Bill Text: NY S01803 | 2019-2020 | General Assembly | Amended
Bill Title: Promotes efficient and effective oversight of continuing care retirement communities.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Vetoed) 2019-11-25 - VETOED MEMO.157 [S01803 Detail]
Download: New_York-2019-S01803-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1803--A 2019-2020 Regular Sessions IN SENATE January 16, 2019 ___________ Introduced by Sen. RIVERA -- read twice and ordered printed, and when printed to be committed to the Committee on Health -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 council10is hereby established, to consist of the following, or their designees:11the attorney general; the commissioner; the director of the office for12the aging; and eight public members appointed by the governor with the13advice and consent of the senate. Such public members shall be represen-14tative of the public, and have a demonstrated expertise or interest in15continuing care retirement communities; provided that no more than one16such member shall be a sponsor, owner, operator, manager, member of a17board of directors, or shareholder of a continuing care retirement18community. At least two public members shall be residents of a continu-19ing care retirement community. At least one of the public members shall20be a representative of an organization with demonstrated experience in21representing the interests of senior citizens. The public members of the22council shall have fixed terms of four years. The council shall be23chaired by the commissioner or his or her designee.24Members of such council shall serve without compensation for their25services as members of the council, except that each of them may beEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03963-02-9S. 1803--A 2 1allowed the necessary and actual expenses which he shall incur in the2performance of his duties under this article.32. The council shall meet as often as may be deemed necessary to4fulfill its responsibilities.] The [council] commissioner shall have the 5 following powers and duties: 6 a. to receive applications from potential operators of continuing care 7 retirement communities and to distribute such applications for review to 8 the participating agencies; 9 b. to develop uniform forms for applications for certificates of 10 authority, to review the status of such applications, and to coordinate 11 the review of such applications in order to minimize duplication or 12 delay; 13 c. to provide information to entities wishing to establish continuing 14 care retirement communities and to persons interested in becoming resi- 15 dents of such communities, to the extent appropriate, with concerns 16 relating to the operation of such facilities; 17 d. to issue certificates of authority to approved applicants; 18 e. to approve or reject applications to obtain a certificate of 19 authority for the establishment and operation of a continuing care 20 retirement community. In reviewing applications, the [council] commis- 21 sioner shall consider the extent to which the applications reflect vari- 22 ous sponsorships, organizational structures, geographic dispersion, and 23 the public benefit. In determining the public benefit of a community 24 requiring construction of a total nursing facility component greater 25 than or equal to ninety beds, the [council] commissioner shall obtain 26 and consider the recommendation of the [state hospital review] public 27 health and health planning council with regard to the effect of the 28 construction of the community's nursing facility beds upon existing 29 facilities in the same geographic area; 30 [b.] f. to require the reporting of such facts and information as the 31 [council] commissioner may deem necessary to enforce the provisions of 32 this article; 33 [c.] g. to coordinate the oversight of operating communities and to 34 assign review and regulatory responsibility for particular aspects of 35 such communities to the appropriate agencies, consistent with their 36 legal authority, to assure consistent state supervision without dupli- 37 cation of inspection or regulatory review; 38 [d.] h. to make such recommendations to the governor and the legisla- 39 ture as may be necessary to encourage or further regulate the develop- 40 ment of continuing care retirement communities; 41 [e.] i. to establish and charge equitable and reasonable annual charg- 42 es for operators, not to exceed fifty dollars per approved living unit, 43 to subsidize, in part, expenditures incurred in reviewing applications 44 for certificates of authority and in inspecting, regulating, supervising 45 and auditing continuing care retirement communities; 46 [f. to review reports from the participating agencies regarding the47operations and financial management of approved communities, including48any reports regarding the financial condition of any community that may49be in need of close supervision and any reports of deficiencies in the50provision of health or social services to residents of any community;51g.] j. to adopt rules and regulations and amendments thereto to effec- 52 tuate the provisions of this article; 53 [h.] k. to revoke, suspend, limit, or annul a certificate of authority 54 under conditions set forth in section forty-six hundred fifteen of this 55 article, including when such action is taken at the specific request of 56 any participating council agency. [When action has been taken by theS. 1803--A 3 1commissioner pursuant to subdivision seven of section forty-six hundred2three of this article, the council shall meet as soon as reasonably3possible to approve or disapprove the action of the commissioner and4shall take such further action as may be appropriate;5i. to develop guidelines for applications for certificates of authori-6ty;7j.] l. to carry out any other responsibilities entrusted to the 8 commissioner pursuant to this chapter that may be necessary with regard 9 to the health care activities of continuing care retirement communities; 10 m. to make available to all prospective operators all pertinent regu- 11 lations regarding health and insurance necessary to comply with this 12 article; 13 n. to [make a final determination regarding an application] approve or 14 reject applications for authorization by prospective continuing care 15 retirement community applicants, entities that have filed an application 16 for a certificate of authority and operators, to enter into cancellable 17 priority reservation agreements [where the commissioner has proposed to18reject such application] and to collect refundable priority reservation 19 fees from prospective residents; 20 [k.] o. to require the reporting of such facts and information as the 21 [council] commissioner may deem necessary to determine whether charac- 22 teristics of residential health care demonstration facilities such as 23 comprehensive systems of residential and support services for the elder- 24 ly may be successfully incorporated into existing or approved continuing 25 care retirement communities; 26 [l.] p. to review and approve or reject applications by continuing 27 care retirement community operators to use entrance fees to assist the 28 operator in financing the construction or purchase of a proposed contin- 29 uing care retirement community in accordance with paragraph b of subdi- 30 vision six of section forty-six hundred ten of this article; and 31 [m.] q. to review and approve or reject any proposed financing by 32 industrial development agencies of continuing care retirement communi- 33 ties pursuant to article eighteen-A of the general municipal law as 34 authorized by section forty-six hundred four-a of this article. 35 [3. The council shall establish guidelines under which the commission-36er is authorized to approve or reject any proposed refinancing, if the37council has already approved an application pursuant to paragraph a of38subdivision two of this section.] 39 § 2. Section 4603 of the public health law is REPEALED and a new 40 section 4603 is added to read as follows: 41 § 4603. Continuing care retirement community council; powers and 42 duties. 1. The continuing care retirement community council is hereby 43 established, to consist of the following, or their designees: the attor- 44 ney general; the commissioner; the director of the office for the aging; 45 and eight public members appointed by the governor with the advice and 46 consent of the senate. Such public members shall be representative of 47 the public, and have a demonstrated expertise or interest in continuing 48 care retirement communities; provided that no more than one such member 49 shall be a sponsor, owner, operator, manager, member of a board of 50 directors, or shareholder of a continuing care retirement community. At 51 least two public members shall be residents of a continuing care retire- 52 ment community. At least one of the public members shall be a represen- 53 tative of an organization with demonstrated experience in representing 54 the interests of senior citizens. The public members of the council 55 shall have fixed terms of four years. The council shall be chaired by 56 the commissioner or his or her designee.S. 1803--A 4 1 Members of such council shall serve without compensation for their 2 services as members of the council, except that each of them may be 3 allowed the necessary and actual expenses which he or she shall incur in 4 the performance of his/her or their duties under this article. 5 2. The council shall meet as often as may be deemed necessary to 6 fulfill its responsibilities. The council shall have the following 7 powers and duties: 8 a. to assist the commissioner on policy matters related to the estab- 9 lishment and operation of continuing care retirement communities; 10 b. to assist the commissioner in the development of the state's over- 11 all policy regarding continuing care retirement communities and cause 12 studies and research to be conducted as it may deem advisable and neces- 13 sary; and 14 c. to make such recommendations to the governor and the legislature as 15 may be necessary to encourage or further regulate the development of 16 continuing care retirement communities. 17 § 3. Subdivision 4 of section 4604 of the public health law, as 18 amended by chapter 659 of the laws of 1997, subparagraphs (i), (ii) and 19 (iii) of paragraph a as further amended by section 104 of part A of 20 chapter 62 of the laws of 2011, paragraphs b and d as amended by chapter 21 549 of the laws of 2014, and paragraph c as amended by chapter 7 of the 22 laws of 2015, is amended to read as follows: 23 4. No certificate of authority shall be issued unless the commissioner 24 has approved an application meeting the requirements of this section and 25 all other requirements established by law [has been approved by] includ- 26 ing: 27 a. [(i)] the [superintendent of financial services as to the] actuari- 28 al principles involved, the financial feasibility of the facility, the 29 form and content of the proposed contracts to be entered into with resi- 30 dents and insurance contracts between an operator and an insurer requir- 31 ing the insurer to assume, wholly or in part, the cost of medical or 32 health related services to be provided to a resident, provided that the 33 review may be conducted by the commissioner or his or her designee, 34 including any necessary independent actuarial review; 35 [(ii) the superintendent of financial services as to] b. the rates and 36 rating methodology, if any, to be used by the operator to determine any 37 entrance fee, monthly care fee and/or any separate charges for the hous- 38 ing component of the continuing care contract including but not limited 39 to a cooperative or condominium fee charged to the resident as proposed 40 in said operator's application for certificate of authority. Subsequent 41 increases in any entrance or monthly care fee in excess of fees calcu- 42 lated pursuant to the approved rating methodology shall require approval 43 of the [superintendent] commissioner. The term "rating methodology" as 44 used herein shall incorporate a combination of variables including but 45 not limited to a pricing structure for comparable services, projected 46 operating and health care costs and the applicable inflationary impact 47 thereon, projected income and occupancy rates and the refundability 48 component of the continuing care retirement contract[.49(iii) the superintendent of financial services as to]; 50 c. any monthly care fee charged to a resident which may be increased 51 or decreased subject to approval by the [superintendent of financial52services] commissioner, provided, that monthly care fees may be 53 increased or decreased without specific approval as long as such 54 increase or decrease does not exceed a relevant cost index or indices 55 which reflect all components of continuing care including the costs 56 associated with provision of health care as determined and promulgatedS. 1803--A 5 1 at least annually by the [superintendent] commissioner or his or her 2 designee, including any necessary independent actuarial review, and 3 provided further that the [superintendent] commissioner is notified of 4 any such increase or decrease prior to its taking effect[.5(iv) An]; 6 d. the requirement that an individual resident's monthly care fee 7 shall not be modified because of the increased need for services of that 8 resident; 9 [b. the commissioner as to those] e. aspects of the application relat- 10 ing to adult care facility beds, if any; 11 [c.] f. review by the public health and health planning council as to 12 the establishment of a skilled nursing facility by the applicant and as 13 to such other facilities and services as may require the public health 14 and health planning council's approval of the application; provided, 15 however, that the recommendations of the health systems agency having 16 geographical jurisdiction of the area where the continuing care retire- 17 ment community is located shall not be required with respect to the 18 establishment of an on-site or affiliated residential health care facil- 19 ity to serve residents as part of the continuing care retirement commu- 20 nity, for up to the total number of residential health care facility 21 beds provided for in subdivision five of this section in communities 22 statewide; 23 [d. the commissioner under section twenty-eight hundred two of this24chapter;] provided, [however] further, that, the recommendations of the 25 public health and health planning council and the health systems agency 26 having geographical jurisdiction of the area where the continuing care 27 retirement community is located shall not be required with respect to 28 the construction of an on-site or affiliated residential health care 29 facility to serve residents as part of the continuing care retirement 30 community, for up to the total number of residential health care facili- 31 ty beds provided for in subdivision five of this section in communities 32 statewide; and 33 [e. the] g. upon consultation with the attorney general, as to those 34 aspects of the application relating to a cooperative, condominium or 35 other equity arrangement for the independent living unit, if any. 36 § 4. The opening paragraph of subdivision 6 of section 4604 of the 37 public health law, as amended by chapter 659 of the laws of 1997, is 38 amended to read as follows: 39 If the [approvals] applicant has satisfied the criteria required by 40 subdivision four of this section [have been obtained], the [council] 41 commissioner shall[, by majority vote,] either approve or reject the 42 application [within sixty days of the date on which the last such43approval has been obtained]. In order to approve the application, the 44 [council] commissioner shall have determined that: 45 § 5. Subdivisions 7 and 9 of section 4604 of the public health law, 46 subdivision 7 as amended by chapter 659 of the laws of 1997 and subdivi- 47 sion 9 as added by chapter 689 of the laws of 1989, are amended to read 48 as follows: 49 7. Any change in the legal entity operating the continuing care 50 retirement community, or in a controlling person of the community shall 51 require approval in the same manner as an original application; 52 provided, however, that the [council] commissioner may waive any 53 requirement to provide information that is not relevant to such change 54 and provided, further, that the continued public need for the community 55 shall be presumed.S. 1803--A 6 1 9. [If the council approves the application, the] The commissioner 2 shall issue the certificate of authority to the applicant upon approval 3 of the application. 4 § 6. Section 4604-a of the public health law, as amended by chapter 5 659 of the laws of 1997, paragraph g of subdivision 2 as amended by 6 chapter 549 of the laws of 2014, is amended to read as follows: 7 § 4604-a. [Council] Commissioner approval required for industrial 8 development agency financing in connection with continuing care retire- 9 ment communities. 1. No person seeking financing in connection with a 10 continuing care retirement community through an industrial development 11 agency shall undertake such financing without the prior approval of the 12 [council] commissioner. Upon approving a proposed financing pursuant to 13 this section, the [council] commissioner shall issue a certificate of 14 authorization to the applicant. 15 2. Prior to approving such financing, the [council] commissioner shall 16 find that: 17 a. The operator has (i) executed contracts for at least seventy 18 percent of all living units and has on deposit at least ten percent of 19 the entrance fees or purchase price for such units; or (ii) executed 20 contracts for at least sixty percent of all living units and has on 21 deposit at least twenty-five percent of the entrance fees or purchase 22 price for such units. 23 b. The operator has demonstrated capability to comply fully with the 24 requirements for a certificate of authority and has obtained a contin- 25 gent certificate of authority pursuant to section forty-six hundred four 26 of this article and the operator has agreed to meet the requirements of 27 article eighteen-A of the general municipal law. 28 c. The applicant is a not-for-profit corporation as defined in section 29 one hundred two of the not-for-profit corporation law that is (i) eligi- 30 ble for tax-exempt financing under this section and (ii) is exempt from 31 taxation pursuant to section 501(c)(3) of the federal internal revenue 32 code, and either has (i) an equity position in the community equivalent 33 to no less than fifteen percent of the amount to be financed in the 34 aggregate; or (ii) covenants (A) to meet a ratio of cash and investments 35 to outstanding debt (reserve ratio) of no less than twenty-five percent 36 commencing at the end of the first quarter after twenty-four months from 37 the receipt of a certificate of occupancy for the facility, and (B) to 38 maintain that reserve ratio, as tested quarterly based upon the facili- 39 ty's interim financial statements and annually based upon audited finan- 40 cial statements, until debt reduction equal to twenty-five percent of 41 total indebtedness is accomplished; and (c) to reduce total debt by 42 twenty-five percent of the total indebtedness at the time the certif- 43 icate of occupancy is received by no later than five years after the 44 receipt of the certificate of occupancy. 45 d. The operator has submitted in connection with the proposed financ- 46 ing a financial feasibility study, including a financial forecast and 47 market study prepared by an independent firm nationally recognized for 48 continuing care retirement community feasibility studies, demonstrating 49 to the satisfaction of the [council] commissioner the financial sound- 50 ness of the financing. In addition, the operator has submitted an analy- 51 sis of economic costs and benefits, including job creation and 52 retention, the estimated value of tax exemptions provided, the project's 53 impact on local businesses and the availability and comparative cost of 54 alternative financing sources. Such analysis shall be prepared by an 55 independent entity.S. 1803--A 7 1 e. The operator will establish and maintain a fully funded debt 2 service reserve equal to the sum of maximum annual debt service (inter- 3 est plus annual scheduled principal payments, not including balloon 4 maturities, if any) on bonds authorized thereby having a maturity of ten 5 years or less, plus the maximum annual debt service on bonds authorized 6 thereby having a maturity of greater than ten years, provided, however, 7 that in the case of tax-exempt bond issues, such debt service reserve 8 shall not exceed the maximum amount permitted by federal tax law. 9 f. The operator will provide for such remedies or limitations of reme- 10 dies of bondholders as may be required by or consistent with the 11 provisions of this article and any regulations in existence at the time 12 of the issuance promulgated thereunder. 13 g. Unless all residents or continuing care at home contract holders 14 have life care contracts, the operator has adequately made the assur- 15 ances required by subdivision two of section forty-six hundred twenty- 16 four of this article and has agreed to fund the liability in the event 17 that such resident's or contract holder's assets are insufficient to pay 18 for nursing facility services for a one year period. 19 3. In addition, an operator which is subject to the provisions of this 20 section shall: 21 a. provide the [council or its designee] commissioner with notice of 22 any monetary default or covenant default in connection with such financ- 23 ing and shall further notify the [council or its designee] commissioner 24 of any withdrawal from the debt service reserve fund established in 25 connection with such financing; 26 b. respond in writing to the operational recommendations of the [coun-27cil or its designee] commissioner with respect to protecting the inter- 28 ests of continuing care retirement community residents in the event of 29 any monetary default or covenant default provided for in connection with 30 such financing; 31 c. provide adequate security for the repayment of the bonds issued, 32 including the granting of liens on real and personal property and the 33 pledge of project revenues; the maintenance of minimum debt service 34 coverage and other financial ratios as shall be required in regulations 35 in existence at the time of issuance by the [council] commissioner; and 36 restrictions on other debt and expenditures; and 37 d. undertake to maintain the financial feasibility of the facility, 38 including the retention of an independent consultant to recommend and 39 help implement remedial action. 40 4. The [council] commissioner may request, and shall receive, the 41 technical assistance of any state agency or state public authority in 42 performing its functions under this article. 43 § 7. Section 4605-a of the public health law, as added by chapter 7 of 44 the laws of 2015, is amended to read as follows: 45 § 4605-a. Certificate of authority; authority to offer continuing care 46 at home contracts. A continuing care retirement community may offer 47 continuing care at home contracts upon approval by the [council] commis- 48 sioner to amend the continuing care retirement community's certificate 49 of authority. In order to qualify for an amendment to its certificate of 50 authority, the continuing care retirement community shall submit to the 51 commissioner the following: 52 1. a business plan to the commissioner [and superintendent] that 53 includes the following: 54 (a) a description of the continuing care at home services that will be 55 provided, the market that will be served by the continuing care at homeS. 1803--A 8 1 contracts, and the fees to be charged to prospective continuing care at 2 home contract holders; 3 (b) a copy of the proposed continuing care at home contract; and 4 (c) an actuarial study prepared by an independent actuary in accord- 5 ance with standards adopted by the American Academy of Actuaries demon- 6 strating the impact that the continuing care at home contracts will have 7 on the overall operations of the continuing care retirement community 8 and further demonstrating that the addition of continuing care at home 9 contracts will not jeopardize the financial solvency of the continuing 10 care retirement community. 11 2. a market feasibility study demonstrating to the commissioner [and12superintendent] sufficient consumer interest in continuing care at home 13 contracts and further demonstrating that the addition of continuing care 14 at home contracts will not have an adverse impact on the provision of 15 services to continuing care retirement contract holders. 16 3. materials that meet all requirements established by the [New York17state] department [of financial services]. 18 4. [A] a copy of the notification sent to continuing care retirement 19 contract holders describing the anticipated impact of the addition of 20 continuing care at home contracts on continuing care retirement communi- 21 ty resources and proof that such notification has been distributed to 22 all continuing care retirement contract holders. 23 § 8. Section 4605-b of the public health law, as added by chapter 7 of 24 the laws of 2015, is amended to read as follows: 25 § 4605-b. Certificate of authority; limitation on continuing care at 26 home contracts. The number of continuing care at home contracts 27 approved on a certificate of authority shall be limited to: 28 1. The number of approved living units on the continuing care retire- 29 ment community's premises that are intended for ILU residents, except 30 that the [council] commissioner may approve additional contracts upon a 31 submission [to the commissioner] by an operator consistent with the 32 provisions set forth in section forty-six hundred five-a of this arti- 33 cle; 34 2. The demonstrated number of continuing care at home contract holders 35 that can be supported in the existing or approved future capacity of the 36 adult care facility and skilled nursing facility consistent with the 37 provisions set forth in section forty-six hundred five-a of this arti- 38 cle; and 39 3. Conditions set forth by the [New York state] department [of finan-40cial services], based upon the [superintendent] commissioner's assess- 41 ment of the following: 42 (a) the overall financial impact on the community; and 43 (b) the submitted materials set forth in section forty-six hundred 44 five-a of this article. 45 § 9. Section 4607 of the public health law, as added by chapter 689 of 46 the laws of 1989, paragraph d of subdivision 2 as amended by chapter 659 47 of the laws of 1997, is amended to read as follows: 48 § 4607. Annual statement. 1. Within four months of close of the oper- 49 ator's fiscal year, unless an extension of time to file has been grant- 50 ed, the operator shall file an annual statement with the commissioner 51 [and superintendent] showing the condition as of the last day of the 52 preceding calendar or fiscal year. If the commissioner [and superinten-53dent do] does not receive the annual statement within four months of the 54 end of the operator's fiscal year or have not granted an extension of 55 time to file, the [council] commissioner may charge a late fee.S. 1803--A 9 1 2. The annual statement shall be in such form as the [council] commis- 2 sioner prescribes and shall contain at least the following: 3 a. Any change in status with respect to the information required to be 4 submitted pursuant to section forty-six hundred four of this article; 5 b. Financial statements audited by an independent certified public 6 accountant, which shall contain, for two or more periods if the communi- 7 ty has been in existence that long, the following: 8 (i) an accountant's opinion and, in accordance with generally accepted 9 accounting principles: 10 (A) a balance sheet, 11 (B) a statement of income and expenses, 12 (C) a statement of equity or fund balances, 13 (D) a statement of changes in financial position, 14 (ii) notes to the financial statements considered customary or neces- 15 sary to ensure full disclosure of the financial statements, financial 16 condition, and operation; 17 c. A detailed listing of the assets maintained for the reserves; 18 d. A copy of the most recent actuarial review of the community, 19 including such information as may be required by the [superintendent] 20 commissioner including an opinion of a qualified consulting actuary, as 21 to the current and projected soundness of the community, provided howev- 22 er that a new actuarial review must be submitted triennially; and 23 e. Such other reasonable financial and other information as the [coun-24cil] commissioner may require with respect to the operator or the commu- 25 nity, or its directors, controlling persons, trustees, members, branch- 26 es, subsidiaries or affiliates to determine the financial status of the 27 community and the management capabilities of the operator. 28 3. Sixty days before commencement of each calendar or fiscal year or 29 official opening date, whichever is applicable, each operator shall file 30 with the commissioner [and superintendent] a computation of the annual 31 long-term debt service and a projected annual revenue and expense summa- 32 ry for the next ten years. 33 § 10. Section 4658 of the public health law, as added by chapter 519 34 of the laws of 2004, is amended to read as follows: 35 § 4658. Annual statement. 1. Within four months of close of an opera- 36 tor's fiscal year, unless an extension of time to file has been granted, 37 the operator shall file an annual statement with the commissioner show- 38 ing the condition as of the last day of the preceding calendar or fiscal 39 year. If the commissioner does not receive the annual statement within 40 four months of the end of the operator's fiscal year or has not granted 41 an extension of time to file, the council may charge a late fee. 42 2. The annual statement shall be in such form as the [council] commis- 43 sioner prescribes and shall contain at least the following: 44 a. Any change in status with respect to the information required to be 45 submitted pursuant to section forty-six hundred fifty-seven of this 46 article; 47 b. Financial statements audited by an independent certified public 48 accountant, which shall contain, for two or more periods if the communi- 49 ty has been in existence that long, the following: 50 (i) notes to the financial statements considered customary or neces- 51 sary to ensure full disclosure of the financial statements, financial 52 condition, and operation; and 53 (ii) an accountant's opinion and, in accordance with generally 54 accepted accounting principles: (A) a balance sheet, (B) a statement of 55 income and expenses, (C) a statement of equity or fund balances, and (D) 56 a statement of changes in financial position;S. 1803--A 10 1 c. A detailed listing of the assets maintained for the reserves; and 2 d. Such other reasonable financial and other information as the [coun-3cil] commissioner may require with respect to the operator or the commu- 4 nity, or its directors, controlling persons, trustees, members, branch- 5 es, subsidiaries or affiliates to determine the financial status of the 6 community and the management capabilities of the operator. 7 3. Sixty days before commencement of each calendar or fiscal year or 8 official opening date, whichever is applicable, each operator shall file 9 with the commissioner a computation of the annual long-term debt service 10 and a projected annual revenue and expense summary for the next ten 11 years. 12 § 11. Subdivision 16 of section 4608 of the public health law, as 13 amended by chapter 7 of the laws of 2015, is amended to read as follows: 14 16. A statement that any amendment to the contract and any change in 15 fees or charges, other than those within the guidelines of an approved 16 rating system, must be approved by the [superintendent of financial17services] commissioner; 18 § 12. Subdivisions 1 and 2 of section 4614 of the public health law, 19 as amended by chapter 7 of the laws of 2015, are amended to read as 20 follows: 21 1. The commissioner, or designee[; and the superintendent, or desig-22nee;] may at any time, and shall at least once every three years, visit 23 each community and examine the business of any applicant for a certif- 24 icate of authority and any operator engaged in the execution of continu- 25 ing care retirement contracts or continuing care at home contracts or 26 engaged in the performance of obligations under such contracts. Routine 27 examinations may be conducted by having documents designated by and 28 submitted to such [commissioners or superintendent] commissioner, which 29 shall include financial documents and records conforming to commonly 30 accepted accounting principles and practices. The final written report 31 of each such examination conducted by such [commissioners or superinten-32dent] commissioner shall be filed with the commissioner and, when so 33 filed, shall constitute a public record. A copy of each report shall be 34 provided to members of the continuing care retirement community council. 35 Any operator being examined shall, upon request, give reasonable and 36 timely access to all of its records. The representative or examiner 37 designated by the [commissioners or superintendent, respectively,] 38 commissioner may, at any time, examine the records and affairs and 39 inspect the community's facilities, whether in connection with a formal 40 examination or not. 41 2. Any duly authorized officer, employee, or agent of the [health] 42 department[, or department of financial services] may, upon presentation 43 of proper identification, have access to, and inspect, any records main- 44 tained by the community relevant to the [respective] agency's regulatory 45 authority, with or without advance notice, to secure compliance with, or 46 to prevent a violation of, any provision of this article. 47 § 13. Subdivision 1 of section 4667 of the public health law, as added 48 by chapter 519 of the laws of 2004, is amended to read as follows: 49 1. The commissioner[, or his or her designee,] may at any time, and 50 shall at least once every three years, visit each community and examine 51 the business of any applicant for a certificate of authority and any 52 operator engaged in the execution of fee-for-service continuing care 53 contracts or engaged in the performance of obligations under such 54 contracts. Routine examinations may be conducted by having documents 55 designated by and submitted to the commissioner, which shall include 56 financial documents and records conforming to commonly accepted account-S. 1803--A 11 1 ing principles and practices. The final written report of each such 2 examination conducted by the commissioner shall be filed with the 3 commissioner and, when so filed, shall constitute a public record. A 4 copy of each report shall be provided to members of the continuing care 5 retirement community council. Any operator being examined shall, upon 6 request, give reasonable and timely access to all of its records. The 7 representative or examiner designated by the commissioner may, at any 8 time, examine the records and affairs and inspect the community's facil- 9 ities, whether in connection with a formal examination or not. 10 § 14. Section 4615 of the public health law, as added by chapter 689 11 of the laws of 1989, paragraph j of subdivision 1 as further amended by 12 section 104 of part A of chapter 62 of the laws of 2011, paragraph k of 13 subdivision 1 as amended by chapter 7 of the laws of 2015 and subdivi- 14 sion 3 as amended by chapter 659 of the laws of 1997, is amended to read 15 as follows: 16 § 4615. Revocation, suspension or annulment of certificate of authori- 17 ty. 1. The [council] commissioner may revoke, suspend, limit or annul 18 the certificate of authority of an operator upon proof that: 19 a. The operator failed to continue to meet the requirements for the 20 authority originally granted; 21 b. The operator lacked one or more of the qualifications for the 22 certificate of authority as specified by this article; 23 c. The operator made a material misstatement, misrepresentation, or 24 committed fraud in obtaining the certificate of authority, or in 25 attempting to obtain the same; 26 d. The operator lacked fitness or was untrustworthy; 27 e. The operator engaged in fraudulent or dishonest practices of 28 management in the conduct of business under the certificate of authori- 29 ty; 30 f. The operator converted or withheld funds; 31 g. The operator failed to comply with, or violated, any proper order, 32 rule or regulation of the council or violated any provision of this 33 article; 34 h. The unsound business practices of the operator renders its further 35 transactions in this state hazardous or injurious to the public; 36 i. The operator has refused to be examined or to produce its accounts, 37 records, and files for examination, or its officers, employees, or 38 controlling persons have refused to give information with respect to the 39 affairs of the community or to perform any other legal obligation as to 40 such examination; 41 j. The [superintendent of financial services] commissioner has made a 42 determination that the operator is insolvent within the meaning of 43 section one thousand three hundred nine of the insurance law; or 44 k. The commissioner has found violations of applicable statutes, rules 45 or regulations which threaten to affect directly the health, safety, or 46 welfare of a resident. 47 2. No certificate of authority shall be revoked, suspended, limited or 48 annulled without a hearing, except that a certificate of authority may 49 be temporarily suspended or limited prior to a hearing for a period not 50 in excess of sixty days upon written notice to the operator following a 51 finding by the commissioner that the public health or safety is in immi- 52 nent danger or there exists any condition or practice or a continuing 53 pattern of conditions or practices that pose an imminent danger to the 54 health or safety of any resident. Any delay in the hearing process occa- 55 sioned by the operator shall toll the running of said suspension orS. 1803--A 12 1 limitation and shall not abridge the full time provided in this subdivi- 2 sion. 3 3. Any state agency which seeks to revoke, suspend, limit or annul the 4 certificate of authority or any other license or certificate required to 5 be obtained by an operator of a continuing care retirement community 6 pursuant to law, shall request the [council] commissioner to commence a 7 hearing pursuant to this section. 8 4. The [council] commissioner shall fix a time and place for the hear- 9 ing. The commissioner shall cause to be served in person or mailed by 10 registered or certified mail to the operator at least ten days before 11 the date fixed for the hearing a copy of the charges, together with the 12 notice of the time and place of the hearing. The operator shall file 13 with the commissioner not less than three days prior to the hearing a 14 written answer to the charges. The agency which initiated the proceeding 15 shall be responsible for providing evidence in support of the charges to 16 the commissioner in order to prepare a statement of charges and shall 17 provide evidence in support of the charges at the hearing. 18 5. All orders hereunder shall be subject to review as provided in 19 article seventy-eight of the civil practice law and rules. Application 20 for such review must be made within sixty days after service in person 21 or by registered or certified mail of a copy of the order upon the oper- 22 ator. 23 § 15. Section 4616 of the public health law, as added by chapter 689 24 of the laws of 1989, the opening paragraph as amended by chapter 659 of 25 the laws of 1997, is amended to read as follows: 26 § 4616. Appointment of a caretaker. Upon a determination by the [coun-27cil] commissioner that there exists operational deficiencies in a 28 continuing care retirement community that show: 29 1. a condition or conditions in substantial violation of the standards 30 for health, safety or patient care established under federal or state 31 law or regulations; or 32 2. [or] that there exists in the facility a pattern or practice of 33 habitual violation of the standards of health, safety or patient care 34 established under federal or state law or regulations, the [council] 35 commissioner shall take the actions prescribed by section forty-six 36 hundred fifteen of this article, and, where the [council] commissioner 37 deems it to be in the public interest, the [council may request that the38commissioner, and upon request of the council the] commissioner shall[,] 39 petition a court of competent jurisdiction to appoint a caretaker as 40 defined in section twenty-eight hundred one of this chapter. The peti- 41 tion, the proceedings, and the procedures for appointment of a caretaker 42 shall be governed by the provisions of section forty-six hundred seven- 43 teen of this article, and the powers, duties and rights of a caretaker 44 appointed pursuant to such section shall be the same as those authorized 45 by subdivision four of such section. 46 § 16. Subdivisions 1, 2 and 8 of section 4617 of the public health 47 law, subdivision 1 as amended by chapter 659 of the laws of 1997, and 48 subdivisions 2 and 8 as added by chapter 689 of the laws of 1989, are 49 amended to read as follows: 50 1. The [council] commissioner may, [if it determines] upon a determi- 51 nation that serious operational deficiencies exist or serious financial 52 problems exist and such action is desirable, enter into an agreement 53 with the operator or owners of a continuing care retirement community 54 with respect to the appointment of a receiver to take charge of the 55 community under conditions as found acceptable by both parties. Receiv- 56 ership commenced in accordance with the provisions of this subdivisionS. 1803--A 13 1 shall terminate at such time as may be provided in the receivership 2 agreement, or at such time as either party notifies the other in writing 3 that it wishes to terminate such receivership. 4 2. [Upon request of the council, the] The commissioner shall, at the 5 time of revocation, suspension or temporary suspension of a certificate 6 of authority, apply to the supreme court where the community is situated 7 for an order directing the owner of the land and/or structure on or in 8 which the community is located, to show cause why a receiver should not 9 be appointed to take charge of the community. In those cases where the 10 certificate of authority has been revoked, suspended or temporarily 11 suspended, the supreme court shall appoint a receiver that, where 12 reasonably possible, is a legal entity that holds a valid certificate of 13 authority. Such application shall contain proof by affidavit that the 14 facility has had its certificate of authority revoked, suspended, or 15 temporarily suspended. Such order to show cause shall be returnable not 16 less than five days after service is completed and shall provide for 17 personal service of a copy thereof and the papers on which it is based, 18 on the owner or owners of the land and/or structures on or in which the 19 community is located. If any such owner and manager cannot with due 20 diligence be served personally within the county where the property is 21 located and within the time fixed in such order, then service may be 22 made on such person by posting a copy thereof in a conspicuous place 23 within the community in question, and by sending a copy thereof by 24 registered mail, return receipt requested, to such owner at the last 25 address registered by him with the department or in the absence of such 26 registration to the address set forth in the last recorded deed with 27 respect to the facility. Service shall be deemed complete on filing 28 proof of service thereof in the office of the county clerk, or the clerk 29 of the city of New York, as the case may be. 30 8. Any other provision of this article notwithstanding, the [council] 31 commissioner may, if [it] he or she deems appropriate, grant to any 32 community operating or scheduled to operate under a receivership author- 33 ized by this section a certificate of authority, the duration of which 34 shall be limited to the duration of the receivership. 35 § 17. Section 4668 of the public health law, as added by chapter 519 36 of the laws of 2004, is amended to read as follows: 37 § 4668. Revocation, suspension or annulment of certificate of authori- 38 ty. 1. The [council] commissioner may revoke, suspend, limit or annul 39 the certificate of authority of an operator upon proof that: 40 a. The operator failed to continue to meet the requirements for the 41 authority originally granted; 42 b. The operator lacked one or more of the qualifications for the 43 certificate of authority as specified by this article; 44 c. The operator made a material misstatement, misrepresentation, or 45 committed fraud in obtaining the certificate of authority, or in 46 attempting to obtain the same; 47 d. The operator lacked fitness or was untrustworthy; 48 e. The operator engaged in fraudulent or dishonest practices of 49 management in the conduct of business under the certificate of authori- 50 ty; 51 f. The operator converted or withheld funds; 52 g. The operator failed to comply with, or violated, any proper order, 53 rule or regulation of the council or violated any provision of this 54 article; 55 h. The unsound business practices of the operator renders its further 56 transactions in this state hazardous or injurious to the public;S. 1803--A 14 1 i. The operator has refused to be examined or to produce its accounts, 2 records and files for examination, or its officers, employees or 3 controlling persons have refused to give information with respect to the 4 affairs of the community or to perform any other legal obligation as to 5 such examination; or 6 j. The commissioner has found violations of applicable statutes, rules 7 or regulations which threaten to affect directly the health, safety, or 8 welfare of a resident of a fee-for-service continuing care retirement 9 community. 10 2. No certificate of authority shall be revoked, suspended, limited or 11 annulled without a hearing, except that a certificate of authority may 12 be temporarily suspended or limited prior to a hearing for a period not 13 in excess of sixty days upon written notice to the operator following a 14 finding by the commissioner that public health or safety is in imminent 15 danger or there exists any condition or practice or a continuing pattern 16 of conditions or practices that pose an imminent danger to the health or 17 safety of any resident. Any delay in the hearing process occasioned by 18 the operator shall toll the running of said suspension or limitation and 19 shall not abridge the full time provided in this subdivision. 20 3. Any state agency which seeks to revoke, suspend, limit or annul the 21 certificate of authority or any other license or certificate required to 22 be obtained by an operator of a community pursuant to law, shall request 23 the [council] commissioner to commence a hearing pursuant to this 24 section. 25 4. The [council] commissioner shall fix a time and place for the hear- 26 ing. The commissioner shall cause to be served in person or mailed by 27 registered or certified mail to the operator at least ten days before 28 the date fixed for the hearing a copy of the charges, together with the 29 notice of the time and place of the hearing. The operator shall file 30 with the commissioner not less than three days prior to the hearing a 31 written answer to the charges. The agency which initiated the proceeding 32 shall be responsible for providing evidence in support of the charges to 33 the commissioner in order to prepare a statement of charges and shall 34 provide evidence in support of the charges at the hearing. 35 5. All orders pursuant to this section shall be subject to review as 36 provided in article seventy-eight of the civil practice law and rules. 37 Application for such review shall be made within sixty days after 38 service in person or by registered or certified mail of a copy of the 39 order upon the operator. 40 § 18. Section 4669 of the public health law, as added by chapter 519 41 of the laws of 2004, is amended to read as follows: 42 § 4669. Appointment of a caretaker. Upon a determination by the 43 [council] commissioner that there exists operational deficiencies in a 44 fee-for-service continuing care retirement community that show: 45 1. there exists in the facility a pattern or practice of habitual 46 violation of the standards of health, safety or patient care established 47 under federal or state law or regulations, the [council] commissioner 48 shall take the actions prescribed by section forty-six hundred sixty- 49 eight of this article, and, where the [council] commissioner deems it to 50 be in the public interest, the [council may request the commissioner,51and upon request of the council the] commissioner shall[,] petition a 52 court of competent jurisdiction to appoint a caretaker as defined in 53 section twenty-eight hundred one of this chapter. The petition, the 54 proceedings, and the procedures for appointment of a caretaker shall be 55 governed by the provisions of section forty-six hundred seventy of this 56 article, and the power, duties and rights of a caretaker appointedS. 1803--A 15 1 pursuant to such section shall be the same as those authorized by subdi- 2 vision four of such section; or 3 2. a condition or conditions in substantial violation of the standards 4 for health, safety or patient care established under federal or state 5 law or regulations. 6 § 19. Subdivisions 1, 2 and 8 of section 4670 of the public health 7 law, as added by chapter 519 of the laws of 2004, are amended to read as 8 follows: 9 1. The [council] commissioner may, [if it determines] upon a determi- 10 nation that serious operational deficiencies exist or serious financial 11 problems exist and such action is desirable, enter into an agreement 12 with the operator or owners of a fee-for-service continuing care retire- 13 ment community with respect to the appointment of a receiver to take 14 charge of the community under conditions as found acceptable by both 15 parties. Receivership commenced in accordance with the provisions of 16 this subdivision shall terminate at such time as may be provided in the 17 receivership agreement, or at such time as either party notifies the 18 other in writing that it wishes to terminate such receivership. 19 2. [Upon request of the council, the] The commissioner shall, at the 20 time of revocation, suspension or temporary suspension of a certificate 21 of authority, apply to the supreme court where the community is situated 22 for an order directing the owner of the land and/or structure on or in 23 which the community is located, to show cause why a receiver should not 24 be appointed to take charge of the community. In those cases where the 25 certificate of authority has been revoked, suspended or temporarily 26 suspended, the supreme court shall appoint a receiver that, where 27 reasonably possible, is a legal entity that holds a valid certificate of 28 authority. Such application shall contain proof by affidavit that the 29 facility has had its certificate of authority revoked, suspended or 30 temporarily suspended. Such order to show cause shall be returnable not 31 less than five days after service is completed and shall provide for 32 personal service of a copy thereof and the papers on which it is based, 33 on the owner or owners of the land and/or structures on or in which the 34 community is located. If any such owner and manager cannot with due 35 diligence be served personally within the county where the property is 36 located and within the time fixed in such order, then service may be 37 made on such person by posting a copy thereof in a conspicuous place 38 within the community in question, and by sending a copy thereof by 39 registered mail, return receipt requested, to such owner at the last 40 address registered by him or her with the department or in the absence 41 of such registration to the address set forth in the last recorded deed 42 with respect to the facility. Service shall be deemed complete on filing 43 proof of service thereof in the office of the county clerk, or the clerk 44 of the city of New York, as the case may be. 45 8. Any other provision of this article notwithstanding, the [council] 46 commissioner may, if [it] he or she deems appropriate, grant to any 47 community operating or scheduled to operate under a receivership author- 48 ized by this section a certificate of authority, the duration of which 49 shall be limited to the duration of the receivership. 50 § 20. Paragraph g of subdivision 4 of section 4621 of the public 51 health law, as added by chapter 406 of the laws of 1991, is amended to 52 read as follows: 53 g. If the funds in an escrow account under this section, and any 54 interest thereon, are not released to the applicant within such time as 55 provided by rules and regulations adopted by the [council] commissioner,S. 1803--A 16 1 then such funds shall be returned by the escrow agent to the person who 2 had made the payments or the person's legal representative. 3 § 21. Subdivision 1 of section 4623 of the public health law, as 4 amended by chapter 659 of the laws of 1997, is amended to read as 5 follows: 6 1. The [council] commissioner may approve an application for a certif- 7 icate of authority and [the commissioner] may issue a certificate of 8 authority for the establishment and operation of a continuing care 9 retirement community under an arrangement which otherwise complies with 10 the requirements of this article except that the costs of nursing facil- 11 ity or home health care services are paid for in whole or in part by (a) 12 long term care insurance obtained and paid for by the resident or by 13 medical assistance payments in accordance with the partnership for long 14 term care program pursuant to section three hundred sixty-seven-f of the 15 social services law and section three thousand two hundred twenty-nine 16 of the insurance law or (b) other group or individual long term care 17 insurance approved by the superintendent and the council in connection 18 with the application. The council, in consultation with the superinten- 19 dent, shall provide for adequate disclosure to residents of their 20 options, rights and obligations under such an arrangement, and shall 21 establish standards for the remittance and collection of premiums and 22 monthly care fees. 23 § 22. The opening paragraph of subdivision 14 and subdivision 15 of 24 section 4657 of the public health law, as added by chapter 519 of the 25 laws of 2004, are amended to read as follows: 26 In accordance with regulations promulgated by the [council] commis- 27 sioner, the operator shall prepare a standard information sheet for each 28 approved fee-for-service continuing care retirement community, which 29 must be approved by the department, distributed with the community's 30 marketing materials and attached to the initial disclosure statement 31 prepared in accordance with this section. The standard information sheet 32 shall be prepared in plain language and in twelve point type and shall 33 include, but shall not be limited to the following information: 34 15. Any other information as may be required by regulations promulgat- 35 ed by the [council] commissioner. 36 § 23. The opening paragraph and paragraph d of subdivision 2 of 37 section 4658 of the public health law, as added by chapter 519 of the 38 laws of 2004, are amended to read as follows: 39 The annual statement shall be in such form as the [council] commis- 40 sioner prescribes and shall contain at least the following: 41 d. Such other reasonable financial and other information as the [coun-42cil] commissioner may require with respect to the operator or the commu- 43 nity, or its directors, controlling persons, trustees, members, branch- 44 es, subsidiaries or affiliates to determine the financial status of the 45 community and the management capabilities of the operator. 46 § 24. Subdivision 2 of section 4651 of the public health law, as added 47 by chapter 519 of the laws of 2004, is amended to read as follows: 48 2. "Certificates" or "certificate of authority" shall mean an authori- 49 zation in writing, approved [by the council] and issued by the commis- 50 sioner, for an operator to operate a fee-for-service continuing care 51 retirement community and to enter into fee-for-service continuing care 52 contracts pertaining to such community. 53 § 25. Section 4654 of the public health law, as amended by chapter 545 54 of the laws of 2004, is amended to read as follows: 55 § 4654. Authorization of fee-for-service continuing care retirement 56 communities. The commissioner[, upon approval of the continuing careS. 1803--A 17 1retirement community council,] shall approve up to eight fee-for-service 2 continuing care retirement communities to encourage affordable care 3 options for middle income seniors, up to two of which may be operated by 4 a for-profit entity. 5 § 26. The opening paragraph of section 4659 of the public health law, 6 as added by chapter 519 of the laws of 2004, is amended to read as 7 follows: 8 A fee-for-service continuing care contract shall contain all of the 9 following information in no less than twelve point type and in plain 10 language, in addition to any other terms or matter as may be required by 11 regulations [adopted by the council and] issued by the commissioner: 12 § 27. The opening paragraph of subdivision 5 of section 4655 of the 13 public health law, as amended by chapter 545 of the laws of 2004, is 14 amended to read as follows: 15 If the [approvals] applicant has satisfied the criteria required by 16 subdivision four-a of this section have been obtained, the [council] 17 commissioner shall[, by majority vote,] either approve or reject the 18 application [within sixty days of the date on which the last such19approval has been obtained]. In order to approve the application, the 20 [council] commissioner shall have determined that: 21 § 28. Subdivisions 6 and 8 of section 4655 of the public health law, 22 as added by chapter 519 of the laws of 2004, are amended to read as 23 follows: 24 6. Any change in the legal entity operating the fee-for-service 25 continuing care retirement community, or in a controlling person of the 26 community shall require approval in the same manner as an original 27 application; provided, however, that the [council] commissioner may 28 waive any requirement to provide information that is not relevant to 29 such change and provided, further, that the continued public need for 30 the community shall be presumed. 31 8. [If the council approves the application, the] The commissioner 32 shall issue a certificate of authority to the applicant upon approval of 33 the application. 34 § 29. Section 4611 of the public health law, as added by chapter 689 35 of the laws of 1989, the opening paragraph of subdivision 1 as further 36 amended by section 104 of part A of chapter 62 of the laws of 2011, is 37 amended to read as follows: 38 § 4611. Reserves and supporting assets. 1. An operator shall maintain 39 reserve liabilities and supporting assets in an amount and for the 40 purposes set forth in a regulation issued by the [superintendent of41financial services] commissioner. Liquid assets must be maintained for 42 the following reserve liabilities: 43 a. Principal and interest payments and payments for taxes and insur- 44 ance for up to twelve months; 45 b. Total estimated operating costs for up to six months as set by the 46 [superintendent] commissioner; 47 c. Repairs and replacements for up to twelve months; and 48 d. In addition, the amount of liquid assets must meet any cash flow 49 requirements and conditions as set forth in a regulation. 50 2. The assets in support of reserve liabilities of subdivision one of 51 this section shall meet quantitative and qualitative standards set forth 52 in regulations issued by the [superintendent] commissioner. 53 § 30. This act shall take effect on the one hundred eightieth day 54 after it shall have become a law. Effective immediately, the addition, 55 amendment and/or repeal of any rule or regulation necessary for theS. 1803--A 18 1 implementation of this act on its effective date are authorized to be 2 made and completed on or before such effective date.
