STATE OF NEW YORK
________________________________________________________________________
2118--B
2013-2014 Regular Sessions
IN SENATE
January 11, 2013
___________
Introduced by Sens. RANZENHOFER, DeFRANCISCO, LIBOUS -- read twice and
ordered printed, and when printed to be committed to the Committee on
Health -- reported favorably from said committee, ordered to first and
second report, ordered to a third reading, passed by Senate and deliv-
ered to the Assembly, recalled, vote reconsidered, restored to third
reading, amended and ordered reprinted, retaining its place in the
order of third reading -- recommitted to the Committee on Health in
accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the public health law, in relation to ability of contin-
uing care retirement communities to offer seniors additional service
options
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 2-a, 2-b, 3, 8, 10 and 10-a of section 4601 of
2 the public health law, subdivision 2-a as added and subdivisions 3 and 8
3 as amended by chapter 659 of the laws of 1997, subdivision 2-b as
4 amended by chapter 523 of the laws of 2011, subdivision 10 as added by
5 chapter 689 of the laws of 1989, and subdivision 10-a as added by chap-
6 ter 401 of the laws of 2003, are amended and three new subdivisions 7-a,
7 7-b and 7-c are added to read as follows:
8 2-a. "Continuing care retirement community contract" shall mean a
9 single contract to provide a person the services provided by a continu-
10 ing care retirement community.
11 2-b. "Continuing care retirement community" or "community" shall mean
12 a facility or facilities established to provide a comprehensive, cohe-
13 sive living arrangement for the elderly, oriented to the enhancement of
14 the quality of life and which, pursuant to the terms of the continuing
15 care retirement community contract, at a minimum:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05244-08-4
S. 2118--B 2
1 a. provides, or supports through continuing care at home, independent
2 living units, and [provides a] meal plan options. The independent
3 living unit can be made available either through a non-equity arrange-
4 ment or through an equity arrangement including, but not limited to a
5 cooperative or condominium. For purposes of this article, the purchase
6 price of an independent living unit in an equity arrangement, regardless
7 of the form of the purchase agreement, shall not be considered an entry
8 fee for purposes of calculating reserve liabilities, but shall be
9 considered an entry fee for escrow purposes;
10 b. provides a range of health care and social services, subject to
11 such terms as may be included within the contract, which shall include
12 adult care facility services of an on-site or affiliated adult care
13 facility, and at a minimum, sixty days of prepaid services of an on-site
14 or affiliated nursing facility for residents not receiving services
15 under a fee-for-service contract;
16 c. provides access to health services as defined in the contract,
17 prescription drugs, and rehabilitation services;
18 d. nothing in this article shall eliminate the obligation of a contin-
19 uing care retirement community to provide at least sixty days of prepaid
20 nursing facility services to all residents, with the exception of resi-
21 dents receiving services under the terms of a fee-for-service continuing
22 care contract as defined in this section. The prepaid days must include
23 the first sixty days of nursing facility services, whether or not
24 consecutive, not covered by Title XVIII of the federal social security
25 act; and
26 e. communities established under this article and offering fee-for-
27 service continuing care contracts must offer, along with such fee-for-
28 service continuing care contracts, life care and/or continuing care
29 contracts as defined in subdivision eight-a of this section.
30 3. "Contracts" or "agreements" shall mean continuing care at home or
31 continuing care retirement community contracts as defined in this arti-
32 cle.
33 7-a. "Continuing care at home corporation" shall mean a not-for-profit
34 corporation affiliated with a continuing care retirement community
35 campus provider through which contract holders pay an entrance fee and a
36 monthly fee, both of which would correspond to the level of service
37 chosen by the contract holder.
38 7-b. "Continuing care at home contract" shall mean a single contract
39 to provide a person with long term care services and supports based upon
40 an individual's needs and coordinated by a case manager, which shall
41 include services provided to the individual in his or her residence and
42 services of the affiliated community's nursing facility and adult care
43 facility, or affiliated facilities.
44 7-c. a. "Continuing care at home" corporations providing services in a
45 nursing home as defined in section twenty-eight hundred one of this
46 chapter must be licensed under article twenty-eight and shall be subject
47 to the provisions and standards of such article.
48 b. "Continuing care at home" corporations providing home care services
49 as defined in section thirty-six hundred two of this chapter must be
50 licensed under article thirty-six and shall be subject to the provisions
51 and standards of such article.
52 8. "Life care contract" shall mean a single continuing care retirement
53 community contract or a continuing care at home contract to provide a
54 person, for the duration of such person's life, the services provided by
55 the continuing care retirement community or the continuing care at home
56 corporation, which services shall include unlimited services of [an
S. 2118--B 3
1 on-site or affiliated nursing facility] the affiliated community's nurs-
2 ing facility or affiliated nursing home. Such term also shall mean a
3 single continuing care retirement community contract to provide a
4 person, for the duration of such person's life, the services provided by
5 the continuing care retirement community under an arrangement in which
6 the costs of the residents' unlimited nursing home or home [health] care
7 services are paid for in whole or in part by a long term care insurance
8 policy approved by the superintendent in accordance with applicable
9 regulations or by long term care insurance or medical assistance
10 payments in accordance with the partnership for long term care program
11 pursuant to the provisions of section three hundred sixty-seven-f of the
12 social services law, section three thousand two hundred twenty-nine of
13 the insurance law and section four thousand six hundred twenty-three of
14 this chapter.
15 10. "Living unit" shall mean an apartment, room, cottage, or other
16 area within a community set aside for the exclusive use of one or more
17 residents, or in the case of a continuing care at home contract, the
18 contract holder's private residence.
19 [10-a. "Meal plan" shall mean an arrangement whereby the person enter-
20 ing into the continuing care retirement contract is provided with no
21 fewer than five meals per month. Additional meals shall be available on
22 a fee-for-service basis.]
23 § 2. The opening paragraph of subdivision 2 of section 4602 of the
24 public health law, as amended by chapter 659 of the laws of 1997, is
25 amended to read as follows:
26 The council shall meet as often as may be deemed necessary to fulfill
27 its responsibilities[, but in no event less than four times per year].
28 The council shall have the following powers and duties:
29 § 3. Subdivision 1 of section 4603-a of the public health law, as
30 added by chapter 393 of the laws of 1991, is amended to read as follows:
31 1. The commissioner, upon approval of the [life care] continuing care
32 retirement community council and the public health council shall issue a
33 certificate of incorporation of up to three residential health care
34 demonstration facilities. Notwithstanding any provision of article twen-
35 ty-eight of this chapter or any other provisions of law to the contrary,
36 the public health council may approve without regard to the requirement
37 of public need as set forth in subdivision three of section twenty-eight
38 hundred one-a of this chapter, a certificate of incorporation or appli-
39 cation for establishment of such facilities.
40 § 4. Paragraphs d and e and clause (C) of subparagraph (iv) of para-
41 graph j of subdivision 2 of section 4604 of the public health law, para-
42 graph d as added by chapter 689 of the laws of 1989 and paragraph e and
43 clause (C) of subparagraph (iv) of paragraph j as amended by chapter 659
44 of the laws of 1997, are amended to read as follows:
45 d. a copy of the proposed forms of contracts to be entered into with
46 residents of the community or continuing care at home contract holders;
47 e. complete details of any agreements with a licensed insurer, includ-
48 ing copies of proposed contracts, requiring the insurer to assume, whol-
49 ly or in part, the cost of medical or health related services to be
50 provided to a resident or continuing care at home contract holders
51 pursuant to a continuing care retirement community or continuing care at
52 home contract;
53 (C) is or was subject to a currently effective injunctive or restric-
54 tive order or federal or state administrative order relating to business
55 activity or health care as a result of an action brought by a public
56 agency or department, including, without limitation, actions affecting a
S. 2118--B 4
1 license to operate a hospital as defined by section twenty-eight hundred
2 one of this chapter, or a facility required to be licensed or certified
3 by the department [of social services]. The statement shall set forth
4 the court or agency, date of conviction or judgment, the penalty imposed
5 or damages assessed, or the date, nature and issuer of the order;
6 § 5. Paragraphs b, c and d of subdivision 4 of section 4604 of the
7 public health law, as amended and paragraph d as added by chapter 659 of
8 the laws of 1997, are amended to read as follows:
9 b. the commissioner [of social services] as to those aspects of the
10 application relating to adult care facility beds, if any;
11 c. the public health and health planning council under section twen-
12 ty-eight hundred one-a of this chapter as to the establishment of a
13 skilled nursing facility by the applicant and as to such other facili-
14 ties and services as may require the public health and health planning
15 council's approval of the application; provided, however, that the
16 recommendations of the [state hospital review and planning council and
17 the] health systems agency having geographical jurisdiction of the area
18 where the continuing care retirement community is located shall not be
19 required with respect to the establishment of an on-site or affiliated
20 residential health care facility to serve residents as part of the
21 continuing care retirement community, for up to the total number of
22 residential health care facility beds provided for in subdivision five
23 of this section in communities statewide;
24 d. the commissioner under section twenty-eight hundred two of this
25 chapter; provided, however, that, the recommendations of the [state
26 hospital review and] public health and health planning council and the
27 health systems agency having geographical jurisdiction of the area where
28 the continuing care retirement community is located shall not be
29 required with respect to the construction of an on-site or affiliated
30 residential health care facility to serve residents as part of the
31 continuing care retirement community, for up to the total number of
32 residential health care facility beds provided for in subdivision five
33 of this section in communities statewide; and
34 § 6. Paragraph g of subdivision 2 of section 4604-a of the public
35 health law, as added by chapter 659 of the laws of 1997, is amended to
36 read as follows:
37 g. Unless all residents or continuing care at home contract holders
38 have life care contracts, the operator has adequately made the assur-
39 ances required by subdivision two of section forty-six hundred twenty-
40 four of this article and has agreed to fund the liability in the event
41 that [resident] such resident's or contract holder's assets are insuffi-
42 cient to pay for nursing facility services for a one year period.
43 § 7. Subdivision 13 of section 4606 of the public health law, as added
44 by chapter 659 of the laws of 1997, is amended to read as follows:
45 13. The initial disclosure statement and marketing materials of a
46 continuing care retirement community and continuing care at home corpo-
47 ration must clearly include a description of the services offered as
48 part of its contract, including, but not limited to, any limitations on
49 nursing facility services. The initial disclosure statement and market-
50 ing materials of a continuing care retirement community or continuing
51 care at home corporation which offers various types of contracts, which
52 may include life care contracts, must clearly differentiate among the
53 various types of contracts which it may offer.
54 § 8. Paragraphs e, f and g of subdivision 14 of section 4606 of the
55 public health law are relettered paragraphs f, g and h and a new para-
56 graph e is added to read as follows:
S. 2118--B 5
1 e. the types of meal plans available;
2 § 9. Section 4608 of the public health law, as added by chapter 689 of
3 the laws of 1989, the section heading, the opening paragraph and subdi-
4 vision 6 as amended and subdivision 17 as added by chapter 659 of the
5 laws of 1997, subdivision 2 as amended by chapter 120 of the laws of
6 1993, subdivision 8 as amended by chapter 66 of the laws of 1994 and
7 subdivision 15 as further amended by section 104 of part A of chapter 62
8 of the laws of 2011, is amended to read as follows:
9 § 4608. Continuing care retirement community contract. A continuing
10 care retirement community or continuing care at home contract shall
11 contain all of the following information in no less than twelve point
12 type and in plain language, in addition to any other terms or matter as
13 may be required by regulations adopted by the council and issued by the
14 superintendent, except when specifically noted:
15 1. The amount of all money transferred, including, but not limited to,
16 donations, subscriptions, deposits, fees, and any other amounts paid or
17 payable by, or on behalf of, the resident or residents or continuing
18 care at home contract holder or holders;
19 2. A description of all services which are to be furnished by the
20 operator, a description of any fees in addition to the entrance fee and
21 periodic charges provided for in the contract, and the conditions under
22 which the fees may be adjusted, provided that an operator shall not
23 charge any non-refundable application fee to a prospective resident who
24 has paid a non-refundable priority reservation agreement application
25 fee;
26 3. The procedures of the community or continuing care at home corpo-
27 ration relating to a resident's or contract holder's failure to pay the
28 required monthly fees;
29 4. A statement of the figures and terms concerning the entry of a
30 spouse to the community and the consequences if the spouse does not meet
31 the requirements for entry;
32 5. A statement of the terms and conditions under which a contract may
33 be cancelled by the operator or by a resident or contract holder and the
34 conditions under which all or any portion of the entrance fee will be
35 refunded by the operator, including the mandatory refund provisions set
36 forth in sections forty-six hundred nine and forty-six hundred ten of
37 this article;
38 6. a. The procedures and conditions under which a resident may be
39 transferred from his or her living unit or home including a statement
40 that, at the time of transfer, the resident will be given the reasons
41 for the transfer; the process by which a transfer decision is made; the
42 persons with the authority to make the decision to transfer; a
43 description of any change in charges to be paid by the resident for
44 services not covered by the contract fees as a result of the transfer;
45 and a statement regarding the disposition of and the right to return to
46 the living unit in cases of temporary and permanent transfers.
47 b. [The] For continuing care retirement community contracts, the
48 circumstances under which a living unit may be considered vacant and
49 eligible for transfer or resale to a new resident, either due to the
50 permanent transfer of a resident to the community's nursing or other
51 specialized facility or due to the permanent transfer of a resident to a
52 hospital or other facility outside of the community; provided, however,
53 that nothing therein shall relieve a community from its obligations to
54 provide or to insure provision of all contractually required care pursu-
55 ant to the terms of a continuing care retirement contract. Should a
56 resident's chronic condition require placement in a more specialized
S. 2118--B 6
1 chronic care facility that provides services beyond those provided
2 through the community's nursing facility, the liability of the community
3 pursuant to the terms of a continuing care retirement contract shall be
4 equal to the current per diem rate of the nursing facility minus the pro
5 rata apportionment of the resident's monthly fee for the period of care
6 required by the contract. Nothing herein shall obligate a continuing
7 care retirement community which does not have a life care contract with
8 a resident to provide or pay for a level of nursing facility services
9 nor for any duration beyond what is specifically described in its
10 continuing care retirement contract with that resident. This section
11 shall not affect the operator's obligation under subdivision two of
12 section forty-six hundred twenty-four of this article;
13 7. [A] For continuing care retirement community contracts, a statement
14 that, if the resident dies prior to occupancy date or, through illness,
15 injury, or incapacity is precluded from becoming a resident under the
16 terms of the contract, the contract is automatically rescinded and the
17 resident or his or her legal representative shall receive a full refund
18 of all moneys paid to the facility, except for those costs specifically
19 incurred by the facility at the request of the resident and set forth in
20 writing in a separate addendum, signed by the parties to the contract;
21 8. [A] For continuing care at home contracts, the circumstances under
22 which the contract holder may move into a campus independent living
23 unit, adult care facility or nursing home;
24 9. For continuing care retirement community contracts, a statement of
25 the conditions under which all or any portion of the entrance fee will
26 be released to the operator before the living unit becomes available for
27 occupancy, and a statement of the conditions under which all or any
28 portion of that fee will be refunded in the event of the death of the
29 resident and/or spouse following occupancy of a living unit, including
30 the mandatory refund provisions set forth in section forty-six hundred
31 nine of this article;
32 [9.] 10. A statement of the advance notice to be provided the resident
33 or contract holder, of not less than sixty days, of any change in fees
34 or charges or scope of care or services;
35 [10.] 11. A statement that no act, agreement, or statement of any
36 resident or contract holder, or of an individual purchasing care for a
37 resident or contract holder under any agreement to furnish care to the
38 resident or contract holder, shall constitute a valid waiver of any
39 provision of this article or of any regulation enacted pursuant thereto
40 intended for the benefit or protection of the resident or contract hold-
41 er or the individual purchasing care for the resident or contract
42 holder;
43 [11. A] 12. For continuing care retirement community contracts, a
44 description of the reinstatement policies if a resident leaves the
45 facility or the contract is cancelled;
46 [12.] 13. For continuing care at home contracts, a description of
47 policies if the contract is cancelled.
48 14. A statement that internal procedures to resolve disputes and
49 grievances have been established, and residents and contract holders
50 notified of them;
51 [13.] 15. A statement of the grace period, if any, for the payment of
52 periodic fees without a penalty, and the extent of any penalty for the
53 late payment thereof;
54 [14.] 16. A statement that: a. the resident or contract holder, as
55 applicable shall, if eligible, enroll in medicare parts a and b or the
56 equivalent and shall continue to maintain that coverage, together with
S. 2118--B 7
1 medicare supplement coverage at least equivalent in benefits to those
2 established by the superintendent as minimum benefits for medicare
3 supplement policies;
4 b. if the resident or contract holder fails to maintain medicare
5 coverage and a medicare supplement coverage, or is ineligible for such
6 coverage and fails to purchase the equivalent of such coverage, the
7 community or continuing care at home corporation shall purchase the
8 coverage or equivalent coverage on behalf and at the expense of the
9 resident or contract holder and shall have the authority to require an
10 appropriate adjustment in payments by the resident or contract holder to
11 the community or continuing care at home corporation;
12 c. if the community or continuing care at home corporation cannot
13 purchase medicare coverage and medicare supplement coverage or the
14 equivalent, the community shall have the authority to require an adjust-
15 ment in monthly fees, subject to the approval of the superintendent, to
16 fund the additional risk to the facility or corporation; and
17 d. if the resident or contract holder fails to purchase or maintain
18 medicare coverage and medicare supplement coverage or the equivalent,
19 and the community or continuing care at home corporation has not
20 purchased such coverage, the community or corporation will be responsi-
21 ble for any expenses which would have been covered by medicare and medi-
22 care supplement coverage. The community or corporation may add the
23 amount of such expenses to the resident's or contract holder's monthly
24 fees.
25 [15.] 17. A statement that any amendment to the contract and any
26 change in fees or charges, other than those within the guidelines of an
27 approved rating system, must be approved by the superintendent of finan-
28 cial services; and
29 [16.] 18. A statement that property shall not be substituted as
30 payment for either the entrance fee or monthly fee.
31 [17.] 19. [A] For continuing care retirement community contracts, a
32 statement whether the continuing care retirement community contract
33 includes any ownership, beneficial or trust interest in the assets of
34 the operator, the assets of the facility, or both. Assets shall include,
35 but are not limited to, property, trusts, reserves, interest and other
36 assets.
37 § 10. Subdivision 1 of section 4612 of the public health law, as added
38 by chapter 689 of the laws of 1989, is amended to read as follows:
39 1. Residents [living] in a community authorized by this article shall
40 have the right of self-organization, the right to be represented by one
41 or more individuals of their own choosing, and the right to engage in
42 concerted activities for the purpose of keeping informed of the opera-
43 tion of the community in which they live.
44 § 11. Subdivisions 1 and 2 of section 4614 of the public health law,
45 as amended by chapter 659 of the laws of 1997 and subdivision 2 as
46 further amended by section 104 of part A of chapter 62 of the laws of
47 2011, are amended to read as follows:
48 1. The commissioner, or designee; and the superintendent, or designee;
49 [and, with regard to communities for which the department of social
50 services has regulatory responsibility, the commissioner of social
51 services, or designee,] may at any time, and shall at least once every
52 three years, visit each community and examine the business of any appli-
53 cant for a certificate of authority and any operator engaged in the
54 execution of continuing care retirement community contracts or continu-
55 ing care at home contracts or engaged in the performance of obligations
56 under such contracts. Routine examinations may be conducted by having
S. 2118--B 8
1 documents designated by and submitted to such commissioners or super-
2 intendent, which shall include financial documents and records conform-
3 ing to commonly accepted accounting principles and practices. The final
4 written report of each such examination conducted by such commissioners
5 or superintendent shall be filed with the commissioner and, when so
6 filed, shall constitute a public record. A copy of each report shall be
7 provided to members of the continuing care retirement community council.
8 Any operator being examined shall, upon request, give reasonable and
9 timely access to all of its records. The representative or examiner
10 designated by the commissioners or superintendent, respectively, may, at
11 any time, examine the records and affairs and inspect the community's
12 facilities, whether in connection with a formal examination or not.
13 2. Any duly authorized officer, employee, or agent of the health
14 department, [social services department,] or department of financial
15 services may, upon presentation of proper identification, have access
16 to, and inspect, any records maintained by the community or by the
17 continuing care at home corporation relevant to the respective agency's
18 regulatory authority, with or without advance notice, to secure compli-
19 ance with, or to prevent a violation of, any provision of this article.
20 § 12. Paragraph k of subdivision 1 of section 4615 of the public
21 health law, as amended by chapter 659 of the laws of 1997, is amended to
22 read as follows:
23 k. The commissioner [or the commissioner of social services] has found
24 violations of applicable statutes, rules or regulations which threaten
25 to affect directly the health, safety, or welfare of a resident of a
26 continuing care retirement community or a contract holder of a continu-
27 ing care at home contract.
28 § 13. The section heading of section 4623 of the public health law, as
29 amended by chapter 659 of the laws of 1997, is amended to read as
30 follows:
31 Long term care insurance [for] and continuing care retirement
32 contracts.
33 § 14. This act shall take effect immediately.
