Part 900 - Certificate of Authority

Effective Date: 
Wednesday, July 27, 1994
Doc Status: 
Complete
Statutory Authority: 
Public Health Law, Section 4602(2)(g)

Section 900.1 - Definitions

Section 900.1 Definitions. For purposes of this Part, unless the context indicates otherwise, the following definitions shall apply:

(a) Adult care facility shall mean an adult home or an enriched housing program established pursuant to Article 7 of the Social Services Law which provides long-term residential care and services to adults who, though not requiring continual medical and nursing care as provided by facilities licensed or operated pursuant to article 28 of the Public Health Law or articles 19, 23, 29 and 31 of the Mental Hygiene Law, are, by reason of physical or other limitations associated with age, physical or mental disabilities or other factors, unable or substantially unable to live independently.

(b) Application fee shall mean a sum of money other than an entrance fee deposit or entrance fee collected from an individual upon application for admission to the community.

(c) Board shall mean the provision of meals consisting of food and drink appropriate for the physical needs and medical conditions of residents, including the provision of therapeutic diets appropriate for the individual resident.

(d) Certificate or certificate of authority shall mean an authorization in writing, approved by the Life Care Community Council and issued by the Commissioner of Health, for an operator to operate a life care community and to enter into life care contracts pertaining to such community.

(e) Commissioner shall mean the Commissioner of Health.

(f) Contracts or agreements shall mean life care contracts as defined in this section.

(g) Controlling person shall mean a person who, either directly or indirectly, or through one or more intermediaries, possesses the ability to direct or cause the direction of the actions, management or policies of a person, whether through the ownership of voting securities or voting rights, by contract (except a commercial contract for goods or non-management services) or otherwise; but no person shall be deemed to control another person solely by reason of his or her being a corporate officer or director of such other person (providing such officer or director is not acting in concert with others to represent another corporation). Control shall be presumed to exist if any person, directly or indirectly, owns, controls or holds with the power to vote ten percent or more of the voting securities or voting rights of any other person or is a member of a not-for-profit corporation which member is other than a natural person.

(h) Council shall mean the Life Care Community Council, established pursuant to Section 4602 of Article 46 of the Public Health Law.

(i) Entrance fee shall mean an initial or deferred transfer to an operator, as defined in this section, of a sum of money, made or promised to be made by an individual or individuals entering into a life care contract, for the purpose of ensuring services pursuant to such a contract.

(j) Facility shall mean any place in which an operator provides a resident with the services of a life care community, pursuant to a contract, whether such place is constructed, owned, leased, rented or otherwise contracted for by the operator.

(k) Home health care shall mean services and items provided to residents of the community in other than nursing home beds, either directly or through a contract arrangement. Such services shall be provided under a plan established and periodically reviewed by a physician and shall include, but not be limited to, part-time or intermittent nursing care by or under the supervision of a registered professional nurse (R.N.), physical therapy, occupational therapy, speech-language pathology, medical social services, medical supplies, equipment and appliances and home health aide services.

(l) Life care contract shall mean a single contract to provide an individual, for the duration of such individual's life, the services provided by the life care community. Payment for services provided under the life care contract can be made:

(1) fully through the entrance fee and monthly fees; or

(2) through the entrance fee, monthly fees and under an arrangement in which the costs of the resident's nursing facility and/or home health care services are paid for in whole or in part by long term care insurance or medical assistance payments in accordance with the Long Term Care Security Program for Long Term Care pursuant to section 367-f of the Social Services Law, section 3229 of the Insurance Law and section 4623 of the Public Health Law.

(m) Life care community or community shall mean a facility or facilities established to provide, pursuant to a life care contract, a comprehensive, cohesive living arrangement for the elderly, oriented to the enhancement of the quality of life and which at a minimum:

(1) provides independent living units;

(2) provides board including the availability of three meals per day, payment for which is subject to the terms specified in the life care contract; (3) provides a range of health care and social services, subject to such terms as may be included within the contract which shall include, but not be limited to home health care, nursing care, and the services of an on-site or affiliated nursing home;

(4) provides access to specialized rehabilitative services such as physical therapy, occupational therapy, speech-language pathology and audiology;

(5) provides access to physician services; and

(6) provides access to prescription drugs.

(n) Life care, health care and/or adult care operation shall mean:

(1) any community which requires or would require, if located in New York State, approval by the Life Care Community Council;

(2) any facility or program which requires or would require if located in New York State, establishment approval by the Public Health Council; or

(3) any facility or program which requires or would require if located in New York State, approval by the New York State Department of Social Services, the New York State Office of Mental Health or the New York State Office of Mental Retardation and Developmental Disabilities.

(o) Living unit or independent living unit shall mean an apartment, room, cottage, or other area within a community set aside for the exclusive use of one or more residents exclusive of a room in the nursing home, adult care facility or other specialized unit within the community.

(p) Monthly care fee shall mean the monthly cost to a resident for the prepayment of any services, including rent, rendered pursuant to a contract, exclusive of entrance fees or other prepayments, and any other regular periodic charges to the resident, determined on a monthly basis, pursuant to the provisions of a contract.

(q) Nursing home, also referred to in this Part and Part 901 as a residential health care facility or nursing facility, shall mean a facility, institution, or portion thereof subject to Article 28 of the New York State Public Health Law, providing therein, lodging for twenty-four or more consecutive hours to three or more nursing home residents who are not related to the operator by marriage or by blood within the third degree of cosanguinity, who need regular nursing services or other professional services but who shall not need the services of a general hospital.

(r) Operator shall mean a legal entity operating a life care community pursuant to a certificate of authority.

(s) Parent corporation means a corporation which, directly or indirectly, or through one or more intermediaries, possesses the ability to direct or cause the direction of the actions, management or policies of any partnership or corporation which is applying for approval to operate or which already operates a life care community.

(t) Person shall mean an individual, corporation, governmental subdivision or other legal entity, including a joint venture or any combination of the foregoing acting in concert.

(u) Principal stockholder means any person or organization that owns, holds or has the power to vote ten percent or more of the issued and outstanding voting shares of stock of a corporation.

(v) Qualified consulting actuary shall mean an individual who either:

(1) is a member of the American Academy of Actuaries and has, based on the Academy's qualification standards, the necessary, training and experience pertaining to life care communities; or

(2) demonstrates to the satisfaction of the Superintendent that based on his/her knowledge, training and experience that he/she has the necessary knowledge pertaining to life care communities.

(w) Resident shall mean any individual who, pursuant to a contract, is entitled to reside in and receive services from a life care community.

(x) Social services shall mean those services which may include, but not be limited to counseling, case management, and information and referral.

(y) Superintendent shall mean the Superintendent of Insurance.
 

Effective Date: 
Wednesday, July 27, 1994
Doc Status: 
Complete

Section 900.2 - Applicability of other laws and regulations

900.2 Applicability of other laws and regulations. (a) Except as otherwise indicated in this section, the activities of life care communities shall be subject to any other laws governing such activities including, but not limited to, Articles 28 and 36 of the Public Health Law and Article 7 of the Social Services Law and regulations promulgated thereunder.

(b) In applying the provisions of section 2801-a of the Public Health Law to life care communities:

(1) the first one thousand nursing home beds proposed as components of communities shall be exempt from the consideration of public need pursuant to section 2801-a(3) and Part 670 of Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York;

(2) the prohibition against establishment of a residential health care facility to be operated by a limited partnership, or by a partnership any of the members of which are not natural persons, pursuant to section 2801-a(4)(d), shall not apply;

(3) the prohibition against establishment of a residential health care facility to be operated by a corporation any of the stock of which is owned by another corporation pursuant to section 2801-a(4)(e), shall not apply;

(4) the prohibition against contracting for management services with a party which has not received establishment approval pursuant to Section 600.9(d) of Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York, shall not apply;

(5) the requirements for establishment of business corporations pursuant to section 620.1 of Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York except as specifically noted herein shall be superseded by those of this Part;

(6) the requirements regarding the transfer, assignment or other disposition of ten percent or more of the stock or voting rights pursuant to section 2801-a(4)(c) and section 620.3 of Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York shall not apply to the community as a whole (to which the provisions of this Part regarding controlling persons apply), but shall apply to any nursing home component which is to be operated by the life care community operator; and

(7) the requirements regarding the review of the character, competence and standing in the community of any principal stockholders pursuant to section 2801-a(3) and section 600.2 of Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York shall not apply to the community as a whole (to which the provisions of this Part regarding controlling persons apply), but shall apply to any nursing home component to be operated by the life care community operator.

(c) In applying the provisions of Article 36 of the Public Health Law to life care communities:

(1) any certified home health agency established as part of a life care community shall not be exempt from the determination of public need pursuant to section 3606(2) and section 760.3 of Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York;

(2) the requirements regarding the review of the character, competence and standing in the community of any principal stockholders pursuant to sections 3605(4) and 3606(2) of the Public Health Law and sections 760.2, 765-1.2 and 765-1.3 of Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York shall not apply to the community as a whole (to which the provisions of this Part regarding controlling persons apply), but shall apply to any home care services agency,subject to Article 36 of the Public Health Law, which is to be operated by the life care community operator; and

(3) the requirements regarding the transfer, assignment or other disposition of ten percent or more of the stock or voting rights pursuant to section 3611-a(2) of the Public Health Law and sections 760.14 and 765-1.13 of Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York shall not apply to the community as a whole (to which the provisions of this Part regarding controlling persons apply), but shall apply to any home care services agency, subject to Article 36 of the Public Health Law, which is to be operated by the life care community operator.

(d) In applying the provisions of Article 7 of the Social Services Law to life care communities:

(1) any adult care facility beds established as part of a life care community shall not be exempt from the determination of public need pursuant to section 485.6 of Chapter II, Title 18 (Social Services) of the Official Compilation of Codes, Rules and Regulations of the State of New York; (2) the prohibition against establishment by certain non-natural persons and business corporations pursuant to section 461-b(1)(a) of the Social Services Law and section 485.5 of Chapter II, Title 18 (Social Services) of the Official Compilation of Codes, Rules and Regulations of the State of New York shall not apply; and

(3) the requirements regarding the review of character, competence and standing the community of any principal stockholders pursuant to section 485.6 of Chapter II, Title 18 of the Official Compilation of Codes, Rules and Regulations of the State of New York shall not apply to the community as a whole but shall apply to any adult home component established as part of a life care community.
 

Effective Date: 
Wednesday, July 27, 1994
Doc Status: 
Complete

Section 900.3 - Application for certificate of authority

Section 900.3 Application for certificate of authority. (a) An application to the Life Care Community Council for its approval to operate a life care community shall be in writing on application forms provided by the department and subscribed by the chief executive officer duly authorized by the board of a corporate applicant, a general partner or proprietor of the proposed life care community, or, where an application is to be submitted by a governmental subdivision as the applicant, the president or chairman of the board of the proposed community or the chief executive officer if there is no board; and accompanied by a certified copy of a resolution of the board of a corporate applicant authorizing the undertaking which is the subject of the application, and the subscribing and submission thereof by an appropriate designated individual. In the event that an application is to be submitted by an entity which necessarily remains to be legally incorporated, it shall be subscribed and submitted by one of the proposed principal stockholders or directors. If a local governmental applicant submitting an application has not designated a president, chairman or chief executive officer for the proposed community, the application shall be subscribed by the chairman or president of the local legislature or board of supervisors having jurisdiction, or other appropriate executive officer. An original application and eleven copies thereof shall be prepared and submitted to the Commissioner.

(b) Applications to the council shall contain information and data with reference to:

(1) the need for the existence of the proposed community at the time and place and under the circumstances proposed;

(2) the character, experience, competence and standing in the community of the controlling persons, if any, of the applicant, managers, if any, the sole proprietor applicant, the general partners of a partnership applicant, the proposed directors and officers of a corporation, corporate general partner, parent corporation or management corporation, and governmental subdivisions. The application shall include copies of personal and disclosure information, as appropriate, as may be required by the council with regard to any such individual or organization; and

(3) the applicant's ability to organize, market, manage, promote and operate the community in a financially feasible and capable manner and its ability to meet its expected obligations.

(c) The following documents shall be filed as part of the application:

(1) a feasibility study defined as follows:

(i) the study shall be in the form of a financial forecast subject to an examination by an independent certified public accountant including a statement by the accountant that the examination was conducted in accordance with generally accepted accounting principles (GAAP);

(ii) the financial forecast shall include:

(a) prospective financial statements covering a period of five years beginning with the calendar year in which the application is made;

(b) a market analysis including the demographic characteristics of the population to be served as a basis for judging whether the proposed community is likely to achieve acceptable occupancy rates; and

(c) an opinion by a qualified consulting actuary as to the acturial assumptions used in developing the financial forecast; and

(iii) the examination of the financial forecast included in the application may be in draft form provided that the final examination be submitted to the department upon financing of the community;

(2) the rates and rating system, if any, consisting of a detailed formula or formulas to be applied by the operator in the calculation of future entrance fees and monthly care fees;

(3) where the applicant will be operating the life care community under an assumed name, a photocopy of the applicant's existing or executed proposed certificate of doing business;

(4) a copy of the proposed life care contract between the community and its residents;

(5) copies of any contracts for the provision of nursing home services, home health care services or adult care facility services to the community;

(6) copies of all applicable executed and proposed deeds, leases, and rental agreements or executed option contracts related to the community's real property interests;

(7) complete details of any agreements between the community and licensed insurers, including copies of the proposed contracts requiring the insurer to assume, wholly or in part, the cost of medical or health related service to be provided to the residents of the community;

(8) a copy of each of the basic organizational documents and agreements of the applicant and all participating entities including, as applicable: by-laws, partnership agreements, articles of incorporation, articles of association or other membership agreements, or their substantial equivalents; (9) where the applicant has a parent corporation or a controlling person, copies of any such entity's bylaws, certificate of incorporation and any existing or proposed amendments thereto, all agreements between the applicant and any such controlling person or parent corporation relating to the manner and mechanisms by which any such controlling person or parent corporation controls or will control the applicant and a detailed description of such control relationship;

(10) architectural program and sketches of the community including the following:

(i) site plans;

(ii) schematic architectural and engineering design drawings and single line sketches of each floor in an appropriate scale showing the relationship of various buildings to each other, room configurations, major exit corridors, exit stair locations, and circulation along with existing buildings if additions or alterations are part of the project;

(iii) outline specifications for the type of construction proposed including a description of energy sources, type and location of engineering systems proposed for heating, cooling, ventilation and electrical distribution, dietary systems, water supply and sewage; and

(iv) for an on-site nursing home component:

(a) a description of the functional and locational relationships among each related but discrete component; and

(b) in those cases where those systems and services specified in Section 711.3(g)(3), Chapter V, Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York are located at the first or basement level or where any floor level is located below the 100-year flood crest level, a description of the site, including a topographic map, U.S. Geological Survey, published by the U.S. Department of Interior Geological Survey, 7 1/2 minute series, unless not published for such site, in which case 15 minute series shall be acceptable;

(11) construction timetable;

(12) information on the ownership of the property interests in the community including the following:

(i) the name and address and a description of the interest held, or proposed to be held, by each of the following persons:

(a) any person who, directly or indirectly, beneficially owns any interest in the land on which the community is located;

(b) any person who, directly or indirectly, beneficially owns any interest in the buildings in which the community is located;

(c) any person who, directly or indirectly, beneficially owns any interest in any mortgage, note, deed of trust or other obligations secured in whole or in part by the equipment used in the community, or by the land on which or the buildings in which the community is located;

(d) any person who, directly or indirectly, has any interest as lessor or lessee in any lease or sublease of the land on which or the buildings in which the community is located; and

(ii) if any person named in response to paragraph (i) of this subdivision is a partnership, then the name and address of each general partner;

(iii) if any person named in response to paragraph (i) of this subdivision is a corporation, then the name and address of each controlling person, director and officer of such corporation;

(iv) if any corporation named in response to paragraph (i) of this subdivision is a corporation whose shares are traded on a national securities exchange or are regularly quoted in an over-the-counter market or which is a commercial bank, savings bank or savings and loan association, then the name and address of the principal executive officers and each member of the board of directors of such corporation;

(v) such additional pertinent information and documents necessary for the council's consideration, as requested;

(13) a copy of the agreement, if any, executed or to be executed between the operator and a manager;

(14) an initial disclosure statement which shall include, but not be limited to:

(i) the following statement printed in bold twelve point type on the cover or on top of the first page: "This matter involves a substantial financial investment and a legally binding contract. In evaluating the disclosure statement and the contract prior to any commitment, it is recommended that you consult with an attorney and financial advisor of your choice, if you so elect, who can review these documents with you.";

(ii) the name and business address of the operator and a statement of whether the operator is an individual, partnership, corporation or other legal entity;

(iii) all of the information required by regulation to be in the life care contract unless a copy of the actual contract is attached and incorporated as part of the disclosure statement; (iv) a description of the community including the number of independent living units, nursing home beds, adult care facility beds, if any, as well as the location, size and anticipated completion date and a description of other social and health services provided by the community;

(v) a list of life care, health care and/or adult care operations owned or operated by any controlling person(s) of the applicant(s), each sole proprietor applicant, each general partner of a partnership applicant, each corporate applicant and each officer and member of the board of directors of a corporate applicant or corporate general partner, or by entities with which the members of the board are affiliated including the address and dates of ownership or operation of each such operation;

(vi) in the event that any life care, health care and/or adult care operation specified pursuant to subparagraph (v) above has been subjected to a limitation, withdrawal, disapproval or refusal to grant an operating certificate or other equivalent authority to operate because of failure to comply with standards governing the conduct and operation of the life care, health care and/or adult care operation, information describing the nature of the violation, the name and address of the agency or body enforcing the standard, the steps taken by the life care, health care and/or adult care operation to remedy the violation, and an indication of whether any authority to operate has since been restored or limitation removed;

(vii) a statement as to whether any controlling person of the applicant, any manager, any sole proprietor applicant, any general partner of a partnership applicant, any officer and member of the board of directors of a corporate applicant, corporate general partner, management corporation, parent corporation, or health-related subsidiary corporation:

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

(b) had a prior discharge in bankruptcy or was found insolvent in any court action;

(c) is or was subject to a currently effective order or federal or state administrative order relating to business activity or health care as a result of an action by a public agency or department, including, without limitation, actions affecting a license to operate a life care, health care and/or adult care operation. This statement shall set forth the court or agency, date of conviction or judgement, the penalty imposed or damages assessed, and the date, nature and issuer of the order;

(viii) if any controlling person of the applicant, any manager, any sole proprietor applicant, any general partner of a partnership applicant, any officer and member of the board of directors of a corporate applicant, corporate general partner, management corporation, parent corporation or health-related subsidiary maintains a ten percent interest or greater in any professional service, firm, association, foundation, trust, partnership, corporation, or other entity or if such entity maintains a ten percent interest or greater in the applicant, and such entity will or may provide goods, leases, or services to the community, the value of which is five hundred dollars or more within any one year, the name and address of the entity shall be disclosed together with a description of the goods, leases or services and the probable or anticipated cost to the community;

(ix) if the community is to be operated by a manager:

(a) the name and address of other life care, health care and/or adult care operations, if any, managed by the manager;

(b) a summary of the agreement, including the fee, executed or to be executed between the operator and manager, with a full copy to be made available upon request;

(c) if the manager is incorporated or established and operated on a for-profit basis the name and address of all controlling persons, officers and members of the board of directors of the management corporation;

(d) the method by which the manager was chosen. If the manager was chosen due to a condition in a mortgage commitment, the name and address of the mortgagee imposing the condition;

(x) a statement indicating whether the applicant is or has been affiliated, or has or had a contractual arrangement with a religious, charitable or other non-profit organization and if so, the extent of such affiliation or contractual arrangement including the extent to which the non-profit organization will be responsible for the financial and contractual obligations of the applicant; (xi) if the applicant operates one or more life care communities within or outside of the state, a statement for each such community describing the changes in the entrance fees and the monthly care fees as well as any changes in the care and services provided under the life care contract during the past five years or less for communities which have been in operation for less than five years. This disclosure shall include tables indicating the frequency and average dollar amounts of the fee increases for each community during such time period;

(xii) if the applicant is a corporate subsidiary or affiliate of another corporation, disclosure of the parent or affiliate corporation including the name and address of the parent or affiliate, the primary activities of the parent or affiliate, the interest in the applicant held by the parent or affiliate and the extent to which the parent will be responsible for the financial and contractual obligations of the subsidiary;

(xiii) the most recent financial statement of the applicant prepared in accordance with generally accepted accounting principles (GAAP) applied on a consistent basis and certified by an independent certified public accountant, including a balance sheet as of the end of the applicant's last fiscal year and income statements for the past two fiscal years, or such shorter period of time as the operator has been in operation;

(xiv) if construction, lease, rental or purchase of the community has not been completed, a statement indicating the anticipated source and application of the funds to be used in such purchase, lease, rental or construction which shall include but not be limited to:

(a) an estimate of the cost of purchasing, leasing, renting, constructing and equipping the community, including at a minimum, related costs such as financing expenses, legal expenses, land costs, occupancy development costs, and all other similar costs which the operator will incur or become obligated for prior to the occupancy of the community; (b) a projection of the estimated operating expenses of the community, including a description of the assumptions used in calculating the expenses and separate allowances, if any, for the replacement of equipment and furnishings and any anticipated major structural repairs or additions;

(c) an estimate of any funds which are anticipated to be required to fund start-up losses and to assure full performance of all obligations of the operator pursuant to the life care contracts including, but not limited to the reserves required to be maintained pursuant to the applicable regulations of the New York State Department of Insurance;

(d) an estimate of the total entrance fees to be received upon completion of occupancy;

(e) a projection of estimated income from fees and charges other than entrance fees, a description of the individual rates to be charged, and the assumptions used in calculating the estimated occupancy rate of the community;

(f) the anticipated terms and costs of any mortgage loan or other long term financing of the community; and

(g) a statement of actual and anticipated assets pledged as collateral for any purpose; and

(15) such additional pertinent information or documents necessary for the council's consideration, as requested.
 

Effective Date: 
Wednesday, July 27, 1994
Doc Status: 
Complete

Section 900.4 - Requirements for approval

900.4 Requirements for approval. (a) The application must be complete and in proper form. It shall provide all the information essential for the Life Care Community Council's consideration.

(b) The council shall not act upon an application for a certificate of authority unless all approvals and consents required by law have been obtained including:

(1) approval by the Superintendent of Insurance as to:

(i) the actuarial principles involved;

(ii) the financial feasibility of the facility;

(iii) the form and content of the proposed life care contract between the community and its residents;

(iv) the form and content of any agreements between the community and licensed insurers requiring the insurers to assume, wholly or in part, the cost of medical or health related services to be provided pursuant to the life care contract; and

(v) the rates and rating system, if any, including detailed formula or formulas to be applied by the operator in the calculation of future entrance fees and monthly care fees;

(2) approval by the Commissioner of Social Services of those components of the application pertaining to adult care facility beds, if any;

(3) approval by the Public Health Council as to the establishment of a nursing home or other facilities and services which require the Public Health Council's approval e.g., diagnostic and treatment center, certified home health agency or licensed home care services agency; and

(4) approval by the commissioner as to the construction of a nursing home or other facilities and services which require the commissioner's approval e.g., diagnostic and treatment center, certified home health agency or licensed home care services agency.

(c) The applicant must satisfactorily demonstrate to the council:

(1) that the proposed community will meet a need and will fulfill the purposes of Article 46 of the Public Health Law;

(2) that the applicant has satisfied all of the requirements of Article 46 of the Public Health Law and this part;

(3) that the controlling person of the applicant, the manager, the sole proprietor applicant, general partners of a partnership applicant and the officers and the members of the board of directors of a corporate applicant, management corporation or parent corporation are of such character, experience, competence and standing in the community as to give reasonable assurance of their ability to conduct the affairs of the community in the best interests of the community and in the public interest and to provide proper care for those to be served by the community;

(4) in the case of a public or government agency, that the governing authority of the governmental subdivision applying to operate the life care community has provided reasonable assurance of its ability to conduct the affairs of the life care community in the best interests of the community and in the public interest, and to provide proper care for those to be served by the community; and

(5) that the applicant has the capability to organize, market, manage, promote and operate the community in a financially feasible and capable manner and its ability to meet its obligations pursuant to Article 46 of the Public Health Law; and

(6) the applicant has demonstrated that the combined total number of beds for the nursing facility component and the adult care facility component, if any, is reasonably related to the number of independent living units proposed for the community.

(d) In conducting a character and competence review, the council shall, as applicable, evaluate any controlling persons of the applicant, any sole proprietor applicant, any general partners of a partnership application and any officers and members of the board of directors of a corporate applicant, corporate general partner, parent corporation and in the case of a governmental subdivision as the applicant, the governmental subdivision and the governing body thereof as a whole rather than the individual elected or appointed members thereof, by:

(1) reviewing the findings of inspection reports, resident care reviews, complaint investigations and any other pertinent information relating to the operation of any life care, health care and/or adult care operation located in New York or elsewhere with which the individual has been affiliated as a controlling person, sole proprietor, general partner or governmental operator during the past ten years;

(2) reviewing whether such individual, partnership, corporation, other organization or governmental subdivision exercised supervisory responsibility of the life care, health care and/or adult care operation to assure a consistent pattern of compliance with applicable standards and to prevent conditions which could result in harm to the health, safety or welfare of the residents; (3) determining that, if a violation of applicable standards did occur, that the individual, partnership, corporation, other organization or governmental subdivision implemented an acceptable plan of correction; and

(4) with respect to a manager who will be responsible for the day-to-day operations of the proposed community, the information required pursuant to this subdivision for any life care, health care, and/or adult care operation for which the manager was responsible under a management contract;

(5) considering such other pertinent matters relating to the character, competence and standing in the community of the applicant.

(e) The department may request any additional information required by the council or any of the reviewing agencies. Such information shall be provided to the department within thirty days of the request, unless an extension has been granted. Any request for such extension of time shall set forth the reasons why such information could not be obtained within the prescribed time. The granting of such extension of time shall be at the discretion of the commissioner, provided such extensions are not for more than thirty days and the commissioner is satisfied as to the reasons why such information could be not obtained within the prescribed time. Failure to provide such information within the time prescribed shall constitute an abandonment and withdrawal of the application by the applicant. The commissioner is authorized to deny a request for an extension of time.

(f) The applicant must also supply any authorization the Commissioner requests in order to verify any information contained in the application or to obtain additional information which the Commissioner finds is pertinent to the application. Failure to provide such authorization shall constitute an abandonment and withdrawal of the application.

(g) The council shall have sixty days from the date of the last approvals required under subdivision (b) of this section to either approve or disapprove the application.
 

Effective Date: 
Wednesday, July 27, 1994
Doc Status: 
Complete

Section 900.5 - Amendments to applications

900.5 Amendments to applications. (a) An application made to the Life Care Community Council, may be amended while the application is pending before the council. Such amendments shall be made on appropriate forms supplied by the department.

(b) Any amendment to an application which constitutes a substantial change in the information contained in the original application, or any subsequent amendments thereto, must be accompanied by a satisfactory written explanation as to the reason such information was not contained in the original application.

(c) Changes which constitute an amendment include, but are not limited to:

(1) any substantive changes to the life care contract or the disclosure statement;

(2) changes in the construction timetable;

(3) changes in the proposed operator; and

(4) in the case of a community which contracts for management services, changes in this contracted management entity.
 

Effective Date: 
Wednesday, September 18, 1991
Doc Status: 
Complete

Section 900.6 - Withdrawals of applications

900.6 Withdrawals of applications. An application made to the Life Care Community Council may, upon written request of the applicant to the Commissioner, be withdrawn prior to a decision by the council at any time without prejudice to resubmission.
 

Effective Date: 
Wednesday, September 18, 1991
Doc Status: 
Complete

Section 900.7 - Decisions

900.7 Decisions. (a) The Life Care Community Council shall by majority vote either approve or disapprove the application.

(b) Copies of the resolution of the council approving or disapproving an application shall be transmitted to the applicant.

(c) If the council disapproves the application, the commissioner shall provide notice to the applicant of the opportunity to request a public hearing.

(1) The applicant shall have thirty days from such notice to request a public hearing.

(2) Any public hearing held pursuant to this section shall be conducted by the council, a committee of the council, or by any individual designated by the council.

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

Effective Date: 
Wednesday, September 18, 1991
Doc Status: 
Complete

Section 900.8 - Certificate of authority

900.8 Certificate of authority. (a) The certificate of authority shall authorize an approved applicant:

(1) to operate a life care community and to enter into life care contracts pertaining to such community;

(2) to prepare and publicize information that details the terms of the life care contract relating to the approved community;

(3) to advertise the approved community and related services that will be provided; and

(4) to offer and execute contracts including the collection of application fees, entrance fees and deposits.

(b) Upon issuance of a certificate of authority, the commissioner, in consultation with the council, may authorize an operator to provide, for a period not to exceed seven years, nursing home services to persons, who are not residents of the community, provided, however, that the operator shall not discriminate in the admissions, retention or care of any such persons because such person is or will be eligible for or receives or will receive, medical assistance benefits pursuant to Title 11 of Article 5 of the Social Services Law. The operator may seek an extension of this authorization at the end of the seven year period upon written application to the commissioner.

(c) Upon issuance of a certificate of authority, the Commissioner of Social Services, in consultation with the council, may authorize an operator to provide for a period not to exceed seven years, adult care facility services to persons who are not residents of the community, provided, however that the operator shall not discriminate in the admission, retention or care of any such person because such person is or will be eligible for or receives or will receive, medical assistance benefits pursuant to Title II of Article 5 of the Social Services Law or supplemental security income benefits pursuant to Title 16 of the Federal Social Security Act and any additional state payments made under Title 6 of Article 5 of the Social Services Law. The operator may seek an extension of this authorization at the end of the seven year period upon written application to the Commissioner of Social Services.
 

Effective Date: 
Wednesday, July 27, 1994
Doc Status: 
Complete

Section 900.9 - Fees

900.9 Fees. (a) Upon receipt of a certificate of authority, the approved operator shall submit to the commissioner a fee in the amount of fifty dollars per approved independent living unit within thirty days of receipt of the certificate of authority.

(b) The approved operator shall submit thereafter to the commissioner an annual fee in the amount of fifty dollars per approved independent living unit upon submission of the annual statement.
 

Effective Date: 
Wednesday, September 18, 1991
Doc Status: 
Complete

Section 900.10 - Authorization to begin construction

900.10 Authorization to begin construction. (a) Upon issuance of a certificate of authority, the operator may begin construction of the model units and a sales office.

(b) Construction of the community may begin upon written authorization of the commissioner. Such authorization shall be granted upon:

(1) proof of execution of contracts for at least fifty percent of all living units or approved phase of living units accompanied by a deposit of at least ten percent of the entrance fee. Such proof shall consist of a listing certified by the operator which includes the names, addresses and phone numbers of prospective residents and amounts of the deposits paid;

(2) obtaining all applicable permits and approvals; and

(3) satisfaction of all certificate of authority contingencies.
 

Effective Date: 
Wednesday, September 18, 1991
Doc Status: 
Complete

Section 900.11 - Long term care security program for long term care model

900.11 Long term care security program for long term care model.

(a) The Life Care Community Council may approve an application for a certificate of authority and the Commissioner may issue a certificate of authority for the establishment and operation of a life care community under an arrangement which otherwise complies with the requirements of Article 46 except that the costs of each resident's nursing facility or home health care services are paid for in whole or in part by long term care insurance obtained and paid for by the resident or by medical assistance payments in accordance with the Long Term Care Security Program for Long Term Care pursuant to Section 367(f) of the Social Services Law and Section 3229 of the Insurance Law.

(b) With regard to nursing home or home health care services provided as part of the life care contract, any elimination or waiting periods and any deductibles, co-payments, or other amounts not paid for by such long term care insurance or medical assistance payments shall be the responsibility of the life care community. The resident shall not be liable to pay any such amounts.

(c) The life care community operator shall not require that long term care insurance be purchased from a specified insurer or group of insurers and the life care community operator shall not specify a minimum acceptable benefit level in excess of that established under the Long Term Care Security Program for Long Term Care.

(d) Entrance fees and monthly care fees shall reflect that the cost of resident's nursing home and home health care services are or will be paid for in whole or in part through a long term care insurance policy and medical assistance payments.

(e) If a resident fails to maintain minimum long term care insurance coverage in accordance with the Long Term Care Security Program for Long Term Care, the life care community operator shall purchase, if possible, such coverage on behalf of and at the expense of the resident and may require an appropriate adjustment in the monthly fees paid by the resident to the life care community operator.

(1) If the life care community operator cannot purchase such long term care insurance coverage, the operator may require an adjustment in the resident's monthly fees, subject to the approval of the Superintendent, to fund the additional risk to the facility.

(2) If the resident fails to maintain such long term care insurance coverage and the life care community operator has not purchased such coverage, the operator shall be responsible for any expenses which would have been covered under the long term care insurance policy which the resident failed to maintain. The operator may add the amount of such expenses to the resident's monthly fees.
 

Effective Date: 
Wednesday, July 27, 1994
Doc Status: 
Complete