facility specified in
this subdivision, while under the control or operation of the applicant,
or any controlling person, has been subjected to a limitation,
withdrawal, or refusal to grant accreditation by a recognized
accreditation organization, because of failure to comply with standards
governing the conduct and operation of the facility, information that
describes the nature of the violation, the agency or body enforcing the
standard (including its name and address), the steps taken by the
facility to remedy the violation, and an indication of whether any
accreditation has since been restored, and

(iv) a statement as to whether the applicant or any of its officers,
directors, partners, managers or a principal, parent or subsidiary
corporation:

(A) has been convicted of a crime or pleaded nolo contendre to a
felony charge, or been held liable or enjoined in a civil action by
final judgement if the criminal or civil action involved fraud,
embezzlement, fraudulent conversion, or misappropriation of property,

(B) had a prior discharge in bankruptcy or was found insolvent in any
court action, or

(C) is or was subject to a currently effective injunctive or
restrictive order or federal or state administrative order relating to
business activity or health care as a result of an action brought by a
public agency or department, including, without limitation, actions
affecting a license to operate a hospital as defined by section
twenty-eight hundred one of this chapter, or a facility required to be
licensed or certified by the department. The statement shall set forth
the court or agency, date of conviction or judgement, the penalty
imposed or damages assessed, or the date, nature and issuer of the
order;

j. information which describes the populations to be served; and

k. any other information as may be required by regulations adopted
pursuant to this article.

3. Nothing in this article shall be construed to enlarge, diminish or
modify: a social services district's otherwise valid recovery under
section three hundred sixty-nine of the social services law, nor medical
assistance eligibility under title eleven of article five of the social
services law, nor applicable provisions of the estates, powers and
trusts law. Except as otherwise provided in this article, the activities
of fee-for-service continuing care retirement communities shall be
subject to any other law governing such activities including but not
limited to article twenty-eight of this chapter and article seven of the
social services law and regulations promulgated thereunder; provided,
however, that the provisions of paragraphs (d) and (e) of subdivision
four of section twenty-eight hundred one-a and section twenty-eight
hundred two of this chapter shall not apply, and provided that the
provisions of paragraph (a) of subdivision one and the provisions of
subdivision two of section four hundred sixty-one-b of the social
services law with respect to public need and the provisions of
subdivision one of section four hundred sixty-one-c of the social
services law shall not apply to residents who have been admitted in
accordance with a fee-for-service continuing care contract provided
that, upon admission to the adult care facility, such residents shall be
given a notice which shall include, at a minimum, information regarding
facility services, resident responsibilities, supplemental services,
resident rights and protections and circumstances that warrant transfer.
The number of residential health care facility beds available pursuant
to subdivision four of this section, without proof of public need
therefor, shall be reduced by the number of residential health care
demonstration facility beds that are approved pursuant to this article.

4. Up to three hundred fifty residential health care facility beds, as
authorized in article forty-six of this chapter, that may be approved as
components of fee-for-service continuing care retirement communities
shall not be considered by the department and the health systems
agencies in the determination of public need for residential health care
facility services.

4-a. No certificate of authority shall be issued unless an application
meeting the requirements of this section and all other requirements
established by law has been approved by:

a. the commissioner as to the financial feasibility of the facility
and the form and content of the proposed contracts to be entered into
with residents;

b. the commissioner as to those aspects of the application relating to
adult care facility beds, if any;

c. the public health council under section twenty-eight hundred one-a
of this chapter as to the establishment of a skilled nursing facility by
the applicant and as to such other facilities and services as may
require the public health council's approval of the application;
provided, however, that the recommendations of the state hospital review
and planning council and the health systems agency having geographical
jurisdiction of the area where the fee-for-service continuing care
retirement community is located shall not be required with respect to
the establishment of an on-site or affiliated residential health care
facility to serve residents as part of the fee-for-service continuing
care retirement community, for up to the total number of residential
health care facility beds provided for in subdivision four of this
section in communities statewide;

d. the commissioner under section twenty-eight hundred two of this
chapter; provided, however, that, the recommendations of the state
hospital review and planning council and the health systems agency
having geographical jurisdiction of the area where the fee-for-service
continuing care retirement community is located shall not be required
with respect to the construction of an on-site or affiliated residential
health care facility to serve residents as part of the fee-for-service
continuing care retirement community, for up to the total number of
residential health care facility beds provided for in subdivision four
of this section in communities statewide; and

e. the attorney general as to those aspects of the application
relating to a cooperative, condominium or other equity arrangement for
the independent living unit, if any.

4-b. The applicant shall agree to notify the commissioner at least
sixty days in advance of any change in the rates to be charged to a
resident by the operator for any entrance fee, monthly care fee and/or
any separate charges for the housing component including, but not
limited to, cooperative or condominium fees.

5. If the approvals required by subdivision four-a of this section
have been obtained, the council shall, by majority vote, either approve
or reject the application within sixty days of the date on which the
last such approval has been obtained. In order to approve the
application, the council shall have determined that:

a. the proposed fee-for-service continuing care retirement community
will meet a need and will fulfill the purposes of this article;

b. the applicant has satisfied the requirements of this article;

c. the applicant has demonstrated to the satisfaction of the council
that the applicant and members of the board, officers, and controlling
persons of the applicant, are of such character, experience, competence
and standing in the community as to give reasonable assurance of their
ability to conduct the affairs of the proposed fee-for-service
continuing care retirement community in the best interest of the
community and in the public interest, and to provide proper care to
residents. In the case of an applicant that is controlled, the council
must be satisfied that the controlling person has also acted in a manner
that is consistent with the public interest;

d. the applicant has otherwise demonstrated the capability to
organize, market, manage, promote and operate the community and can be
expected to meet its obligations in accordance with this article and in
accordance with its contracts with residents;

e. the applicant has demonstrated that the total number of beds for
the nursing facility component and the adult care facility bears a
reasonable relation to the number of independent living units proposed
for such community; and

f. with respect to communities which include a residential health care
facility which does not require establishment approval under section
twenty-eight hundred one-a of this chapter, the applicant has sufficient
financial resources and sources of future revenues for the operation of
the residential health care facility component.

6. Any change in the legal entity operating the fee-for-service
continuing care retirement community, or in a controlling person of the
community shall require approval in the same manner as an original
application; provided, however, that the council may waive any
requirement to provide information that is not relevant to such change
and provided, further, that the continued public need for the community
shall be presumed.

7. The operator shall designate and make knowledgeable personnel
available to prospective residents to answer questions about any
information contained in the disclosure statement or contract. The
disclosure statement and the contract shall each state on the cover or
top of the first page in bold twelve point print the following "This
matter involves a substantial financial investment and a legally binding
contract. In evaluating the disclosure statement and the contract prior
to any commitment, it is recommended that you consult with an attorney
and financial advisor of your choice, if you so elect, who can review
these documents with you."

8. If the council approves the application, the commissioner shall
issue a certificate of authority to the applicant.

* NB There are 2 § 4655's