Rpld 4603, amd Pub Health L, generally; amd 1119, Ins L
Promotes efficient and effective oversight of continuing care retirement communities; transfers certain powers and duties from the continuing care retirement community council to the commissioner of health; repeals certain provisions of law relating thereto.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7742A
SPONSOR: Paulin TITLE OF BILL:
An act to amend the public health law and the insurance law, in relation
to promoting efficient and effective oversight of continuing care
retirement communities; and to repeal certain provisions of such law
relating thereto
PURPOSE:
Article 46 of the Public Health Law (PHL) was enacted in 1989 to estab-
lish Continuing Care Retirement Communities (CCRCs) in New York. Later
amendments included Article 46A, which established fee-for service (FFS)
CCRCs, and a Life Care at Home program added in 2015. CCRCs provide a
full range of services including independent housing, assisted living
and nursing home care to residents in a campus setting as their needs
change. Since the early 1990s the number of CCRCs and similar communi-
ties has greatly increased across the nation, becoming one of the prima-
ry means by which seniors of varying income levels are able to fund and
provide for their ongoing health care, services, and housing needs.
However, since Article 46 was enacted here in New York, only 12 CCRCs
have become operational. In the 30 years since its enactment, Article 46
has become outdated and now represents a major impediment to the devel-
opment and expansion of CCRCs in New York. The regulatory framework and
policies stemming from Articles 46 and 46-A create an environment in
which it is:
(1) prohibitively expensive and administratively burdensome to consider
starting a new CCRC or expanding a current community; and
(2) extremely difficult for current communities to operate efficiently
and make their services more affordable to residents. Statutory and
regulatory reforms are needed to modernize the Article 46 and 46-A
provisions and eliminate barriers to the development, expansion, and
efficient operation of CCRCs in New York while preserving vitally impor-
tant resident protections. A first step in modernizing the governance of
CCRCs is to consolidate authority for establishment and operational
oversight of CCRCs into the Department of Health.
SUMMARY OF PROVISIONS:
Sections one and two of the bill amend sections 4602 and 4603 of the PHL
to assign an advisory role to the Continuing Care Retirement Community
Council and delegate the other duties of the CCRC Council to the Commis-
sioner of Health. This includes granting certificates of authority, with
final approval for nursing home beds remaining with the Public Health
and Health Planning Council (PHHPC), and oversight of operating communi-
ties.
Section three of the bill amends section 4604 of the PHL to clarify that
the Commissioner of Health is responsible for conducting reviews of
various aspects of an application for a certificate of authority to
operate a CCRC, in concert with the PHHPC (for nursing home beds); the
attorney general (for 'selected forms of independent living unit owner-
ship); and any designee(s) of the Commissioner. Sections four, five and
six of the bill make conforming amendments to sections 4604 and 4604-a
of the PHL related to the transfer of CCRC Council authority to the
Commissioner of Health.
Sections seven and eight of the bill make conforming amendments to
sections 4605-a and 4605-b of the PHL related to the transfer of
approval authority for continuing care at home contracts to the Commis-
sioner of Health.
Sections nine and ten of the bill make conforming amendments to sections
4607 (CCRC) and 4658 (FFS CCRC) of the PHL related to reports that would
need to be made to the Commissioner of Health.
Section eleven of the bill amends section 4608 of the PHL to transfer
the approval of changes in contacts, fees and charges by operating CCRCs
from the Superintendent of Financial Services to the Commissioner of
Health.
Section twelve of the bill amends section 4614 of the PHL to eliminate
the responsibility of the Superintendent of Financial Services to
participate in on-site examinations of CCRCs conducted by the Commis-
sioner of Health at least once every three years.
Section thirteen amends section 4667 of the PHL to assign responsibility
for the triennial audit of FFS CCRCs solely to the Commissioner of
Health.
Sections thirteen through nineteen of the bill amend sections 4615, 4616
and 4617 (CCRC) and sections 4668, 4669 and 4670 (FFS CCRC) of the PHL
to authorize the Commissioner of Health, with the consent of the PHHPC,
to take actions related to revocation, suspension or annulment of a
certificate of authority; appointment of a caretaker; and/or receiver-
ship of a CCRC.
Sections nineteen through twenty-seven of the bill make conforming
amendments to sections 4621 and 4623 (CCRC) and sections 4651, 4654,
4655,4657, 4658 and 4659 (FFS CCRC) of the PHL to substitute the Commis-
sioner of Health for the CCRC Council related to promulgation of regu-
lations, approvals of certificates of authority, and content of various
disclosures.
Section twenty-eight of the bill amends section 4611 of the PHL to
authorize the Commissioner of Health to establish reserve and asset
levels for CCRCs.
Section twenty-nine of the bill amends section 1119 of the insurance law
to remove requirements that CCRCs comply with rules of the Department of
Financial Service to reflect the consolidation of authority in the
Department of Health.
Sections thirty through thirty-three of the bill allow the Commissioner
of Health to increase the amount of the priority reservation fee that
CCRCs can accept from prospective residents.
Section thirty-four of the bill requires the Commission of Health and
the Superintendent of Financial Services to make recommendations regard-
ing the resources the Department of health will require to assume
responsibilities currently performed by the Department of Financial
Services.
Section thirty-five of the bill clarifies that the Commissioner of
Health may contract for actuarial services currently performed by the
Department of Financial Services.
Section thirty-six of the bill establishes an immediate effective date.
JUSTIFICATION:
Articles 46 and 46-A of the PHL, and the regulations and policies that
emanate from these laws, make the establishment and operation of CCRCs
unnecessarily complex and expensive in New York as compared to other
states. Two State agencies, the Department of Health (DOH) and the
Department of Financial Services (DFS), review applications for
entrance-fee CCRC models, while three State agencies (DOH, DFS and the
Office of the Attorney General) review applications for equity model
CCRCs. The resulting review process is protracted, exceedingly complex,
duplicative and expensive. Ongoing oversight of CCRC community oper-
ations, marketing practices, contracting, fees and investments is
burdensome, time-consuming and adds significantly to the cost of operat-
ing these communities. This, in turn, increases fees to residents.
Those provisions of Article 46 and Article 46-A that mandate multiple
agency involvement should be revised to consolidate oversight in DOH and
make it clear that other agencies are involved in a limited consultative
role, as with other health care models such as managed long term care
plans. Although this may have been the original intent of the statute,
actual practice has evolved over the years such that there are competing
interests among agencies in terms of authority to regulate CCRCs.
Because they offer multiple levels of care, CCRCs are subjected to
repeat and duplicative State survey inspections. These multiple surveys
are costly to both the State and the community; they are disruptive to
operations and residents; and findings are often contradictory between
survey teams.
When the three-agency construct was created thirty years ago, DOH lacked
any excellence with health insurance so the Department of Insurance (now
DFS) was needed for their insurance expertise. Since that time, DOH
assumed .responsibility for the Medicaid program and the Child Health
Plus program, the Essential Health Plan and the New York State of Health
(the State's Health Insurance Marketplace)were created .under DOH over-
sight. DOH now oversees the health coverage for more than 7 million New
Yorkers.
The CCRC Council was originally conceived as the coordinating body
between the three agencies. It is Seeded with the statutory responsibil-
ity for providing final approval for the establishment of and opera-
tional changes to CCRCs. This construct has not proven to be efficacious
and is inconsistent with the goal of consolidating authority into one
agency. In addition, in recent years the Council has experienced diffi-
culty achieving a quorum, which has delayed approvals. Delays can lead
to increases in construction and financing costs.
Both nationally and here in New York, CCRCs have proven themselves to be
financially stable and sound investments for residents and surrounding
communities. Contrary to costing the State money, CCRCs are a proven
economic driver for local communities. They are a sound investment that
pays dividends in managing the care and housing needs of seniors;
provide an alternative to estate planning to qualify for Medicaid; and
enable seniors to remain near family members and friends. The CCRC model
is not a new Medicaid program that will cost the State money. Quite the
opposite, seniors who invest in their care and housing needs through a
CCRC do not divest their assets to qualify for Medicaid-funded services.
LEGISLATIVE HISTORY:
2019: A.8193 - vetoed
2017-2018: A.6450 - referred to Health
2016: A.10657 - referred to Health
FISCAL IMPLICATIONS:
Positive to the State. The economic activity associated with further
*CCRC development and operation would be expected to generate additional
tax revenues to the State. Reduced reliance on Medicaid associated with
CCRC residency would save State and federal dollars.
EFFECTIVE DATE:
Immediately, except that the consolidation of authority into DOH would
not occur until June 1, 2024, and further provided that the Commissioner
of Health may make regulations beforehand that would become effective at
the same time as the law.
STATE OF NEW YORK
________________________________________________________________________
7742--A
2023-2024 Regular Sessions
IN ASSEMBLY
June 6, 2023
___________
Introduced by M. of A. PAULIN, THIELE, SEAWRIGHT -- read once and
referred to the Committee on Health -- recommitted to the Committee on
Health in accordance with Assembly Rule 3, sec. 2 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the public health law and the insurance law, in relation
to promoting efficient and effective oversight of continuing care
retirement communities; and to repeal certain provisions of such law
relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 4602 of the public health law, as added by chapter
2 689 of the laws of 1989, the section heading and subdivisions 1 and 2 as
3 amended by chapter 659 of the laws of 1997, the opening paragraph of
4 subdivision 1 as amended by section 81 of part A of chapter 62 of the
5 laws of 2011, the opening paragraph of subdivision 2 as amended by chap-
6 ter 549 of the laws of 2014, subdivision 3 as amended by chapter 155 of
7 the laws of 2012, is amended to read as follows:
8 § 4602. [Continuing care retirement community council] Commissioner;
9 powers and duties. [1. The continuing care retirement community council
10 is hereby established, to consist of the following, or their designees:
11 the attorney general; the commissioner; the director of the office for
12 the aging; and eight public members appointed by the governor with the
13 advice and consent of the senate. Such public members shall be represen-
14 tative of the public, and have a demonstrated expertise or interest in
15 continuing care retirement communities; provided that no more than one
16 such member shall be a sponsor, owner, operator, manager, member of a
17 board of directors, or shareholder of a continuing care retirement
18 community. At least two public members shall be residents of a continu-
19 ing care retirement community. At least one of the public members shall
20 be a representative of an organization with demonstrated experience in
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11682-02-4
A. 7742--A 2
1 representing the interests of senior citizens. The public members of the
2 council shall have fixed terms of four years. The council shall be
3 chaired by the commissioner or his or her designee.
4 Members of such council shall serve without compensation for their
5 services as members of the council, except that each of them may be
6 allowed the necessary and actual expenses which he shall incur in the
7 performance of his duties under this article.
8 2. The council shall meet as often as may be deemed necessary to
9 fulfill its responsibilities.] The [council] commissioner shall have the
10 following powers and duties:
11 a. to receive applications from potential operators of continuing care
12 retirement communities and to distribute such applications for review to
13 the participating agencies;
14 b. to develop uniform forms for applications for certificates of
15 authority, to review the status of such applications, and to coordinate
16 the review of such applications in order to minimize duplication or
17 delay;
18 c. to provide information to entities wishing to establish continuing
19 care retirement communities and to persons interested in becoming resi-
20 dents of such communities, to the extent appropriate, with concerns
21 relating to the operation of such facilities;
22 d. to issue certificates of authority to approved applicants;
23 e. to approve or reject applications to obtain a certificate of
24 authority for the establishment and operation of a continuing care
25 retirement community. In reviewing applications, the [council] commis-
26 sioner shall consider the extent to which the applications reflect vari-
27 ous sponsorships, organizational structures, geographic dispersion, and
28 the public benefit. In determining the public benefit of a community
29 requiring construction of a total nursing facility component greater
30 than or equal to ninety beds, the [council] commissioner shall obtain
31 and consider the recommendation of the [state hospital review] public
32 health and health planning council with regard to the effect of the
33 construction of the community's nursing facility beds upon existing
34 facilities in the same geographic area;
35 [b.] f. to require the reporting of such facts and information as the
36 [council] commissioner may deem necessary to enforce the provisions of
37 this article;
38 [c.] g. to coordinate the oversight of operating communities and to
39 assign review and regulatory responsibility for particular aspects of
40 such communities to the appropriate agencies, consistent with their
41 legal authority, to assure consistent state supervision without dupli-
42 cation of inspection or regulatory review;
43 [d.] h. to make such recommendations to the governor and the legisla-
44 ture as may be necessary to encourage or further regulate the develop-
45 ment of continuing care retirement communities;
46 [e.] i. to establish and charge equitable and reasonable annual charg-
47 es for operators, not to exceed fifty dollars per approved living unit,
48 to subsidize, in part, expenditures incurred in reviewing applications
49 for certificates of authority and in inspecting, regulating, supervising
50 and auditing continuing care retirement communities;
51 [f. to review reports from the participating agencies regarding the
52 operations and financial management of approved communities, including
53 any reports regarding the financial condition of any community that may
54 be in need of close supervision and any reports of deficiencies in the
55 provision of health or social services to residents of any community;
A. 7742--A 3
1 g.] j. to adopt rules and regulations and amendments thereto to effec-
2 tuate the provisions of this article;
3 [h.] k. to revoke, suspend, limit, or annul a certificate of authority
4 under conditions set forth in section forty-six hundred fifteen of this
5 article, including when such action is taken at the specific request of
6 any participating council agency. [When action has been taken by the
7 commissioner pursuant to subdivision seven of section forty-six hundred
8 three of this article, the council shall meet as soon as reasonably
9 possible to approve or disapprove the action of the commissioner and
10 shall take such further action as may be appropriate;
11 i. to develop guidelines for applications for certificates of authori-
12 ty;
13 j.] l. to carry out any other responsibilities entrusted to the
14 commissioner pursuant to this chapter that may be necessary with regard
15 to the health care activities of continuing care retirement communities;
16 m. to make available to all prospective operators all pertinent regu-
17 lations regarding health and insurance necessary to comply with this
18 article;
19 n. to [make a final determination regarding an application] approve or
20 reject applications for authorization by prospective continuing care
21 retirement community applicants, entities that have filed an application
22 for a certificate of authority and operators, to enter into cancellable
23 priority reservation agreements [where the commissioner has proposed to
24 reject such application] and to collect refundable priority reservation
25 fees from prospective residents;
26 [k.] o. to require the reporting of such facts and information as the
27 [council] commissioner may deem necessary to determine whether charac-
28 teristics of residential health care demonstration facilities such as
29 comprehensive systems of residential and support services for the elder-
30 ly may be successfully incorporated into existing or approved continuing
31 care retirement communities;
32 [l.] p. to review and approve or reject applications by continuing
33 care retirement community operators to use entrance fees to assist the
34 operator in financing the construction or purchase of a proposed contin-
35 uing care retirement community in accordance with paragraph b of subdi-
36 vision six of section forty-six hundred ten of this article; and
37 [m.] q. to review and approve or reject any proposed financing by
38 industrial development agencies of continuing care retirement communi-
39 ties pursuant to article eighteen-A of the general municipal law as
40 authorized by section forty-six hundred four-a of this article.
41 [3. The council shall establish guidelines under which the commission-
42 er is authorized to approve or reject any proposed refinancing, if the
43 council has already approved an application pursuant to paragraph a of
44 subdivision two of this section.]
45 § 2. Section 4603 of the public health law is REPEALED and a new
46 section 4603 is added to read as follows:
47 § 4603. Continuing care retirement community council; powers and
48 duties. 1. The continuing care retirement community council is hereby
49 established, to consist of the following, or their designees: the attor-
50 ney general; the commissioner; the director of the office for the aging;
51 and eight public members appointed by the governor with the advice and
52 consent of the senate. Such public members shall be representative of
53 the public, and have a demonstrated expertise or interest in continuing
54 care retirement communities; provided that no more than one such member
55 shall be a sponsor, owner, operator, manager, member of a board of
56 directors, or shareholder of a continuing care retirement community. At
A. 7742--A 4
1 least two public members shall be residents of a continuing care retire-
2 ment community. At least one of the public members shall be a represen-
3 tative of an organization with demonstrated experience in representing
4 the interests of senior citizens. The public members of the council
5 shall have fixed terms of four years. The council shall be chaired by
6 the commissioner or the designee of such commissioner.
7 Members of such council shall serve without compensation for their
8 services as members of the council, except that each of them may be
9 allowed the necessary and actual expenses which such member shall incur
10 in the performance of their duties under this article.
11 2. The council shall meet as often as may be deemed necessary to
12 fulfill its responsibilities. The council shall have the following
13 powers and duties:
14 a. to assist the commissioner on policy matters related to the estab-
15 lishment and operation of continuing care retirement communities;
16 b. to assist the commissioner in the development of the state's over-
17 all policy regarding continuing care retirement communities and cause
18 studies and research to be conducted as it may deem advisable and neces-
19 sary; and
20 c. to make such recommendations to the governor and the legislature as
21 may be necessary to encourage or further regulate the development of
22 continuing care retirement communities.
23 § 3. Subdivision 4 of section 4604 of the public health law, as
24 amended by chapter 659 of the laws of 1997, subparagraphs (i), (ii) and
25 (iii) of paragraph a as further amended by section 104 of part A of
26 chapter 62 of the laws of 2011, paragraphs b and d as amended by chapter
27 549 of the laws of 2014, and paragraph c as amended by chapter 7 of the
28 laws of 2015, is amended to read as follows:
29 4. No certificate of authority shall be issued unless the commissioner
30 has approved an application meeting the requirements of this section and
31 all other requirements established by law [has been approved by] includ-
32 ing:
33 a. [(i)] the [superintendent of financial services as to the] actuari-
34 al principles involved, the financial feasibility of the facility, the
35 form and content of the proposed contracts to be entered into with resi-
36 dents and insurance contracts between an operator and an insurer requir-
37 ing the insurer to assume, wholly or in part, the cost of medical or
38 health related services to be provided to a resident, provided that the
39 review may be conducted by the commissioner or the designee of such
40 commissioner, including any necessary independent actuarial review;
41 [(ii) the superintendent of financial services as to] b. the rates and
42 rating methodology, if any, to be used by the operator to determine any
43 entrance fee, monthly care fee and/or any separate charges for the hous-
44 ing component of the continuing care contract including but not limited
45 to a cooperative or condominium fee charged to the resident as proposed
46 in said operator's application for certificate of authority. Subsequent
47 increases in any entrance or monthly care fee in excess of fees calcu-
48 lated pursuant to the approved rating methodology shall require approval
49 of the [superintendent] commissioner. The term "rating methodology" as
50 used herein shall incorporate a combination of variables including but
51 not limited to a pricing structure for comparable services, projected
52 operating and health care costs and the applicable inflationary impact
53 thereon, projected income and occupancy rates and the refundability
54 component of the continuing care retirement contract[.
55 (iii) the superintendent of financial services as to];
A. 7742--A 5
1 c. any monthly care fee charged to a resident which may be increased
2 or decreased subject to approval by the [superintendent of financial
3 services] commissioner, provided, that monthly care fees may be
4 increased or decreased without specific approval as long as such
5 increase or decrease does not exceed a relevant cost index or indices
6 which reflect all components of continuing care including the costs
7 associated with provision of health care as determined and promulgated
8 at least annually by the [superintendent] commissioner or the designee
9 of such commissioner, including any necessary independent actuarial
10 review, and provided further that the [superintendent] commissioner is
11 notified of any such increase or decrease prior to its taking effect[.
12 (iv) An];
13 d. the requirement that an individual resident's monthly care fee
14 shall not be modified because of the increased need for services of that
15 resident;
16 [b. the commissioner as to those] e. aspects of the application relat-
17 ing to adult care facility beds, if any;
18 [c.] f. review by the public health and health planning council as to
19 the establishment of a skilled nursing facility by the applicant and as
20 to such other facilities and services as may require the public health
21 and health planning council's approval of the application; provided,
22 however, that the recommendations of the health systems agency having
23 geographical jurisdiction of the area where the continuing care retire-
24 ment community is located shall not be required with respect to the
25 establishment of an on-site or affiliated residential health care facil-
26 ity to serve residents as part of the continuing care retirement commu-
27 nity, for up to the total number of residential health care facility
28 beds provided for in subdivision five of this section in communities
29 statewide;
30 [d. the commissioner under section twenty-eight hundred two of this
31 chapter;] provided, [however] further, that, the recommendations of the
32 public health and health planning council and the health systems agency
33 having geographical jurisdiction of the area where the continuing care
34 retirement community is located shall not be required with respect to
35 the construction of an on-site or affiliated residential health care
36 facility to serve residents as part of the continuing care retirement
37 community, for up to the total number of residential health care facili-
38 ty beds provided for in subdivision five of this section in communities
39 statewide; and
40 [e. the] g. upon consultation with the attorney general, as to those
41 aspects of the application relating to a cooperative, condominium or
42 other equity arrangement for the independent living unit, if any.
43 § 4. The opening paragraph of subdivision 6 of section 4604 of the
44 public health law, as amended by chapter 659 of the laws of 1997, is
45 amended to read as follows:
46 If the [approvals] applicant has satisfied the criteria required by
47 subdivision four of this section [have been obtained], the [council]
48 commissioner shall[, by majority vote,] either approve or reject the
49 application [within sixty days of the date on which the last such
50 approval has been obtained]. In order to approve the application, the
51 [council] commissioner shall have determined that:
52 § 5. Subdivisions 7 and 9 of section 4604 of the public health law,
53 subdivision 7 as amended by chapter 659 of the laws of 1997 and subdivi-
54 sion 9 as added by chapter 689 of the laws of 1989, are amended to read
55 as follows:
A. 7742--A 6
1 7. Any change in the legal entity operating the continuing care
2 retirement community, or in a controlling person of the community shall
3 require approval in the same manner as an original application;
4 provided, however, that the [council] commissioner may waive any
5 requirement to provide information that is not relevant to such change
6 and provided, further, that the continued public need for the community
7 shall be presumed.
8 9. [If the council approves the application, the] The commissioner
9 shall issue the certificate of authority to the applicant upon approval
10 of the application.
11 § 6. Section 4604-a of the public health law, as amended by chapter
12 659 of the laws of 1997, paragraph g of subdivision 2 as amended by
13 chapter 549 of the laws of 2014, is amended to read as follows:
14 § 4604-a. [Council] Commissioner approval required for industrial
15 development agency financing in connection with continuing care retire-
16 ment communities. 1. No person seeking financing in connection with a
17 continuing care retirement community through an industrial development
18 agency shall undertake such financing without the prior approval of the
19 [council] commissioner. Upon approving a proposed financing pursuant to
20 this section, the [council] commissioner shall issue a certificate of
21 authorization to the applicant.
22 2. Prior to approving such financing, the [council] commissioner shall
23 find that:
24 a. The operator has (i) executed contracts for at least seventy
25 percent of all living units and has on deposit at least ten percent of
26 the entrance fees or purchase price for such units; or (ii) executed
27 contracts for at least sixty percent of all living units and has on
28 deposit at least twenty-five percent of the entrance fees or purchase
29 price for such units.
30 b. The operator has demonstrated capability to comply fully with the
31 requirements for a certificate of authority and has obtained a contin-
32 gent certificate of authority pursuant to section forty-six hundred four
33 of this article and the operator has agreed to meet the requirements of
34 article eighteen-A of the general municipal law.
35 c. The applicant is a not-for-profit corporation as defined in section
36 one hundred two of the not-for-profit corporation law that is (i) eligi-
37 ble for tax-exempt financing under this section and (ii) is exempt from
38 taxation pursuant to section 501(c)(3) of the federal internal revenue
39 code, and either has (i) an equity position in the community equivalent
40 to no less than fifteen percent of the amount to be financed in the
41 aggregate; or (ii) covenants (A) to meet a ratio of cash and investments
42 to outstanding debt (reserve ratio) of no less than twenty-five percent
43 commencing at the end of the first quarter after twenty-four months from
44 the receipt of a certificate of occupancy for the facility, and (B) to
45 maintain that reserve ratio, as tested quarterly based upon the facili-
46 ty's interim financial statements and annually based upon audited finan-
47 cial statements, until debt reduction equal to twenty-five percent of
48 total indebtedness is accomplished; and (c) to reduce total debt by
49 twenty-five percent of the total indebtedness at the time the certif-
50 icate of occupancy is received by no later than five years after the
51 receipt of the certificate of occupancy.
52 d. The operator has submitted in connection with the proposed financ-
53 ing a financial feasibility study, including a financial forecast and
54 market study prepared by an independent firm nationally recognized for
55 continuing care retirement community feasibility studies, demonstrating
56 to the satisfaction of the [council] commissioner the financial sound-
A. 7742--A 7
1 ness of the financing. In addition, the operator has submitted an analy-
2 sis of economic costs and benefits, including job creation and
3 retention, the estimated value of tax exemptions provided, the project's
4 impact on local businesses and the availability and comparative cost of
5 alternative financing sources. Such analysis shall be prepared by an
6 independent entity.
7 e. The operator will establish and maintain a fully funded debt
8 service reserve equal to the sum of maximum annual debt service (inter-
9 est plus annual scheduled principal payments, not including balloon
10 maturities, if any) on bonds authorized thereby having a maturity of ten
11 years or less, plus the maximum annual debt service on bonds authorized
12 thereby having a maturity of greater than ten years, provided, however,
13 that in the case of tax-exempt bond issues, such debt service reserve
14 shall not exceed the maximum amount permitted by federal tax law.
15 f. The operator will provide for such remedies or limitations of reme-
16 dies of bondholders as may be required by or consistent with the
17 provisions of this article and any regulations in existence at the time
18 of the issuance promulgated thereunder.
19 g. Unless all residents or continuing care at home contract holders
20 have life care contracts, the operator has adequately made the assur-
21 ances required by subdivision two of section forty-six hundred twenty-
22 four of this article and has agreed to fund the liability in the event
23 that such resident's or contract holder's assets are insufficient to pay
24 for nursing facility services for a one year period.
25 3. In addition, an operator which is subject to the provisions of this
26 section shall:
27 a. provide the [council or its designee] commissioner with notice of
28 any monetary default or covenant default in connection with such financ-
29 ing and shall further notify the [council or its designee] commissioner
30 of any withdrawal from the debt service reserve fund established in
31 connection with such financing;
32 b. respond in writing to the operational recommendations of the [coun-
33 cil or its designee] commissioner with respect to protecting the inter-
34 ests of continuing care retirement community residents in the event of
35 any monetary default or covenant default provided for in connection with
36 such financing;
37 c. provide adequate security for the repayment of the bonds issued,
38 including the granting of liens on real and personal property and the
39 pledge of project revenues; the maintenance of minimum debt service
40 coverage and other financial ratios as shall be required in regulations
41 in existence at the time of issuance by the [council] commissioner; and
42 restrictions on other debt and expenditures; and
43 d. undertake to maintain the financial feasibility of the facility,
44 including the retention of an independent consultant to recommend and
45 help implement remedial action.
46 4. The [council] commissioner may request, and shall receive, the
47 technical assistance of any state agency or state public authority in
48 performing its functions under this article.
49 § 7. Section 4605-a of the public health law, as added by chapter 7 of
50 the laws of 2015, is amended to read as follows:
51 § 4605-a. Certificate of authority; authority to offer continuing care
52 at home contracts. A continuing care retirement community may offer
53 continuing care at home contracts upon approval by the [council] commis-
54 sioner to amend the continuing care retirement community's certificate
55 of authority. In order to qualify for an amendment to its certificate of
A. 7742--A 8
1 authority, the continuing care retirement community shall submit to the
2 commissioner the following:
3 1. a business plan to the commissioner [and superintendent] that
4 includes the following:
5 (a) a description of the continuing care at home services that will be
6 provided, the market that will be served by the continuing care at home
7 contracts, and the fees to be charged to prospective continuing care at
8 home contract holders;
9 (b) a copy of the proposed continuing care at home contract; and
10 (c) an actuarial study prepared by an independent actuary in accord-
11 ance with standards adopted by the American Academy of Actuaries demon-
12 strating the impact that the continuing care at home contracts will have
13 on the overall operations of the continuing care retirement community
14 and further demonstrating that the addition of continuing care at home
15 contracts will not jeopardize the financial solvency of the continuing
16 care retirement community.
17 2. a market feasibility study demonstrating to the commissioner [and
18 superintendent] sufficient consumer interest in continuing care at home
19 contracts and further demonstrating that the addition of continuing care
20 at home contracts will not have an adverse impact on the provision of
21 services to continuing care retirement contract holders.
22 3. materials that meet all requirements established by the [New York
23 state] department [of financial services].
24 4. [A] a copy of the notification sent to continuing care retirement
25 contract holders describing the anticipated impact of the addition of
26 continuing care at home contracts on continuing care retirement communi-
27 ty resources and proof that such notification has been distributed to
28 all continuing care retirement contract holders.
29 § 8. Section 4605-b of the public health law, as added by chapter 7 of
30 the laws of 2015, is amended to read as follows:
31 § 4605-b. Certificate of authority; limitation on continuing care at
32 home contracts. The number of continuing care at home contracts
33 approved on a certificate of authority shall be limited to:
34 1. The number of approved living units on the continuing care retire-
35 ment community's premises that are intended for ILU residents, except
36 that the [council] commissioner may approve additional contracts upon a
37 submission [to the commissioner] by an operator consistent with the
38 provisions set forth in section forty-six hundred five-a of this arti-
39 cle;
40 2. The demonstrated number of continuing care at home contract holders
41 that can be supported in the existing or approved future capacity of the
42 adult care facility and skilled nursing facility consistent with the
43 provisions set forth in section forty-six hundred five-a of this arti-
44 cle; and
45 3. Conditions set forth by the [New York state] department [of finan-
46 cial services], based upon the [superintendent] commissioner's assess-
47 ment of the following:
48 (a) the overall financial impact on the community; and
49 (b) the submitted materials set forth in section forty-six hundred
50 five-a of this article.
51 § 9. Section 4607 of the public health law, as added by chapter 689 of
52 the laws of 1989, paragraph d of subdivision 2 as amended by chapter 659
53 of the laws of 1997, is amended to read as follows:
54 § 4607. Annual statement. 1. Within four months of close of the oper-
55 ator's fiscal year, unless an extension of time to file has been grant-
56 ed, the operator shall file an annual statement with the commissioner
A. 7742--A 9
1 [and superintendent] showing the condition as of the last day of the
2 preceding calendar or fiscal year. If the commissioner [and superinten-
3 dent do] does not receive the annual statement within four months of the
4 end of the operator's fiscal year or have not granted an extension of
5 time to file, the [council] commissioner may charge a late fee.
6 2. The annual statement shall be in such form as the [council] commis-
7 sioner prescribes and shall contain at least the following:
8 a. Any change in status with respect to the information required to be
9 submitted pursuant to section forty-six hundred four of this article;
10 b. Financial statements audited by an independent certified public
11 accountant, which shall contain, for two or more periods if the communi-
12 ty has been in existence that long, the following:
13 (i) an accountant's opinion and, in accordance with generally accepted
14 accounting principles:
15 (A) a balance sheet,
16 (B) a statement of income and expenses,
17 (C) a statement of equity or fund balances,
18 (D) a statement of changes in financial position,
19 (ii) notes to the financial statements considered customary or neces-
20 sary to ensure full disclosure of the financial statements, financial
21 condition, and operation;
22 c. A detailed listing of the assets maintained for the reserves;
23 d. A copy of the most recent actuarial review of the community,
24 including such information as may be required by the [superintendent]
25 commissioner including an opinion of a qualified consulting actuary, as
26 to the current and projected soundness of the community, provided howev-
27 er that a new actuarial review must be submitted triennially; and
28 e. Such other reasonable financial and other information as the [coun-
29 cil] commissioner may require with respect to the operator or the commu-
30 nity, or its directors, controlling persons, trustees, members, branch-
31 es, subsidiaries or affiliates to determine the financial status of the
32 community and the management capabilities of the operator.
33 3. Sixty days before commencement of each calendar or fiscal year or
34 official opening date, whichever is applicable, each operator shall file
35 with the commissioner [and superintendent] a computation of the annual
36 long-term debt service and a projected annual revenue and expense summa-
37 ry for the next ten years.
38 § 10. Section 4658 of the public health law, as added by chapter 519
39 of the laws of 2004, is amended to read as follows:
40 § 4658. Annual statement. 1. Within four months of close of an opera-
41 tor's fiscal year, unless an extension of time to file has been granted,
42 the operator shall file an annual statement with the commissioner show-
43 ing the condition as of the last day of the preceding calendar or fiscal
44 year. If the commissioner does not receive the annual statement within
45 four months of the end of the operator's fiscal year or has not granted
46 an extension of time to file, the council may charge a late fee.
47 2. The annual statement shall be in such form as the [council] commis-
48 sioner prescribes and shall contain at least the following:
49 a. Any change in status with respect to the information required to be
50 submitted pursuant to section forty-six hundred fifty-seven of this
51 article;
52 b. Financial statements audited by an independent certified public
53 accountant, which shall contain, for two or more periods if the communi-
54 ty has been in existence that long, the following:
A. 7742--A 10
1 (i) notes to the financial statements considered customary or neces-
2 sary to ensure full disclosure of the financial statements, financial
3 condition, and operation; and
4 (ii) an accountant's opinion and, in accordance with generally
5 accepted accounting principles: (A) a balance sheet, (B) a statement of
6 income and expenses, (C) a statement of equity or fund balances, and (D)
7 a statement of changes in financial position;
8 c. A detailed listing of the assets maintained for the reserves; and
9 d. Such other reasonable financial and other information as the [coun-
10 cil] commissioner may require with respect to the operator or the commu-
11 nity, or its directors, controlling persons, trustees, members, branch-
12 es, subsidiaries or affiliates to determine the financial status of the
13 community and the management capabilities of the operator.
14 3. Sixty days before commencement of each calendar or fiscal year or
15 official opening date, whichever is applicable, each operator shall file
16 with the commissioner a computation of the annual long-term debt service
17 and a projected annual revenue and expense summary for the next ten
18 years.
19 § 11. Subdivision 16 of section 4608 of the public health law, as
20 amended by chapter 7 of the laws of 2015, is amended to read as follows:
21 16. A statement that any amendment to the contract and any change in
22 fees or charges, other than those within the guidelines of an approved
23 rating system, must be approved by the [superintendent of financial
24 services] commissioner;
25 § 12. Subdivisions 1 and 2 of section 4614 of the public health law,
26 as amended by chapter 7 of the laws of 2015, are amended to read as
27 follows:
28 1. The commissioner, or designee[; and the superintendent, or desig-
29 nee;] may at any time, and shall at least once every three years, visit
30 each community and examine the business of any applicant for a certif-
31 icate of authority and any operator engaged in the execution of continu-
32 ing care retirement contracts or continuing care at home contracts or
33 engaged in the performance of obligations under such contracts. Routine
34 examinations may be conducted by having documents designated by and
35 submitted to such [commissioners or superintendent] commissioner, which
36 shall include financial documents and records conforming to commonly
37 accepted accounting principles and practices. The final written report
38 of each such examination conducted by such [commissioners or superinten-
39 dent] commissioner shall be filed with the commissioner and, when so
40 filed, shall constitute a public record. A copy of each report shall be
41 provided to members of the continuing care retirement community council.
42 Any operator being examined shall, upon request, give reasonable and
43 timely access to all of its records. The representative or examiner
44 designated by the [commissioners or superintendent, respectively,]
45 commissioner may, at any time, examine the records and affairs and
46 inspect the community's facilities, whether in connection with a formal
47 examination or not.
48 2. Any duly authorized officer, employee, or agent of the [health]
49 department[, or department of financial services] may, upon presentation
50 of proper identification, have access to, and inspect, any records main-
51 tained by the community relevant to the [respective] agency's regulatory
52 authority, with or without advance notice, to secure compliance with, or
53 to prevent a violation of, any provision of this article.
54 § 13. Section 4615 of the public health law, as added by chapter 689
55 of the laws of 1989, paragraph j of subdivision 1 as further amended by
56 section 104 of part A of chapter 62 of the laws of 2011, paragraph k of
A. 7742--A 11
1 subdivision 1 as amended by chapter 7 of the laws of 2015 and subdivi-
2 sion 3 as amended by chapter 659 of the laws of 1997, is amended to read
3 as follows:
4 § 4615. Revocation, suspension or annulment of certificate of authori-
5 ty. 1. The [council] commissioner may revoke, suspend, limit or annul
6 the certificate of authority of an operator upon proof that:
7 a. The operator failed to continue to meet the requirements for the
8 authority originally granted;
9 b. The operator lacked one or more of the qualifications for the
10 certificate of authority as specified by this article;
11 c. The operator made a material misstatement, misrepresentation, or
12 committed fraud in obtaining the certificate of authority, or in
13 attempting to obtain the same;
14 d. The operator lacked fitness or was untrustworthy;
15 e. The operator engaged in fraudulent or dishonest practices of
16 management in the conduct of business under the certificate of authori-
17 ty;
18 f. The operator converted or withheld funds;
19 g. The operator failed to comply with, or violated, any proper order,
20 rule or regulation of the council or violated any provision of this
21 article;
22 h. The unsound business practices of the operator renders its further
23 transactions in this state hazardous or injurious to the public;
24 i. The operator has refused to be examined or to produce its accounts,
25 records, and files for examination, or its officers, employees, or
26 controlling persons have refused to give information with respect to the
27 affairs of the community or to perform any other legal obligation as to
28 such examination;
29 j. The [superintendent of financial services] commissioner has made a
30 determination that the operator is insolvent within the meaning of
31 section one thousand three hundred nine of the insurance law; or
32 k. The commissioner has found violations of applicable statutes, rules
33 or regulations which threaten to affect directly the health, safety, or
34 welfare of a resident.
35 2. No certificate of authority shall be revoked, suspended, limited or
36 annulled without a hearing, except that a certificate of authority may
37 be temporarily suspended or limited prior to a hearing for a period not
38 in excess of sixty days upon written notice to the operator following a
39 finding by the commissioner that the public health or safety is in immi-
40 nent danger or there exists any condition or practice or a continuing
41 pattern of conditions or practices that pose an imminent danger to the
42 health or safety of any resident. Any delay in the hearing process occa-
43 sioned by the operator shall toll the running of said suspension or
44 limitation and shall not abridge the full time provided in this subdivi-
45 sion.
46 3. Any state agency which seeks to revoke, suspend, limit or annul the
47 certificate of authority or any other license or certificate required to
48 be obtained by an operator of a continuing care retirement community
49 pursuant to law, shall request the [council] commissioner to commence a
50 hearing pursuant to this section.
51 4. The [council] commissioner shall fix a time and place for the hear-
52 ing. The commissioner shall cause to be served in person or mailed by
53 registered or certified mail to the operator at least ten days before
54 the date fixed for the hearing a copy of the charges, together with the
55 notice of the time and place of the hearing. The operator shall file
56 with the commissioner not less than three days prior to the hearing a
A. 7742--A 12
1 written answer to the charges. The agency which initiated the proceeding
2 shall be responsible for providing evidence in support of the charges to
3 the commissioner in order to prepare a statement of charges and shall
4 provide evidence in support of the charges at the hearing.
5 5. All orders hereunder shall be subject to review as provided in
6 article seventy-eight of the civil practice law and rules. Application
7 for such review must be made within sixty days after service in person
8 or by registered or certified mail of a copy of the order upon the oper-
9 ator.
10 § 14. Section 4616 of the public health law, as added by chapter 689
11 of the laws of 1989, the opening paragraph as amended by chapter 659 of
12 the laws of 1997, is amended to read as follows:
13 § 4616. Appointment of a caretaker. Upon a determination by the [coun-
14 cil] commissioner that there exists operational deficiencies in a
15 continuing care retirement community that show:
16 1. a condition or conditions in substantial violation of the standards
17 for health, safety or patient care established under federal or state
18 law or regulations; or
19 2. [or] that there exists in the facility a pattern or practice of
20 habitual violation of the standards of health, safety or patient care
21 established under federal or state law or regulations, the [council]
22 commissioner shall take the actions prescribed by section forty-six
23 hundred fifteen of this article, and, where the [council] commissioner
24 deems it to be in the public interest, the [council may request that the
25 commissioner, and upon request of the council the] commissioner shall[,]
26 petition a court of competent jurisdiction to appoint a caretaker as
27 defined in section twenty-eight hundred one of this chapter. The peti-
28 tion, the proceedings, and the procedures for appointment of a caretaker
29 shall be governed by the provisions of section forty-six hundred seven-
30 teen of this article, and the powers, duties and rights of a caretaker
31 appointed pursuant to such section shall be the same as those authorized
32 by subdivision four of such section.
33 § 15. Subdivisions 1, 2 and 8 of section 4617 of the public health
34 law, subdivision 1 as amended by chapter 659 of the laws of 1997, and
35 subdivisions 2 and 8 as added by chapter 689 of the laws of 1989, are
36 amended to read as follows:
37 1. The [council] commissioner may, [if it determines] upon a determi-
38 nation that serious operational deficiencies exist or serious financial
39 problems exist and such action is desirable, enter into an agreement
40 with the operator or owners of a continuing care retirement community
41 with respect to the appointment of a receiver to take charge of the
42 community under conditions as found acceptable by both parties. Receiv-
43 ership commenced in accordance with the provisions of this subdivision
44 shall terminate at such time as may be provided in the receivership
45 agreement, or at such time as either party notifies the other in writing
46 that it wishes to terminate such receivership.
47 2. [Upon request of the council, the] The commissioner shall, at the
48 time of revocation, suspension or temporary suspension of a certificate
49 of authority, apply to the supreme court where the community is situated
50 for an order directing the owner of the land and/or structure on or in
51 which the community is located, to show cause why a receiver should not
52 be appointed to take charge of the community. In those cases where the
53 certificate of authority has been revoked, suspended or temporarily
54 suspended, the supreme court shall appoint a receiver that, where
55 reasonably possible, is a legal entity that holds a valid certificate of
56 authority. Such application shall contain proof by affidavit that the
A. 7742--A 13
1 facility has had its certificate of authority revoked, suspended, or
2 temporarily suspended. Such order to show cause shall be returnable not
3 less than five days after service is completed and shall provide for
4 personal service of a copy thereof and the papers on which it is based,
5 on the owner or owners of the land and/or structures on or in which the
6 community is located. If any such owner and manager cannot with due
7 diligence be served personally within the county where the property is
8 located and within the time fixed in such order, then service may be
9 made on such person by posting a copy thereof in a conspicuous place
10 within the community in question, and by sending a copy thereof by
11 registered mail, return receipt requested, to such owner at the last
12 address registered by [him] such owner with the department or in the
13 absence of such registration to the address set forth in the last
14 recorded deed with respect to the facility. Service shall be deemed
15 complete on filing proof of service thereof in the office of the county
16 clerk, or the clerk of the city of New York, as the case may be.
17 8. Any other provision of this article notwithstanding, the [council]
18 commissioner may, if [it] such commissioner deems appropriate, grant to
19 any community operating or scheduled to operate under a receivership
20 authorized by this section a certificate of authority, the duration of
21 which shall be limited to the duration of the receivership.
22 § 16. Section 4668 of the public health law, as added by chapter 519
23 of the laws of 2004, is amended to read as follows:
24 § 4668. Revocation, suspension or annulment of certificate of authori-
25 ty. 1. The [council] commissioner may revoke, suspend, limit or annul
26 the certificate of authority of an operator upon proof that:
27 a. The operator failed to continue to meet the requirements for the
28 authority originally granted;
29 b. The operator lacked one or more of the qualifications for the
30 certificate of authority as specified by this article;
31 c. The operator made a material misstatement, misrepresentation, or
32 committed fraud in obtaining the certificate of authority, or in
33 attempting to obtain the same;
34 d. The operator lacked fitness or was untrustworthy;
35 e. The operator engaged in fraudulent or dishonest practices of
36 management in the conduct of business under the certificate of authori-
37 ty;
38 f. The operator converted or withheld funds;
39 g. The operator failed to comply with, or violated, any proper order,
40 rule or regulation of the council or violated any provision of this
41 article;
42 h. The unsound business practices of the operator renders its further
43 transactions in this state hazardous or injurious to the public;
44 i. The operator has refused to be examined or to produce its accounts,
45 records and files for examination, or its officers, employees or
46 controlling persons have refused to give information with respect to the
47 affairs of the community or to perform any other legal obligation as to
48 such examination; or
49 j. The commissioner has found violations of applicable statutes, rules
50 or regulations which threaten to affect directly the health, safety, or
51 welfare of a resident of a fee-for-service continuing care retirement
52 community.
53 2. No certificate of authority shall be revoked, suspended, limited or
54 annulled without a hearing, except that a certificate of authority may
55 be temporarily suspended or limited prior to a hearing for a period not
56 in excess of sixty days upon written notice to the operator following a
A. 7742--A 14
1 finding by the commissioner that public health or safety is in imminent
2 danger or there exists any condition or practice or a continuing pattern
3 of conditions or practices that pose an imminent danger to the health or
4 safety of any resident. Any delay in the hearing process occasioned by
5 the operator shall toll the running of said suspension or limitation and
6 shall not abridge the full time provided in this subdivision.
7 3. Any state agency which seeks to revoke, suspend, limit or annul the
8 certificate of authority or any other license or certificate required to
9 be obtained by an operator of a community pursuant to law, shall request
10 the [council] commissioner to commence a hearing pursuant to this
11 section.
12 4. The [council] commissioner shall fix a time and place for the hear-
13 ing. The commissioner shall cause to be served in person or mailed by
14 registered or certified mail to the operator at least ten days before
15 the date fixed for the hearing a copy of the charges, together with the
16 notice of the time and place of the hearing. The operator shall file
17 with the commissioner not less than three days prior to the hearing a
18 written answer to the charges. The agency which initiated the proceeding
19 shall be responsible for providing evidence in support of the charges to
20 the commissioner in order to prepare a statement of charges and shall
21 provide evidence in support of the charges at the hearing.
22 5. All orders pursuant to this section shall be subject to review as
23 provided in article seventy-eight of the civil practice law and rules.
24 Application for such review shall be made within sixty days after
25 service in person or by registered or certified mail of a copy of the
26 order upon the operator.
27 § 17. Section 4669 of the public health law, as added by chapter 519
28 of the laws of 2004, is amended to read as follows:
29 § 4669. Appointment of a caretaker. Upon a determination by the
30 [council] commissioner that there exists operational deficiencies in a
31 fee-for-service continuing care retirement community that show:
32 1. there exists in the facility a pattern or practice of habitual
33 violation of the standards of health, safety or patient care established
34 under federal or state law or regulations, the [council] commissioner
35 shall take the actions prescribed by section forty-six hundred sixty-
36 eight of this article, and, where the [council] commissioner deems it to
37 be in the public interest, the [council may request the commissioner,
38 and upon request of the council the] commissioner shall[,] petition a
39 court of competent jurisdiction to appoint a caretaker as defined in
40 section twenty-eight hundred one of this chapter. The petition, the
41 proceedings, and the procedures for appointment of a caretaker shall be
42 governed by the provisions of section forty-six hundred seventy of this
43 article, and the power, duties and rights of a caretaker appointed
44 pursuant to such section shall be the same as those authorized by subdi-
45 vision four of such section; or
46 2. a condition or conditions in substantial violation of the standards
47 for health, safety or patient care established under federal or state
48 law or regulations.
49 § 18. Subdivisions 1, 2 and 8 of section 4670 of the public health
50 law, as added by chapter 519 of the laws of 2004, are amended to read as
51 follows:
52 1. The [council] commissioner may, [if it determines] upon a determi-
53 nation that serious operational deficiencies exist or serious financial
54 problems exist and such action is desirable, enter into an agreement
55 with the operator or owners of a fee-for-service continuing care retire-
56 ment community with respect to the appointment of a receiver to take
A. 7742--A 15
1 charge of the community under conditions as found acceptable by both
2 parties. Receivership commenced in accordance with the provisions of
3 this subdivision shall terminate at such time as may be provided in the
4 receivership agreement, or at such time as either party notifies the
5 other in writing that it wishes to terminate such receivership.
6 2. [Upon request of the council, the] The commissioner shall, at the
7 time of revocation, suspension or temporary suspension of a certificate
8 of authority, apply to the supreme court where the community is situated
9 for an order directing the owner of the land and/or structure on or in
10 which the community is located, to show cause why a receiver should not
11 be appointed to take charge of the community. In those cases where the
12 certificate of authority has been revoked, suspended or temporarily
13 suspended, the supreme court shall appoint a receiver that, where
14 reasonably possible, is a legal entity that holds a valid certificate of
15 authority. Such application shall contain proof by affidavit that the
16 facility has had its certificate of authority revoked, suspended or
17 temporarily suspended. Such order to show cause shall be returnable not
18 less than five days after service is completed and shall provide for
19 personal service of a copy thereof and the papers on which it is based,
20 on the owner or owners of the land and/or structures on or in which the
21 community is located. If any such owner and manager cannot with due
22 diligence be served personally within the county where the property is
23 located and within the time fixed in such order, then service may be
24 made on such person by posting a copy thereof in a conspicuous place
25 within the community in question, and by sending a copy thereof by
26 registered mail, return receipt requested, to such owner at the last
27 address registered by [him or her] such owner with the department or in
28 the absence of such registration to the address set forth in the last
29 recorded deed with respect to the facility. Service shall be deemed
30 complete on filing proof of service thereof in the office of the county
31 clerk, or the clerk of the city of New York, as the case may be.
32 8. Any other provision of this article notwithstanding, the [council]
33 commissioner may, if [it] such commissioner deems appropriate, grant to
34 any community operating or scheduled to operate under a receivership
35 authorized by this section a certificate of authority, the duration of
36 which shall be limited to the duration of the receivership.
37 § 19. Paragraph g of subdivision 4 of section 4621 of the public
38 health law, as added by chapter 406 of the laws of 1991, is amended to
39 read as follows:
40 g. If the funds in an escrow account under this section, and any
41 interest thereon, are not released to the applicant within such time as
42 provided by rules and regulations adopted by the [council] commissioner,
43 then such funds shall be returned by the escrow agent to the person who
44 had made the payments or the person's legal representative.
45 § 20. Subdivision 1 of section 4623 of the public health law, as
46 amended by chapter 659 of the laws of 1997, is amended to read as
47 follows:
48 1. The [council] commissioner may approve an application for a certif-
49 icate of authority and [the commissioner] may issue a certificate of
50 authority for the establishment and operation of a continuing care
51 retirement community under an arrangement which otherwise complies with
52 the requirements of this article except that the costs of nursing facil-
53 ity or home health care services are paid for in whole or in part by (a)
54 long term care insurance obtained and paid for by the resident or by
55 medical assistance payments in accordance with the partnership for long
56 term care program pursuant to section three hundred sixty-seven-f of the
A. 7742--A 16
1 social services law and section three thousand two hundred twenty-nine
2 of the insurance law or (b) other group or individual long term care
3 insurance approved by the superintendent and the council in connection
4 with the application. The council, in consultation with the superinten-
5 dent, shall provide for adequate disclosure to residents of their
6 options, rights and obligations under such an arrangement, and shall
7 establish standards for the remittance and collection of premiums and
8 monthly care fees.
9 § 21. The opening paragraph of subdivision 14 and subdivision 15 of
10 section 4657 of the public health law, as added by chapter 519 of the
11 laws of 2004, are amended to read as follows:
12 In accordance with regulations promulgated by the [council] commis-
13 sioner, the operator shall prepare a standard information sheet for each
14 approved fee-for-service continuing care retirement community, which
15 must be approved by the department, distributed with the community's
16 marketing materials and attached to the initial disclosure statement
17 prepared in accordance with this section. The standard information sheet
18 shall be prepared in plain language and in twelve point type and shall
19 include, but shall not be limited to the following information:
20 15. Any other information as may be required by regulations promulgat-
21 ed by the [council] commissioner.
22 § 22. The opening paragraph and paragraph d of subdivision 2 of
23 section 4658 of the public health law, as added by chapter 519 of the
24 laws of 2004, are amended to read as follows:
25 The annual statement shall be in such form as the [council] commis-
26 sioner prescribes and shall contain at least the following:
27 d. Such other reasonable financial and other information as the [coun-
28 cil] commissioner may require with respect to the operator or the commu-
29 nity, or its directors, controlling persons, trustees, members, branch-
30 es, subsidiaries or affiliates to determine the financial status of the
31 community and the management capabilities of the operator.
32 § 23. Subdivision 2 of section 4651 of the public health law, as added
33 by chapter 519 of the laws of 2004, is amended to read as follows:
34 2. "Certificates" or "certificate of authority" shall mean an authori-
35 zation in writing, approved [by the council] and issued by the commis-
36 sioner, for an operator to operate a fee-for-service continuing care
37 retirement community and to enter into fee-for-service continuing care
38 contracts pertaining to such community.
39 § 24. Section 4654 of the public health law, as amended by chapter 545
40 of the laws of 2004, is amended to read as follows:
41 § 4654. Authorization of fee-for-service continuing care retirement
42 communities. The commissioner[, upon approval of the continuing care
43 retirement community council,] shall approve up to eight fee-for-service
44 continuing care retirement communities to encourage affordable care
45 options for middle income seniors, up to two of which may be operated by
46 a for-profit entity.
47 § 25. The opening paragraph of section 4659 of the public health law,
48 as added by chapter 519 of the laws of 2004, is amended to read as
49 follows:
50 A fee-for-service continuing care contract shall contain all of the
51 following information in no less than twelve point type and in plain
52 language, in addition to any other terms or matter as may be required by
53 regulations [adopted by the council and] issued by the commissioner:
54 § 26. The opening paragraph of subdivision 5 of section 4655 of the
55 public health law, as amended by chapter 545 of the laws of 2004, is
56 amended to read as follows:
A. 7742--A 17
1 If the [approvals] applicant has satisfied the criteria required by
2 subdivision four-a of this section have been obtained, the [council]
3 commissioner shall[, by majority vote,] either approve or reject the
4 application [within sixty days of the date on which the last such
5 approval has been obtained]. In order to approve the application, the
6 [council] commissioner shall have determined that:
7 § 27. Subdivisions 6 and 8 of section 4655 of the public health law,
8 as added by chapter 519 of the laws of 2004, are amended to read as
9 follows:
10 6. Any change in the legal entity operating the fee-for-service
11 continuing care retirement community, or in a controlling person of the
12 community shall require approval in the same manner as an original
13 application; provided, however, that the [council] commissioner may
14 waive any requirement to provide information that is not relevant to
15 such change and provided, further, that the continued public need for
16 the community shall be presumed.
17 8. [If the council approves the application, the] The commissioner
18 shall issue a certificate of authority to the applicant upon approval of
19 the application.
20 § 28. Section 4611 of the public health law, as added by chapter 689
21 of the laws of 1989, the opening paragraph of subdivision 1 as further
22 amended by section 104 of part A of chapter 62 of the laws of 2011, is
23 amended to read as follows:
24 § 4611. Reserves and supporting assets. 1. An operator shall maintain
25 reserve liabilities and supporting assets in an amount and for the
26 purposes set forth in a regulation issued by the [superintendent of
27 financial services] commissioner. Liquid assets must be maintained for
28 the following reserve liabilities:
29 a. Principal and interest payments and payments for taxes and insur-
30 ance for up to twelve months;
31 b. Total estimated operating costs for up to six months as set by the
32 [superintendent] commissioner;
33 c. Repairs and replacements for up to twelve months; and
34 d. In addition, the amount of liquid assets must meet any cash flow
35 requirements and conditions as set forth in a regulation.
36 2. The assets in support of reserve liabilities of subdivision one of
37 this section shall meet quantitative and qualitative standards set forth
38 in regulations issued by the [superintendent] commissioner.
39 § 29. Section 1119 of the insurance law, as amended by chapter 659 of
40 the laws of 1997, is amended to read as follows:
41 § 1119. Limited exemption for continuing care retirement communities.
42 [(a)] An organization complying with the provisions of article forty-six
43 of the public health law may operate without being licensed under this
44 chapter and without being subject to any provisions of this chapter,
45 except to the extent that such organization must comply with the
46 provisions of this chapter by virtue of such article[, and such organ-
47 ization must comply with rules and regulations of the superintendent
48 relating to:
49 (1) financial feasibility of the continuing care retirement community,
50 (2) actuarial principles established relating to such communities,
51 (3) approval of continuing care retirement contracts and the rates and
52 rating system, if any, for such contracts.
53 (b) The superintendent may promulgate regulations in effectuating the
54 purposes and the provisions of this chapter and article forty-six of the
55 public health law, which may include requirements applicable to the
A. 7742--A 18
1 contracts between a continuing care retirement community and its resi-
2 dents.
3 (c) Such organization shall be subject to the provisions of article
4 seventy-four of this chapter. Prior to commencing action under article
5 seventy-four, the superintendent shall consult with the continuing care
6 retirement community council established pursuant to section forty-six
7 hundred two of the public health law].
8 § 30. Subdivision 1 of section 4621 of the public health law, as
9 amended by chapter 659 of the laws of 1997, is amended to read as
10 follows:
11 1. No person, partnership, corporation or other entity shall solicit,
12 collect or receive any priority reservation fee or enter into any agree-
13 ment relating to the payment of any priority reservation fee with
14 respect to any continuing care retirement community to be operated with-
15 in the state without first obtaining the written authorization of the
16 commissioner. The commissioner shall not grant such authorization to an
17 entity that has not yet obtained a certificate of authority unless the
18 requirements of this section and any applicable regulations are met.
19 Upon obtaining the authorization of the commissioner under this section,
20 a prospective continuing care retirement community applicant or an enti-
21 ty that has filed an application for a certificate of authority may
22 enter into cancelable priority reservation agreements with prospective
23 residents and solicit, collect and receive refundable priority reserva-
24 tion fees for direct deposit into an escrow account, prior to obtaining
25 a certificate of authority, for the purpose of evaluating market demand
26 for a proposed continuing care retirement community and for the purpose
27 of guaranteeing to prospective residents an opportunity for priority
28 placement in a continuing care retirement community. A priority reserva-
29 tion fee shall not exceed two thousand dollars unless the commissioner,
30 in the discretion of such commissioner, establishes that a priority
31 reservation fee may exceed two thousand dollars. A non-refundable prior-
32 ity reservation agreement application fee shall not exceed the maximum
33 amount [for such fee as set forth in regulations adopted by the council]
34 established by the commissioner, in such commissioner's discretion.
35 § 31. Subdivision 1 of section 4622 of the public health law, as
36 amended by chapter 659 of the laws of 1997, is amended to read as
37 follows:
38 1. No person, partnership, corporation or other entity shall solicit,
39 collect or receive any priority reservation fee or enter into any agree-
40 ment relating to the payment of any priority reservation fee with
41 respect to any continuing care retirement community operated or to be
42 operated within the state without first obtaining the written authori-
43 zation of the commissioner. The commissioner shall not grant such
44 authorization to an entity that has obtained a certificate of authority
45 unless the requirements of this section and any applicable regulations
46 are met. Upon obtaining the authorization of the commissioner under this
47 section, an operator may enter into cancelable priority reservation
48 agreements with prospective residents and solicit, collect and receive
49 refundable priority reservation fees for direct deposit into an escrow
50 account for the purpose of guaranteeing to prospective residents an
51 opportunity for priority placement in the continuing care retirement
52 community for which the operator has obtained a certificate of authori-
53 ty. A priority reservation fee shall not exceed two thousand dollars
54 unless the commissioner, in the discretion of such commissioner, estab-
55 lishes that a priority reservation fee may exceed two thousand dollars.
56 A non-refundable priority reservation agreement application fee shall
A. 7742--A 19
1 not exceed the maximum amount [for such fee as set forth in regulations
2 adopted by the council] established by the commissioner, in such commis-
3 sioner's discretion.
4 § 32. Subdivision 1 of section 4674 of the public health law, as added
5 by chapter 519 of the laws of 2004, is amended to read as follows:
6 1. No person, partnership, corporation or other entity shall solicit,
7 collect or receive any priority reservation fee or enter into any agree-
8 ment relating to the payment of any priority reservation fee with
9 respect to any fee-for-service continuing care retirement community to
10 be operated within the state without first obtaining the written author-
11 ization of the commissioner. The commissioner shall not grant such
12 authorization to an entity that has not yet obtained a certificate of
13 authority unless the requirements of this section and any applicable
14 regulations are met. Upon obtaining the authorization of the commission-
15 er under this section, a prospective community applicant or an entity
16 having filed an application for a certificate of authority may enter
17 into cancelable priority reservation agreements with prospective resi-
18 dents and solicit, collect and receive refundable priority reservation
19 fees for direct deposit into an escrow account, prior to obtaining a
20 certificate of authority, for the purpose of evaluating market demand
21 for a proposed fee-for-service continuing care retirement community and
22 for the purpose of guaranteeing to prospective residents an opportunity
23 for priority placement in a fee-for-service continuing care retirement
24 community. A priority reservation fee shall not exceed two thousand
25 dollars unless the commissioner, in the discretion of such commissioner,
26 establishes that a priority reservation fee may exceed two thousand
27 dollars. A non-refundable priority reservation agreement application
28 fee shall not exceed the maximum amount [for such fee as set forth in
29 regulations adopted by the council] established by the commissioner, in
30 such commissioner's discretion.
31 § 33. Subdivision 1 of section 4675 of the public health law, as added
32 by chapter 519 of the laws of 2004, is amended to read as follows:
33 1. No person, partnership, corporation or other entity shall solicit,
34 collect or receive any priority reservation fee or enter into any agree-
35 ment relating to the payment of any priority reservation fee with
36 respect to any fee-for-service continuing care retirement community
37 operated or to be operated within the state without first obtaining the
38 written authorization of the commissioner. The commissioner shall not
39 grant such authorization to an entity that has obtained a certificate of
40 authority unless the requirements of this section and any applicable
41 regulations are met. Upon obtaining the authorization of the commission-
42 er under this section, an operator may enter into cancelable priority
43 reservation agreements with prospective residents and solicit, collect
44 and receive refundable priority reservation fees for direct deposit into
45 an escrow account for the purpose of guaranteeing to prospective resi-
46 dents an opportunity for priority placement in the fee-for-service
47 continuing care retirement community for which the operator has obtained
48 a certificate of authority. A priority reservation fee shall not exceed
49 two thousand dollars unless the commissioner, in the discretion of such
50 commissioner, establishes that a priority reservation fee may exceed two
51 thousand dollars. A non-refundable priority reservation agreement
52 application fee shall not exceed the maximum amount [for such fee as set
53 forth in regulations adopted by the council] established by the commis-
54 sioner, in such commissioner's discretion.
55 § 34. No later than December 1, 2024, the commissioner of health, in
56 conjunction with the superintendent of financial services, shall evalu-
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1 ate and make recommendations regarding the additional resources required
2 by the department of health to implement this act to the governor, the
3 division of the budget, the senate finance committee and the assembly
4 ways and means committee.
5 § 35. Notwithstanding section 163 of the state finance law, the
6 commissioner of health may enter into new contracts, or in the
7 discretion of such commissioner, institute a contract addendum to an
8 existing contract to secure actuarial and other services, necessary to
9 implement this act.
10 § 36. This act shall take effect immediately.
