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A08193 Summary:

BILL NOA08193
 
SAME ASSAME AS S01803-A
 
SPONSORSchimminger
 
COSPNSRGottfried, Lupardo, Abinanti, Sayegh, Dinowitz, Galef
 
MLTSPNSR
 
Rpld §4603, amd Pub Health L, generally
 
Promotes efficient and effective oversight of continuing care retirement communities.
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A08193 Actions:

BILL NOA08193
 
06/07/2019referred to health
06/13/2019reported referred to ways and means
06/20/2019reported referred to rules
06/20/2019reported
06/20/2019rules report cal.676
06/20/2019substituted by s1803a
 S01803 AMEND=A RIVERA
 01/16/2019REFERRED TO HEALTH
 06/10/2019AMEND (T) AND RECOMMIT TO HEALTH
 06/10/2019PRINT NUMBER 1803A
 06/18/2019COMMITTEE DISCHARGED AND COMMITTED TO RULES
 06/18/2019ORDERED TO THIRD READING CAL.1534
 06/18/2019PASSED SENATE
 06/18/2019DELIVERED TO ASSEMBLY
 06/19/2019referred to ways and means
 06/20/2019substituted for a8193
 06/20/2019ordered to third reading rules cal.676
 06/20/2019passed assembly
 06/20/2019returned to senate
 11/19/2019DELIVERED TO GOVERNOR
 11/25/2019VETOED MEMO.157
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A08193 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8193
 
SPONSOR: Schimminger
  TITLE OF BILL: An act to amend the public health law, in relation to promoting efficient and effective oversight of continuing care retire- ment communities; and to repeal certain provisions of such law relating thereto   PURPOSE OF THE BILL: 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 In the 30 years since its enactment, Article 46 has become outdated and now represents a major impediment to the development and expansion of CCRCs in New York. The regulatory framework and policies stemming from Articles 46 and 46-A create an environment in which it is: (1) prohib- itively 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, expan- sion, and efficient operation of CCRCs in New York while preserving vitally important 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 SPECIFIC PROVISIONS: Sections one and two of the bill amend sections 4602 and 4603 of the PHL to to assign an advisory role to the Continuing Care Retirement Communi- ty Council and delegate the other duties of the CCRC Council to the Commissioner of Health. This includes granting certificates of authori- ty, with final approval for nursing home beds remaining with the Public Health and Health Planning Council (PHHPC), and oversight of operating communities. 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 confom ing 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 fourteen 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 fifteen through twenty-eight of the bill make conforming amend- ments to sections 4621 and 4623 (CCRC) and sections 4651, 4654, 4655, 4657, 4658 and 4659 (FFS CCRC) of the PHL to substitute the Commissioner of Health for the CCRC Council related to promulgation of regulations, approvals of certificates of authority, and content of various disclo- sures. Section twenty-nine of the bill amends section 4611 of the PHL to authorize the Commissioner of Health to establish reserve and asset levels for CCRCs. Section thirty of the bill establishes an effective date 180 days after enactment.   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 experience 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, at times the Council has experienced difficulty 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.   PRIOR LEGISLATIVE HISTORY: 2017-2018: A.6450/S.5172; 2015-2016: A.10657/S.7778.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Positive to the State. The economic activity associated with further CCRC development and operation would be expected to generate additional tax revenues to the State. Reduced reliance on Medicaid associated with CCRC residency would save State and federal dollars.   EFFECTIVE DATE: 180 days after enactment, provided that the commissioner may make regu- lations beforehand that would become effective at the same time as the law.
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A08193 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8193
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                      June 7, 2019
                                       ___________
 
        Introduced  by M. of A. SCHIMMINGER, GOTTFRIED -- read once and referred
          to the Committee on Health
 
        AN ACT to amend the public health law, in relation  to  promoting  effi-
          cient  and  effective oversight of continuing care retirement communi-
          ties; 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
    21  representing the interests of senior citizens. The public members of the
    22  council shall have fixed terms of  four  years.  The  council  shall  be
    23  chaired by the commissioner or his or her designee.
    24    Members  of  such  council  shall serve without compensation for their
    25  services as members of the council, except that  each  of  them  may  be
    26  allowed  the  necessary  and actual expenses which he shall incur in the
    27  performance of his duties under this article.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13175-02-9

        A. 8193                             2

     1    2. The council shall meet as often  as  may  be  deemed  necessary  to
     2  fulfill its responsibilities.] The [council] commissioner shall have the
     3  following powers and duties:
     4    a. to receive applications from potential operators of continuing care
     5  retirement communities and to distribute such applications for review to
     6  the participating agencies;
     7    b.  to  develop  uniform  forms  for  applications for certificates of
     8  authority, to review the status of such applications, and to  coordinate
     9  the  review  of  such  applications  in order to minimize duplication or
    10  delay;
    11    c. to provide information to entities wishing to establish  continuing
    12  care  retirement communities and to persons interested in becoming resi-
    13  dents of such communities, to  the  extent  appropriate,  with  concerns
    14  relating to the operation of such facilities;
    15    d. to issue certificates of authority to approved applicants;
    16    e.  to  approve  or  reject  applications  to  obtain a certificate of
    17  authority for the establishment  and  operation  of  a  continuing  care
    18  retirement  community.  In reviewing applications, the [council] commis-
    19  sioner shall consider the extent to which the applications reflect vari-
    20  ous sponsorships, organizational structures, geographic dispersion,  and
    21  the  public  benefit.  In  determining the public benefit of a community
    22  requiring construction of a total  nursing  facility  component  greater
    23  than  or  equal  to ninety beds, the [council] commissioner shall obtain
    24  and consider the recommendation of the [state  hospital  review]  public
    25  health  and  health  planning  council  with regard to the effect of the
    26  construction of the community's  nursing  facility  beds  upon  existing
    27  facilities in the same geographic area;
    28    [b.]  f. to require the reporting of such facts and information as the
    29  [council] commissioner may deem necessary to enforce the  provisions  of
    30  this article;
    31    [c.]  g.  to  coordinate the oversight of operating communities and to
    32  assign review and regulatory responsibility for  particular  aspects  of
    33  such  communities  to  the  appropriate  agencies, consistent with their
    34  legal authority, to assure consistent state supervision  without  dupli-
    35  cation of inspection or regulatory review;
    36    [d.]  h. to make such recommendations to the governor and the legisla-
    37  ture as may be necessary to encourage or further regulate  the  develop-
    38  ment of continuing care retirement communities;
    39    [e.] i. to establish and charge equitable and reasonable annual charg-
    40  es  for operators, not to exceed fifty dollars per approved living unit,
    41  to subsidize, in part, expenditures incurred in  reviewing  applications
    42  for certificates of authority and in inspecting, regulating, supervising
    43  and auditing continuing care retirement communities;
    44    [f.  to  review  reports from the participating agencies regarding the
    45  operations and financial management of approved  communities,  including
    46  any  reports regarding the financial condition of any community that may
    47  be in need of close supervision and any reports of deficiencies  in  the
    48  provision of health or social services to residents of any community;
    49    g.] j. to adopt rules and regulations and amendments thereto to effec-
    50  tuate the provisions of this article;
    51    [h.] k. to revoke, suspend, limit, or annul a certificate of authority
    52  under  conditions set forth in section forty-six hundred fifteen of this
    53  article, including when such action is taken at the specific request  of
    54  any  participating  council  agency.  [When action has been taken by the
    55  commissioner pursuant to subdivision seven of section forty-six  hundred
    56  three  of  this  article,  the  council shall meet as soon as reasonably

        A. 8193                             3

     1  possible to approve or disapprove the action  of  the  commissioner  and
     2  shall take such further action as may be appropriate;
     3    i. to develop guidelines for applications for certificates of authori-
     4  ty;
     5    j.]  l.  to  carry  out  any  other  responsibilities entrusted to the
     6  commissioner pursuant to this chapter that may be necessary with  regard
     7  to the health care activities of continuing care retirement communities;
     8    m.  to make available to all prospective operators all pertinent regu-
     9  lations regarding health and insurance necessary  to  comply  with  this
    10  article;
    11    n. to [make a final determination regarding an application] approve or
    12  reject  applications  for  authorization  by prospective continuing care
    13  retirement community applicants, entities that have filed an application
    14  for a certificate of authority and operators, to enter into  cancellable
    15  priority  reservation agreements [where the commissioner has proposed to
    16  reject such application] and to collect refundable priority  reservation
    17  fees from prospective residents;
    18    [k.]  o. to require the reporting of such facts and information as the
    19  [council] commissioner may deem necessary to determine  whether  charac-
    20  teristics  of  residential  health care demonstration facilities such as
    21  comprehensive systems of residential and support services for the elder-
    22  ly may be successfully incorporated into existing or approved continuing
    23  care retirement communities;
    24    [l.] p. to review and approve or  reject  applications  by  continuing
    25  care  retirement  community operators to use entrance fees to assist the
    26  operator in financing the construction or purchase of a proposed contin-
    27  uing care retirement community in accordance with paragraph b of  subdi-
    28  vision six of section forty-six hundred ten of this article; and
    29    [m.]  q.  to  review  and  approve or reject any proposed financing by
    30  industrial development agencies of continuing care  retirement  communi-
    31  ties  pursuant  to  article  eighteen-A  of the general municipal law as
    32  authorized by section forty-six hundred four-a of this article.
    33    [3. The council shall establish guidelines under which the commission-
    34  er is authorized to approve or reject any proposed refinancing,  if  the
    35  council  has  already approved an application pursuant to paragraph a of
    36  subdivision two of this section.]
    37    § 2. Section 4603 of the public health  law  is  REPEALED  and  a  new
    38  section 4603 is added to read as follows:
    39    §  4603.  Continuing  care  retirement  community  council; powers and
    40  duties. 1. The continuing care retirement community  council  is  hereby
    41  established, to consist of the following, or their designees: the attor-
    42  ney general; the commissioner; the director of the office for the aging;
    43  and  eight  public members appointed by the governor with the advice and
    44  consent of the senate. Such public members shall  be  representative  of
    45  the  public, and have a demonstrated expertise or interest in continuing
    46  care retirement communities; provided that no more than one such  member
    47  shall  be  a  sponsor,  owner,  operator,  manager, member of a board of
    48  directors, or shareholder of a continuing care retirement community.  At
    49  least two public members shall be residents of a continuing care retire-
    50  ment  community. At least one of the public members shall be a represen-
    51  tative of an organization with demonstrated experience  in  representing
    52  the  interests  of  senior  citizens.  The public members of the council
    53  shall have fixed terms of four years. The council shall  be  chaired  by
    54  the commissioner or his or her designee.
    55    Members  of  such  council  shall serve without compensation for their
    56  services as members of the council, except that  each  of  them  may  be

        A. 8193                             4
 
     1  allowed the necessary and actual expenses which he or she shall incur in
     2  the performance of his/her or their duties under this article.
     3    2.  The  council  shall  meet  as  often as may be deemed necessary to
     4  fulfill its responsibilities.  The  council  shall  have  the  following
     5  powers and duties:
     6    a.  to assist the commissioner on policy matters related to the estab-
     7  lishment and operation of continuing care retirement communities;
     8    b. to assist the commissioner in the development of the state's  over-
     9  all  policy  regarding  continuing care retirement communities and cause
    10  studies and research to be conducted as it may deem advisable and neces-
    11  sary; and
    12    c. to make such recommendations to the governor and the legislature as
    13  may be necessary to encourage or further  regulate  the  development  of
    14  continuing care retirement communities.
    15    §  3.  Subdivision  4  of  section  4604  of the public health law, as
    16  amended by chapter 659 of the laws of 1997, subparagraphs (i), (ii)  and
    17  (iii)  of  paragraph  a  as  further amended by section 104 of part A of
    18  chapter 62 of the laws of 2011, paragraphs b and d as amended by chapter
    19  549 of the laws of 2014, and paragraph c as amended by chapter 7 of  the
    20  laws of 2015, is amended to read as follows:
    21    4. No certificate of authority shall be issued unless the commissioner
    22  has approved an application meeting the requirements of this section and
    23  all other requirements established by law [has been approved by] includ-
    24  ing:
    25    a. [(i)] the [superintendent of financial services as to the] actuari-
    26  al  principles  involved, the financial feasibility of the facility, the
    27  form and content of the proposed contracts to be entered into with resi-
    28  dents and insurance contracts between an operator and an insurer requir-
    29  ing the insurer to assume, wholly or in part, the  cost  of  medical  or
    30  health  related services to be provided to a resident, provided that the
    31  review may be conducted by the commissioner  or  his  or  her  designee,
    32  including any necessary independent actuarial review;
    33    [(ii) the superintendent of financial services as to] b. the rates and
    34  rating  methodology, if any, to be used by the operator to determine any
    35  entrance fee, monthly care fee and/or any separate charges for the hous-
    36  ing component of the continuing care contract including but not  limited
    37  to  a cooperative or condominium fee charged to the resident as proposed
    38  in said operator's application for certificate of authority.  Subsequent
    39  increases in any entrance or monthly care fee in excess of  fees  calcu-
    40  lated pursuant to the approved rating methodology shall require approval
    41  of  the [superintendent] commissioner.  The term "rating methodology" as
    42  used herein shall incorporate a combination of variables  including  but
    43  not  limited  to  a pricing structure for comparable services, projected
    44  operating and health care costs and the applicable  inflationary  impact
    45  thereon,  projected  income  and  occupancy  rates and the refundability
    46  component of the continuing care retirement contract[.
    47    (iii) the superintendent of financial services as to];
    48    c. any monthly care fee charged to a resident which may  be  increased
    49  or  decreased  subject  to  approval by the [superintendent of financial
    50  services]  commissioner,  provided,  that  monthly  care  fees  may   be
    51  increased  or  decreased  without  specific  approval  as  long  as such
    52  increase or decrease does not exceed a relevant cost  index  or  indices
    53  which  reflect  all  components  of  continuing care including the costs
    54  associated with provision of health care as determined  and  promulgated
    55  at  least  annually  by  the [superintendent] commissioner or his or her
    56  designee, including any  necessary  independent  actuarial  review,  and

        A. 8193                             5
 
     1  provided  further  that the [superintendent] commissioner is notified of
     2  any such increase or decrease prior to its taking effect[.
     3    (iv) An];
     4    d.  the  requirement  that  an  individual resident's monthly care fee
     5  shall not be modified because of the increased need for services of that
     6  resident;
     7    [b. the commissioner as to those] e. aspects of the application relat-
     8  ing to adult care facility beds, if any;
     9    [c.] f. review by the public health and health planning council as  to
    10  the  establishment of a skilled nursing facility by the applicant and as
    11  to such other facilities and services as may require the  public  health
    12  and  health  planning  council's  approval of the application; provided,
    13  however, that the recommendations of the health  systems  agency  having
    14  geographical  jurisdiction of the area where the continuing care retire-
    15  ment community is located shall not be  required  with  respect  to  the
    16  establishment of an on-site or affiliated residential health care facil-
    17  ity  to serve residents as part of the continuing care retirement commu-
    18  nity, for up to the total number of  residential  health  care  facility
    19  beds  provided  for  in  subdivision five of this section in communities
    20  statewide;
    21    [d. the commissioner under section twenty-eight hundred  two  of  this
    22  chapter;]  provided, [however] further, that, the recommendations of the
    23  public health and health planning council and the health systems  agency
    24  having  geographical  jurisdiction of the area where the continuing care
    25  retirement community is located shall not be required  with  respect  to
    26  the  construction  of  an  on-site or affiliated residential health care
    27  facility to serve residents as part of the  continuing  care  retirement
    28  community, for up to the total number of residential health care facili-
    29  ty  beds provided for in subdivision five of this section in communities
    30  statewide; and
    31    [e. the] g. upon consultation with the attorney general, as  to  those
    32  aspects  of  the  application  relating to a cooperative, condominium or
    33  other equity arrangement for the independent living unit, if any.
    34    § 4. The opening paragraph of subdivision 6 of  section  4604  of  the
    35  public  health  law,  as  amended by chapter 659 of the laws of 1997, is
    36  amended to read as follows:
    37    If the [approvals] applicant has satisfied the  criteria  required  by
    38  subdivision  four  of  this  section [have been obtained], the [council]
    39  commissioner shall[, by majority vote,] either  approve  or  reject  the
    40  application  [within  sixty  days  of  the  date  on which the last such
    41  approval has been obtained]. In order to approve  the  application,  the
    42  [council] commissioner shall have determined that:
    43    §  5.  Subdivisions  7 and 9 of section 4604 of the public health law,
    44  subdivision 7 as amended by chapter 659 of the laws of 1997 and subdivi-
    45  sion 9 as added by chapter 689 of the laws of 1989, are amended to  read
    46  as follows:
    47    7.  Any  change  in  the  legal  entity  operating the continuing care
    48  retirement community, or in a controlling person of the community  shall
    49  require  approval  in  the  same  manner  as  an  original  application;
    50  provided,  however,  that  the  [council]  commissioner  may  waive  any
    51  requirement  to  provide information that is not relevant to such change
    52  and provided, further, that the continued public need for the  community
    53  shall be presumed.
    54    9.  [If  the  council  approves the application, the] The commissioner
    55  shall issue the certificate of authority to the applicant upon  approval
    56  of the application.

        A. 8193                             6
 
     1    §  6.  Section  4604-a of the public health law, as amended by chapter
     2  659 of the laws of 1997, paragraph g of  subdivision  2  as  amended  by
     3  chapter 549 of the laws of 2014, is amended to read as follows:
     4    §  4604-a.  [Council]  Commissioner  approval  required for industrial
     5  development agency financing in connection with continuing care  retire-
     6  ment  communities.  1.  No person seeking financing in connection with a
     7  continuing care retirement community through an  industrial  development
     8  agency  shall undertake such financing without the prior approval of the
     9  [council] commissioner. Upon approving a proposed financing pursuant  to
    10  this  section,  the  [council] commissioner shall issue a certificate of
    11  authorization to the applicant.
    12    2. Prior to approving such financing, the [council] commissioner shall
    13  find that:
    14    a. The operator has  (i)  executed  contracts  for  at  least  seventy
    15  percent  of  all living units and has on deposit at least ten percent of
    16  the entrance fees or purchase price for such  units;  or  (ii)  executed
    17  contracts  for  at  least  sixty  percent of all living units and has on
    18  deposit at least twenty-five percent of the entrance  fees  or  purchase
    19  price for such units.
    20    b.  The  operator has demonstrated capability to comply fully with the
    21  requirements for a certificate of authority and has obtained  a  contin-
    22  gent certificate of authority pursuant to section forty-six hundred four
    23  of  this article and the operator has agreed to meet the requirements of
    24  article eighteen-A of the general municipal law.
    25    c. The applicant is a not-for-profit corporation as defined in section
    26  one hundred two of the not-for-profit corporation law that is (i) eligi-
    27  ble for tax-exempt financing under this section and (ii) is exempt  from
    28  taxation  pursuant  to section 501(c)(3) of the federal internal revenue
    29  code, and either has (i) an equity position in the community  equivalent
    30  to  no  less  than  fifteen  percent of the amount to be financed in the
    31  aggregate; or (ii) covenants (A) to meet a ratio of cash and investments
    32  to outstanding debt (reserve ratio) of no less than twenty-five  percent
    33  commencing at the end of the first quarter after twenty-four months from
    34  the  receipt  of a certificate of occupancy for the facility, and (B) to
    35  maintain that reserve ratio, as tested quarterly based upon the  facili-
    36  ty's interim financial statements and annually based upon audited finan-
    37  cial  statements,  until  debt reduction equal to twenty-five percent of
    38  total indebtedness is accomplished; and (c)  to  reduce  total  debt  by
    39  twenty-five  percent  of  the total indebtedness at the time the certif-
    40  icate of occupancy is received by no later than  five  years  after  the
    41  receipt of the certificate of occupancy.
    42    d.  The operator has submitted in connection with the proposed financ-
    43  ing a financial feasibility study, including a  financial  forecast  and
    44  market  study  prepared by an independent firm nationally recognized for
    45  continuing care retirement community feasibility studies,  demonstrating
    46  to  the  satisfaction of the [council] commissioner the financial sound-
    47  ness of the financing. In addition, the operator has submitted an analy-
    48  sis  of  economic  costs  and  benefits,  including  job  creation   and
    49  retention, the estimated value of tax exemptions provided, the project's
    50  impact  on local businesses and the availability and comparative cost of
    51  alternative financing sources. Such analysis shall  be  prepared  by  an
    52  independent entity.
    53    e.  The  operator  will  establish  and  maintain  a fully funded debt
    54  service reserve equal to the sum of maximum annual debt service  (inter-
    55  est  plus  annual  scheduled  principal  payments, not including balloon
    56  maturities, if any) on bonds authorized thereby having a maturity of ten

        A. 8193                             7

     1  years or less, plus the maximum annual debt service on bonds  authorized
     2  thereby  having a maturity of greater than ten years, provided, however,
     3  that in the case of tax-exempt bond issues, such  debt  service  reserve
     4  shall not exceed the maximum amount permitted by federal tax law.
     5    f. The operator will provide for such remedies or limitations of reme-
     6  dies  of  bondholders  as  may  be  required  by  or consistent with the
     7  provisions of this article and any regulations in existence at the  time
     8  of the issuance promulgated thereunder.
     9    g.  Unless  all  residents or continuing care at home contract holders
    10  have life care contracts, the operator has adequately  made  the  assur-
    11  ances  required  by subdivision two of section forty-six hundred twenty-
    12  four of this article and has agreed to fund the liability in  the  event
    13  that such resident's or contract holder's assets are insufficient to pay
    14  for nursing facility services for a one year period.
    15    3. In addition, an operator which is subject to the provisions of this
    16  section shall:
    17    a.  provide  the [council or its designee] commissioner with notice of
    18  any monetary default or covenant default in connection with such financ-
    19  ing and shall further notify the [council or its designee]  commissioner
    20  of  any  withdrawal  from  the  debt service reserve fund established in
    21  connection with such financing;
    22    b. respond in writing to the operational recommendations of the [coun-
    23  cil or its designee] commissioner with respect to protecting the  inter-
    24  ests  of  continuing care retirement community residents in the event of
    25  any monetary default or covenant default provided for in connection with
    26  such financing;
    27    c. provide adequate security for the repayment of  the  bonds  issued,
    28  including  the  granting  of liens on real and personal property and the
    29  pledge of project revenues; the  maintenance  of  minimum  debt  service
    30  coverage  and other financial ratios as shall be required in regulations
    31  in existence at the time of issuance by the [council] commissioner;  and
    32  restrictions on other debt and expenditures; and
    33    d.  undertake  to  maintain the financial feasibility of the facility,
    34  including the retention of an independent consultant  to  recommend  and
    35  help implement remedial action.
    36    4.  The  [council]  commissioner  may  request, and shall receive, the
    37  technical assistance of any state agency or state  public  authority  in
    38  performing its functions under this article.
    39    § 7. Section 4605-a of the public health law, as added by chapter 7 of
    40  the laws of 2015, is amended to read as follows:
    41    § 4605-a. Certificate of authority; authority to offer continuing care
    42  at  home  contracts.    A continuing care retirement community may offer
    43  continuing care at home contracts upon approval by the [council] commis-
    44  sioner to amend the continuing care retirement  community's  certificate
    45  of authority. In order to qualify for an amendment to its certificate of
    46  authority,  the continuing care retirement community shall submit to the
    47  commissioner the following:
    48    1. a business plan  to  the  commissioner  [and  superintendent]  that
    49  includes the following:
    50    (a) a description of the continuing care at home services that will be
    51  provided,  the market that will be served by the continuing care at home
    52  contracts, and the fees to be charged to prospective continuing care  at
    53  home contract holders;
    54    (b) a copy of the proposed continuing care at home contract; and
    55    (c)  an  actuarial study prepared by an independent actuary in accord-
    56  ance with standards adopted by the American Academy of Actuaries  demon-

        A. 8193                             8
 
     1  strating the impact that the continuing care at home contracts will have
     2  on  the  overall  operations of the continuing care retirement community
     3  and further demonstrating that the addition of continuing care  at  home
     4  contracts  will  not jeopardize the financial solvency of the continuing
     5  care retirement community.
     6    2. a market feasibility study demonstrating to the  commissioner  [and
     7  superintendent]  sufficient consumer interest in continuing care at home
     8  contracts and further demonstrating that the addition of continuing care
     9  at home contracts will not have an adverse impact on  the  provision  of
    10  services to continuing care retirement contract holders.
    11    3.  materials  that meet all requirements established by the [New York
    12  state] department [of financial services].
    13    4. [A] a copy of the notification sent to continuing  care  retirement
    14  contract  holders  describing  the anticipated impact of the addition of
    15  continuing care at home contracts on continuing care retirement communi-
    16  ty resources and proof that such notification has  been  distributed  to
    17  all continuing care retirement contract holders.
    18    § 8. Section 4605-b of the public health law, as added by chapter 7 of
    19  the laws of 2015, is amended to read as follows:
    20    §  4605-b.  Certificate of authority; limitation on continuing care at
    21  home contracts.   The  number  of  continuing  care  at  home  contracts
    22  approved on a certificate of authority shall be limited to:
    23    1.  The number of approved living units on the continuing care retire-
    24  ment community's premises that are intended for  ILU  residents,  except
    25  that  the [council] commissioner may approve additional contracts upon a
    26  submission [to the commissioner] by  an  operator  consistent  with  the
    27  provisions  set  forth in section forty-six hundred five-a of this arti-
    28  cle;
    29    2. The demonstrated number of continuing care at home contract holders
    30  that can be supported in the existing or approved future capacity of the
    31  adult care facility and skilled nursing  facility  consistent  with  the
    32  provisions  set  forth in section forty-six hundred five-a of this arti-
    33  cle; and
    34    3. Conditions set forth by the [New York state] department [of  finan-
    35  cial  services],  based upon the [superintendent] commissioner's assess-
    36  ment of the following:
    37    (a) the overall financial impact on the community; and
    38    (b) the submitted materials set forth  in  section  forty-six  hundred
    39  five-a of this article.
    40    § 9. Section 4607 of the public health law, as added by chapter 689 of
    41  the laws of 1989, paragraph d of subdivision 2 as amended by chapter 659
    42  of the laws of 1997, is amended to read as follows:
    43    § 4607. Annual statement.  1. Within four months of close of the oper-
    44  ator's  fiscal year, unless an extension of time to file has been grant-
    45  ed, the operator shall file an annual statement  with  the  commissioner
    46  [and  superintendent]  showing  the  condition as of the last day of the
    47  preceding calendar or fiscal year. If the commissioner [and  superinten-
    48  dent do] does not receive the annual statement within four months of the
    49  end  of  the  operator's fiscal year or have not granted an extension of
    50  time to file, the [council] commissioner may charge a late fee.
    51    2. The annual statement shall be in such form as the [council] commis-
    52  sioner prescribes and shall contain at least the following:
    53    a. Any change in status with respect to the information required to be
    54  submitted pursuant to section forty-six hundred four of this article;

        A. 8193                             9

     1    b. Financial statements audited by  an  independent  certified  public
     2  accountant, which shall contain, for two or more periods if the communi-
     3  ty has been in existence that long, the following:
     4    (i) an accountant's opinion and, in accordance with generally accepted
     5  accounting principles:
     6    (A) a balance sheet,
     7    (B) a statement of income and expenses,
     8    (C) a statement of equity or fund balances,
     9    (D) a statement of changes in financial position,
    10    (ii)  notes to the financial statements considered customary or neces-
    11  sary to ensure full disclosure of the  financial  statements,  financial
    12  condition, and operation;
    13    c. A detailed listing of the assets maintained for the reserves;
    14    d.  A  copy  of  the  most  recent  actuarial review of the community,
    15  including such information as may be required  by  the  [superintendent]
    16  commissioner  including an opinion of a qualified consulting actuary, as
    17  to the current and projected soundness of the community, provided howev-
    18  er that a new actuarial review must be submitted triennially; and
    19    e. Such other reasonable financial and other information as the [coun-
    20  cil] commissioner may require with respect to the operator or the commu-
    21  nity, or its directors, controlling persons, trustees, members,  branch-
    22  es,  subsidiaries or affiliates to determine the financial status of the
    23  community and the management capabilities of the operator.
    24    3. Sixty days before commencement of each calendar or fiscal  year  or
    25  official opening date, whichever is applicable, each operator shall file
    26  with  the  commissioner [and superintendent] a computation of the annual
    27  long-term debt service and a projected annual revenue and expense summa-
    28  ry for the next ten years.
    29    § 10. Section 4658 of the public health law, as added by  chapter  519
    30  of the laws of 2004, is amended to read as follows:
    31    §  4658. Annual statement. 1. Within four months of close of an opera-
    32  tor's fiscal year, unless an extension of time to file has been granted,
    33  the operator shall file an annual statement with the commissioner  show-
    34  ing the condition as of the last day of the preceding calendar or fiscal
    35  year.  If  the commissioner does not receive the annual statement within
    36  four months of the end of the operator's fiscal year or has not  granted
    37  an extension of time to file, the council may charge a late fee.
    38    2. The annual statement shall be in such form as the [council] commis-
    39  sioner prescribes and shall contain at least the following:
    40    a. Any change in status with respect to the information required to be
    41  submitted  pursuant  to  section  forty-six  hundred fifty-seven of this
    42  article;
    43    b. Financial statements audited by  an  independent  certified  public
    44  accountant, which shall contain, for two or more periods if the communi-
    45  ty has been in existence that long, the following:
    46    (i)  notes  to the financial statements considered customary or neces-
    47  sary to ensure full disclosure of the  financial  statements,  financial
    48  condition, and operation; and
    49    (ii)  an  accountant's  opinion  and,  in  accordance  with  generally
    50  accepted accounting principles: (A) a balance sheet, (B) a statement  of
    51  income and expenses, (C) a statement of equity or fund balances, and (D)
    52  a statement of changes in financial position;
    53    c. A detailed listing of the assets maintained for the reserves; and
    54    d. Such other reasonable financial and other information as the [coun-
    55  cil] commissioner may require with respect to the operator or the commu-
    56  nity,  or its directors, controlling persons, trustees, members, branch-

        A. 8193                            10
 
     1  es, subsidiaries or affiliates to determine the financial status of  the
     2  community and the management capabilities of the operator.
     3    3.  Sixty  days before commencement of each calendar or fiscal year or
     4  official opening date, whichever is applicable, each operator shall file
     5  with the commissioner a computation of the annual long-term debt service
     6  and a projected annual revenue and expense  summary  for  the  next  ten
     7  years.
     8    §  11.  Subdivision  16  of  section 4608 of the public health law, as
     9  amended by chapter 7 of the laws of 2015, is amended to read as follows:
    10    16. A statement that any amendment to the contract and any  change  in
    11  fees  or  charges, other than those within the guidelines of an approved
    12  rating system, must be approved  by  the  [superintendent  of  financial
    13  services] commissioner;
    14    §  12.  Subdivisions 1 and 2 of section 4614 of the public health law,
    15  as amended by chapter 7 of the laws of 2015,  are  amended  to  read  as
    16  follows:
    17    1.  The  commissioner, or designee[; and the superintendent, or desig-
    18  nee;] may at any time, and shall at least once every three years,  visit
    19  each  community  and examine the business of any applicant for a certif-
    20  icate of authority and any operator engaged in the execution of continu-
    21  ing care retirement contracts or continuing care at  home  contracts  or
    22  engaged  in the performance of obligations under such contracts. Routine
    23  examinations may be conducted by  having  documents  designated  by  and
    24  submitted  to such [commissioners or superintendent] commissioner, which
    25  shall include financial documents and  records  conforming  to  commonly
    26  accepted  accounting  principles and practices. The final written report
    27  of each such examination conducted by such [commissioners or superinten-
    28  dent] commissioner shall be filed with the  commissioner  and,  when  so
    29  filed,  shall constitute a public record. A copy of each report shall be
    30  provided to members of the continuing care retirement community council.
    31  Any operator being examined shall, upon  request,  give  reasonable  and
    32  timely  access  to  all  of  its records. The representative or examiner
    33  designated  by  the  [commissioners  or  superintendent,  respectively,]
    34  commissioner  may,  at  any  time,  examine  the records and affairs and
    35  inspect the community's facilities, whether in connection with a  formal
    36  examination or not.
    37    2.  Any  duly  authorized  officer, employee, or agent of the [health]
    38  department[, or department of financial services] may, upon presentation
    39  of proper identification, have access to, and inspect, any records main-
    40  tained by the community relevant to the [respective] agency's regulatory
    41  authority, with or without advance notice, to secure compliance with, or
    42  to prevent a violation of, any provision of this article.
    43    § 13. Subdivision 1 of section 4667 of the public health law, as added
    44  by chapter 519 of the laws of 2004, is amended to read as follows:
    45    1. The commissioner[, or his or her designee,] may at  any  time,  and
    46  shall  at least once every three years, visit each community and examine
    47  the business of any applicant for a certificate  of  authority  and  any
    48  operator  engaged  in  the  execution of fee-for-service continuing care
    49  contracts or engaged  in  the  performance  of  obligations  under  such
    50  contracts.  Routine  examinations  may  be conducted by having documents
    51  designated by and submitted to the  commissioner,  which  shall  include
    52  financial documents and records conforming to commonly accepted account-
    53  ing  principles  and  practices.  The  final written report of each such
    54  examination conducted by  the  commissioner  shall  be  filed  with  the
    55  commissioner  and,  when  so  filed, shall constitute a public record. A
    56  copy of each report shall be provided to members of the continuing  care

        A. 8193                            11
 
     1  retirement  community  council.  Any operator being examined shall, upon
     2  request, give reasonable and timely access to all of  its  records.  The
     3  representative  or  examiner  designated by the commissioner may, at any
     4  time, examine the records and affairs and inspect the community's facil-
     5  ities, whether in connection with a formal examination or not.
     6    §  14.  Section 4615 of the public health law, as added by chapter 689
     7  of the laws of 1989, paragraph j of subdivision 1 as further amended  by
     8  section  104 of part A of chapter 62 of the laws of 2011, paragraph k of
     9  subdivision 1 as amended by chapter 7 of the laws of 2015  and  subdivi-
    10  sion 3 as amended by chapter 659 of the laws of 1997, is amended to read
    11  as follows:
    12    § 4615. Revocation, suspension or annulment of certificate of authori-
    13  ty.    1. The [council] commissioner may revoke, suspend, limit or annul
    14  the certificate of authority of an operator upon proof that:
    15    a. The operator failed to continue to meet the  requirements  for  the
    16  authority originally granted;
    17    b.  The  operator  lacked  one  or  more of the qualifications for the
    18  certificate of authority as specified by this article;
    19    c. The operator made a material  misstatement,  misrepresentation,  or
    20  committed  fraud  in  obtaining  the  certificate  of  authority,  or in
    21  attempting to obtain the same;
    22    d. The operator lacked fitness or was untrustworthy;
    23    e. The operator  engaged  in  fraudulent  or  dishonest  practices  of
    24  management  in the conduct of business under the certificate of authori-
    25  ty;
    26    f. The operator converted or withheld funds;
    27    g. The operator failed to comply with, or violated, any proper  order,
    28  rule  or  regulation  of  the  council or violated any provision of this
    29  article;
    30    h. The unsound business practices of the operator renders its  further
    31  transactions in this state hazardous or injurious to the public;
    32    i. The operator has refused to be examined or to produce its accounts,
    33  records,  and  files  for  examination,  or  its officers, employees, or
    34  controlling persons have refused to give information with respect to the
    35  affairs of the community or to perform any other legal obligation as  to
    36  such examination;
    37    j.  The [superintendent of financial services] commissioner has made a
    38  determination that the operator  is  insolvent  within  the  meaning  of
    39  section one thousand three hundred nine of the insurance law; or
    40    k. The commissioner has found violations of applicable statutes, rules
    41  or  regulations which threaten to affect directly the health, safety, or
    42  welfare of a resident.
    43    2. No certificate of authority shall be revoked, suspended, limited or
    44  annulled without a hearing, except that a certificate of  authority  may
    45  be  temporarily suspended or limited prior to a hearing for a period not
    46  in excess of sixty days upon written notice to the operator following  a
    47  finding by the commissioner that the public health or safety is in immi-
    48  nent  danger  or  there exists any condition or practice or a continuing
    49  pattern of conditions or practices that pose an imminent danger  to  the
    50  health or safety of any resident. Any delay in the hearing process occa-
    51  sioned  by  the  operator  shall  toll the running of said suspension or
    52  limitation and shall not abridge the full time provided in this subdivi-
    53  sion.
    54    3. Any state agency which seeks to revoke, suspend, limit or annul the
    55  certificate of authority or any other license or certificate required to
    56  be obtained by an operator of a  continuing  care  retirement  community

        A. 8193                            12
 
     1  pursuant  to law, shall request the [council] commissioner to commence a
     2  hearing pursuant to this section.
     3    4. The [council] commissioner shall fix a time and place for the hear-
     4  ing.  The  commissioner  shall cause to be served in person or mailed by
     5  registered or certified mail to the operator at least  ten  days  before
     6  the  date fixed for the hearing a copy of the charges, together with the
     7  notice of the time and place of the hearing.  The  operator  shall  file
     8  with  the  commissioner  not less than three days prior to the hearing a
     9  written answer to the charges. The agency which initiated the proceeding
    10  shall be responsible for providing evidence in support of the charges to
    11  the commissioner in order to prepare a statement of  charges  and  shall
    12  provide evidence in support of the charges at the hearing.
    13    5.  All  orders  hereunder  shall  be subject to review as provided in
    14  article seventy-eight of the civil practice law and  rules.  Application
    15  for  such  review must be made within sixty days after service in person
    16  or by registered or certified mail of a copy of the order upon the oper-
    17  ator.
    18    § 15. Section 4616 of the public health law, as added by  chapter  689
    19  of  the laws of 1989, the opening paragraph as amended by chapter 659 of
    20  the laws of 1997, is amended to read as follows:
    21    § 4616. Appointment of a caretaker. Upon a determination by the [coun-
    22  cil] commissioner  that  there  exists  operational  deficiencies  in  a
    23  continuing care retirement community that show:
    24    1. a condition or conditions in substantial violation of the standards
    25  for  health,  safety  or patient care established under federal or state
    26  law or regulations; or
    27    2. [or] that there exists in the facility a  pattern  or  practice  of
    28  habitual  violation  of  the standards of health, safety or patient care
    29  established under federal or state law  or  regulations,  the  [council]
    30  commissioner  shall  take  the  actions  prescribed by section forty-six
    31  hundred fifteen of this article, and, where the  [council]  commissioner
    32  deems it to be in the public interest, the [council may request that the
    33  commissioner, and upon request of the council the] commissioner shall[,]
    34  petition  a  court  of  competent jurisdiction to appoint a caretaker as
    35  defined in section twenty-eight hundred one of this chapter.  The  peti-
    36  tion, the proceedings, and the procedures for appointment of a caretaker
    37  shall  be governed by the provisions of section forty-six hundred seven-
    38  teen of this article, and the powers, duties and rights of  a  caretaker
    39  appointed pursuant to such section shall be the same as those authorized
    40  by subdivision four of such section.
    41    §  16.  Subdivisions  1,  2 and 8 of section 4617 of the public health
    42  law, subdivision 1 as amended by chapter 659 of the laws  of  1997,  and
    43  subdivisions  2  and  8 as added by chapter 689 of the laws of 1989, are
    44  amended to read as follows:
    45    1. The [council] commissioner may, [if it determines] upon a  determi-
    46  nation  that serious operational deficiencies exist or serious financial
    47  problems exist and such action is desirable,  enter  into  an  agreement
    48  with  the  operator  or owners of a continuing care retirement community
    49  with respect to the appointment of a receiver  to  take  charge  of  the
    50  community  under conditions as found acceptable by both parties. Receiv-
    51  ership commenced in accordance with the provisions of  this  subdivision
    52  shall  terminate  at  such  time  as may be provided in the receivership
    53  agreement, or at such time as either party notifies the other in writing
    54  that it wishes to terminate such receivership.
    55    2. [Upon request of the council, the] The commissioner shall,  at  the
    56  time  of revocation, suspension or temporary suspension of a certificate

        A. 8193                            13
 
     1  of authority, apply to the supreme court where the community is situated
     2  for an order directing the owner of the land and/or structure on  or  in
     3  which  the community is located, to show cause why a receiver should not
     4  be  appointed to take charge of the community.  In those cases where the
     5  certificate of authority has  been  revoked,  suspended  or  temporarily
     6  suspended,  the  supreme  court  shall  appoint  a  receiver that, where
     7  reasonably possible, is a legal entity that holds a valid certificate of
     8  authority. Such application shall contain proof by  affidavit  that  the
     9  facility  has  had  its  certificate of authority revoked, suspended, or
    10  temporarily suspended. Such order to show cause shall be returnable  not
    11  less  than  five  days  after service is completed and shall provide for
    12  personal service of a copy thereof and the papers on which it is  based,
    13  on  the owner or owners of the land and/or structures on or in which the
    14  community is located. If any such owner  and  manager  cannot  with  due
    15  diligence  be  served personally within the county where the property is
    16  located and within the time fixed in such order,  then  service  may  be
    17  made  on  such  person  by posting a copy thereof in a conspicuous place
    18  within the community in question, and  by  sending  a  copy  thereof  by
    19  registered  mail,  return  receipt  requested, to such owner at the last
    20  address registered by him with the department or in the absence of  such
    21  registration  to  the  address  set forth in the last recorded deed with
    22  respect to the facility. Service shall  be  deemed  complete  on  filing
    23  proof of service thereof in the office of the county clerk, or the clerk
    24  of the city of New York, as the case may be.
    25    8.  Any other provision of this article notwithstanding, the [council]
    26  commissioner may, if [it] he or she  deems  appropriate,  grant  to  any
    27  community operating or scheduled to operate under a receivership author-
    28  ized  by  this section a certificate of authority, the duration of which
    29  shall be limited to the duration of the receivership.
    30    § 17. Section 4668 of the public health law, as added by  chapter  519
    31  of the laws of 2004, is amended to read as follows:
    32    § 4668. Revocation, suspension or annulment of certificate of authori-
    33  ty.  1.  The  [council] commissioner may revoke, suspend, limit or annul
    34  the certificate of authority of an operator upon proof that:
    35    a. The operator failed to continue to meet the  requirements  for  the
    36  authority originally granted;
    37    b.  The  operator  lacked  one  or  more of the qualifications for the
    38  certificate of authority as specified by this article;
    39    c. The operator made a material  misstatement,  misrepresentation,  or
    40  committed  fraud  in  obtaining  the  certificate  of  authority,  or in
    41  attempting to obtain the same;
    42    d. The operator lacked fitness or was untrustworthy;
    43    e. The operator  engaged  in  fraudulent  or  dishonest  practices  of
    44  management  in the conduct of business under the certificate of authori-
    45  ty;
    46    f. The operator converted or withheld funds;
    47    g. The operator failed to comply with, or violated, any proper  order,
    48  rule  or  regulation  of  the  council or violated any provision of this
    49  article;
    50    h. The unsound business practices of the operator renders its  further
    51  transactions in this state hazardous or injurious to the public;
    52    i. The operator has refused to be examined or to produce its accounts,
    53  records  and  files  for  examination,  or  its  officers,  employees or
    54  controlling persons have refused to give information with respect to the
    55  affairs of the community or to perform any other legal obligation as  to
    56  such examination; or

        A. 8193                            14
 
     1    j. The commissioner has found violations of applicable statutes, rules
     2  or  regulations which threaten to affect directly the health, safety, or
     3  welfare of a resident of a fee-for-service  continuing  care  retirement
     4  community.
     5    2. No certificate of authority shall be revoked, suspended, limited or
     6  annulled  without  a hearing, except that a certificate of authority may
     7  be temporarily suspended or limited prior to a hearing for a period  not
     8  in  excess of sixty days upon written notice to the operator following a
     9  finding by the commissioner that public health or safety is in  imminent
    10  danger or there exists any condition or practice or a continuing pattern
    11  of conditions or practices that pose an imminent danger to the health or
    12  safety  of  any resident. Any delay in the hearing process occasioned by
    13  the operator shall toll the running of said suspension or limitation and
    14  shall not abridge the full time provided in this subdivision.
    15    3. Any state agency which seeks to revoke, suspend, limit or annul the
    16  certificate of authority or any other license or certificate required to
    17  be obtained by an operator of a community pursuant to law, shall request
    18  the [council] commissioner  to  commence  a  hearing  pursuant  to  this
    19  section.
    20    4. The [council] commissioner shall fix a time and place for the hear-
    21  ing.  The  commissioner  shall cause to be served in person or mailed by
    22  registered or certified mail to the operator at least  ten  days  before
    23  the  date fixed for the hearing a copy of the charges, together with the
    24  notice of the time and place of the hearing.  The  operator  shall  file
    25  with  the  commissioner  not less than three days prior to the hearing a
    26  written answer to the charges. The agency which initiated the proceeding
    27  shall be responsible for providing evidence in support of the charges to
    28  the commissioner in order to prepare a statement of  charges  and  shall
    29  provide evidence in support of the charges at the hearing.
    30    5.  All  orders pursuant to this section shall be subject to review as
    31  provided in article seventy-eight of the civil practice law  and  rules.
    32  Application  for  such  review  shall  be  made  within sixty days after
    33  service in person or by registered or certified mail of a  copy  of  the
    34  order upon the operator.
    35    §  18.  Section 4669 of the public health law, as added by chapter 519
    36  of the laws of 2004, is amended to read as follows:
    37    § 4669. Appointment of a caretaker.    Upon  a  determination  by  the
    38  [council]  commissioner  that there exists operational deficiencies in a
    39  fee-for-service continuing care retirement community that show:
    40    1. there exists in the facility a  pattern  or  practice  of  habitual
    41  violation of the standards of health, safety or patient care established
    42  under  federal  or  state law or regulations, the [council] commissioner
    43  shall take the actions prescribed by section  forty-six  hundred  sixty-
    44  eight of this article, and, where the [council] commissioner deems it to
    45  be  in  the  public interest, the [council may request the commissioner,
    46  and upon request of the council the] commissioner  shall[,]  petition  a
    47  court  of  competent  jurisdiction  to appoint a caretaker as defined in
    48  section twenty-eight hundred one of  this  chapter.  The  petition,  the
    49  proceedings,  and the procedures for appointment of a caretaker shall be
    50  governed by the provisions of section forty-six hundred seventy of  this
    51  article,  and  the  power,  duties  and  rights of a caretaker appointed
    52  pursuant to such section shall be the same as those authorized by subdi-
    53  vision four of such section; or
    54    2. a condition or conditions in substantial violation of the standards
    55  for health, safety or patient care established under  federal  or  state
    56  law or regulations.

        A. 8193                            15
 
     1    §  19.  Subdivisions  1,  2 and 8 of section 4670 of the public health
     2  law, as added by chapter 519 of the laws of 2004, are amended to read as
     3  follows:
     4    1.  The [council] commissioner may, [if it determines] upon a determi-
     5  nation that serious operational deficiencies exist or serious  financial
     6  problems  exist  and  such  action is desirable, enter into an agreement
     7  with the operator or owners of a fee-for-service continuing care retire-
     8  ment community with respect to the appointment of  a  receiver  to  take
     9  charge  of  the  community  under conditions as found acceptable by both
    10  parties.  Receivership commenced in accordance with  the  provisions  of
    11  this  subdivision shall terminate at such time as may be provided in the
    12  receivership agreement, or at such time as  either  party  notifies  the
    13  other in writing that it wishes to terminate such receivership.
    14    2.  [Upon  request of the council, the] The commissioner shall, at the
    15  time of revocation, suspension or temporary suspension of a  certificate
    16  of authority, apply to the supreme court where the community is situated
    17  for  an  order directing the owner of the land and/or structure on or in
    18  which the community is located, to show cause why a receiver should  not
    19  be  appointed  to take charge of the community. In those cases where the
    20  certificate of authority has  been  revoked,  suspended  or  temporarily
    21  suspended,  the  supreme  court  shall  appoint  a  receiver that, where
    22  reasonably possible, is a legal entity that holds a valid certificate of
    23  authority. Such application shall contain proof by  affidavit  that  the
    24  facility  has  had  its  certificate  of authority revoked, suspended or
    25  temporarily suspended. Such order to show cause shall be returnable  not
    26  less  than  five  days  after service is completed and shall provide for
    27  personal service of a copy thereof and the papers on which it is  based,
    28  on  the owner or owners of the land and/or structures on or in which the
    29  community is located. If any such owner  and  manager  cannot  with  due
    30  diligence  be  served personally within the county where the property is
    31  located and within the time fixed in such order,  then  service  may  be
    32  made  on  such  person  by posting a copy thereof in a conspicuous place
    33  within the community in question, and  by  sending  a  copy  thereof  by
    34  registered  mail,  return  receipt  requested, to such owner at the last
    35  address registered by him or her with the department or in  the  absence
    36  of  such registration to the address set forth in the last recorded deed
    37  with respect to the facility. Service shall be deemed complete on filing
    38  proof of service thereof in the office of the county clerk, or the clerk
    39  of the city of New York, as the case may be.
    40    8. Any other provision of this article notwithstanding, the  [council]
    41  commissioner  may,  if  [it]  he  or she deems appropriate, grant to any
    42  community operating or scheduled to operate under a receivership author-
    43  ized by this section a certificate of authority, the duration  of  which
    44  shall be limited to the duration of the receivership.
    45    §  20.  Paragraph  g  of  subdivision  4 of section 4621 of the public
    46  health law, as added by chapter 406 of the laws of 1991, is  amended  to
    47  read as follows:
    48    g.  If  the  funds  in  an  escrow account under this section, and any
    49  interest thereon, are not released to the applicant within such time  as
    50  provided by rules and regulations adopted by the [council] commissioner,
    51  then  such funds shall be returned by the escrow agent to the person who
    52  had made the payments or the person's legal representative.
    53    § 21. Subdivision 1 of section 4623  of  the  public  health  law,  as
    54  amended  by  chapter  659  of  the  laws  of 1997, is amended to read as
    55  follows:

        A. 8193                            16

     1    1. The [council] commissioner may approve an application for a certif-
     2  icate of authority and [the commissioner] may  issue  a  certificate  of
     3  authority  for  the  establishment  and  operation  of a continuing care
     4  retirement community under an arrangement which otherwise complies  with
     5  the requirements of this article except that the costs of nursing facil-
     6  ity or home health care services are paid for in whole or in part by (a)
     7  long  term  care  insurance  obtained and paid for by the resident or by
     8  medical assistance payments in accordance with the partnership for  long
     9  term care program pursuant to section three hundred sixty-seven-f of the
    10  social  services  law and section three thousand two hundred twenty-nine
    11  of the insurance law or (b) other group or  individual  long  term  care
    12  insurance  approved  by the superintendent and the council in connection
    13  with the application. The council, in consultation with the  superinten-
    14  dent,  shall  provide  for  adequate  disclosure  to  residents of their
    15  options, rights and obligations under such  an  arrangement,  and  shall
    16  establish  standards  for  the remittance and collection of premiums and
    17  monthly care fees.
    18    § 22. The opening paragraph of subdivision 14 and  subdivision  15  of
    19  section  4657  of  the public health law, as added by chapter 519 of the
    20  laws of 2004, are amended to read as follows:
    21    In accordance with regulations promulgated by  the  [council]  commis-
    22  sioner, the operator shall prepare a standard information sheet for each
    23  approved  fee-for-service  continuing  care  retirement community, which
    24  must be approved by the department,  distributed  with  the  community's
    25  marketing  materials  and  attached  to the initial disclosure statement
    26  prepared in accordance with this section. The standard information sheet
    27  shall be prepared in plain language and in twelve point type  and  shall
    28  include, but shall not be limited to the following information:
    29    15. Any other information as may be required by regulations promulgat-
    30  ed by the [council] commissioner.
    31    §  23.  The  opening  paragraph  and  paragraph  d of subdivision 2 of
    32  section 4658 of the public health law, as added by chapter  519  of  the
    33  laws of 2004, are amended to read as follows:
    34    The  annual  statement  shall be in such form as the [council] commis-
    35  sioner prescribes and shall contain at least the following:
    36    d. Such other reasonable financial and other information as the [coun-
    37  cil] commissioner may require with respect to the operator or the commu-
    38  nity, or its directors, controlling persons, trustees, members,  branch-
    39  es,  subsidiaries or affiliates to determine the financial status of the
    40  community and the management capabilities of the operator.
    41    § 24. Subdivision 2 of section 4651 of the public health law, as added
    42  by chapter 519 of the laws of 2004, is amended to read as follows:
    43    2. "Certificates" or "certificate of authority" shall mean an authori-
    44  zation in writing, approved [by the council] and issued by  the  commis-
    45  sioner,  for  an  operator  to operate a fee-for-service continuing care
    46  retirement community and to enter into fee-for-service  continuing  care
    47  contracts pertaining to such community.
    48    § 25. Section 4654 of the public health law, as amended by chapter 545
    49  of the laws of 2004, is amended to read as follows:
    50    §  4654.  Authorization  of fee-for-service continuing care retirement
    51  communities.  The commissioner[, upon approval of  the  continuing  care
    52  retirement community council,] shall approve up to eight fee-for-service
    53  continuing  care  retirement  communities  to  encourage affordable care
    54  options for middle income seniors, up to two of which may be operated by
    55  a for-profit entity.

        A. 8193                            17
 
     1    § 26. The opening paragraph of section 4659 of the public health  law,
     2  as  added  by  chapter  519  of  the laws of 2004, is amended to read as
     3  follows:
     4    A  fee-for-service  continuing  care contract shall contain all of the
     5  following information in no less than twelve point  type  and  in  plain
     6  language, in addition to any other terms or matter as may be required by
     7  regulations [adopted by the council and] issued by the commissioner:
     8    §  27.  The  opening paragraph of subdivision 5 of section 4655 of the
     9  public health law, as amended by chapter 545 of the  laws  of  2004,  is
    10  amended to read as follows:
    11    If  the  [approvals]  applicant has satisfied the criteria required by
    12  subdivision four-a of this section have  been  obtained,  the  [council]
    13  commissioner  shall[,  by  majority  vote,] either approve or reject the
    14  application [within sixty days of  the  date  on  which  the  last  such
    15  approval  has  been  obtained]. In order to approve the application, the
    16  [council] commissioner shall have determined that:
    17    § 28. Subdivisions 6 and 8 of section 4655 of the public  health  law,
    18  as  added  by  chapter  519  of the laws of 2004, are amended to read as
    19  follows:
    20    6. Any change  in  the  legal  entity  operating  the  fee-for-service
    21  continuing  care retirement community, or in a controlling person of the
    22  community shall require approval in  the  same  manner  as  an  original
    23  application;  provided,  however,  that  the  [council] commissioner may
    24  waive any requirement to provide information that  is  not  relevant  to
    25  such  change  and  provided, further, that the continued public need for
    26  the community shall be presumed.
    27    8. [If the council approves the  application,  the]  The  commissioner
    28  shall issue a certificate of authority to the applicant upon approval of
    29  the application.
    30    §  29.  Section 4611 of the public health law, as added by chapter 689
    31  of the laws of 1989, the opening paragraph of subdivision 1  as  further
    32  amended  by  section 104 of part A of chapter 62 of the laws of 2011, is
    33  amended to read as follows:
    34    § 4611. Reserves and supporting assets.  1. An operator shall maintain
    35  reserve liabilities and supporting assets  in  an  amount  and  for  the
    36  purposes  set  forth  in  a  regulation issued by the [superintendent of
    37  financial services] commissioner.  Liquid assets must be maintained  for
    38  the following reserve liabilities:
    39    a.  Principal  and interest payments and payments for taxes and insur-
    40  ance for up to twelve months;
    41    b. Total estimated operating costs for up to six months as set by  the
    42  [superintendent] commissioner;
    43    c. Repairs and replacements for up to twelve months; and
    44    d.  In  addition,  the amount of liquid assets must meet any cash flow
    45  requirements and conditions as set forth in a regulation.
    46    2. The assets in support of reserve liabilities of subdivision one  of
    47  this section shall meet quantitative and qualitative standards set forth
    48  in regulations issued by the [superintendent] commissioner.
    49    §  30.  This  act  shall  take effect on the one hundred eightieth day
    50  after it shall have become a law.  Effective immediately, the  addition,
    51  amendment  and/or  repeal  of  any  rule or regulation necessary for the
    52  implementation of this act on its effective date are  authorized  to  be
    53  made and completed on or before such effective date.
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