Title: Section 485.4 - Certificates of incorporation.

485.4 Certificates of incorporation. (a) Any proposed or existing not-for-profit corporation desiring to file or amend a certificate of incorporation for the purpose of establishing and operating, or for the purpose of fundraising for the eventual establishment and operation of, an adult-care facility shall, prior to the endorsement of such certificate by a justice of the Supreme Court and filing with the Secretary of State, secure the written approval of the commissioner.

(b) In no event shall any existing corporation or other entity hold itself out as being authorized to operate or to raise funds for operation of a facility subject to the approval of the department without having secured the prior written approval of the department.

(c) A request for approval of a certificate of incorporation or amendment thereto for the purpose of establishing and operating an adult-care facility shall be submitted to the department in accord with the application procedures set forth in this Part.

(d) A request for approval of a certificate of incorporation or amendment thereto for the purpose of soliciting funds for the eventual establishment and operation of an adult-care facility shall contain such information as may be required to determine that the not-for-profit corporation has the competency to develop and operate a facility in compliance with applicable law and regulations, and would be successful in raising funds necessary to establish the proposed facility within a period of not more than five years from the date of the department's approval.

(e) The board of directors of a not-for-profit corporation shall have a minimum of seven members.

(f) No officer of the board of directors of a not-for-profit corporation may be, either at the time of application or thereafter, the chief administrative officer, executive director, administrator, or an employee responsible for any financial operation of the facility or program.

(g) A request from a proposed or existing not-for-profit corporation for approval of a certificate of incorporation, or amendment thereto, for the purpose of soliciting funds for the eventual establishment and operation of an adult-care facility, shall include:

(1) the certificate of incorporation and amendments thereto;

(2) a description of the governing structure of the proposed organization, including any governing boards and advisory committees;

(3) an applicant profile for each member of the board of directors and the executive director or chief administrative officer, if any;

(4) a description of the type of facility, the anticipated location, capacity, population and services;

(5) evidence of a public need for the proposed facility;

(6) statements of support from local governing bodies, elected officials, community service organizations and others potentially affected by the establishment of the proposed facility;

(7) statement of assets and liabilities, sources and amounts of working capital, loan commitments (including purpose, source, type and amount), anticipated revenues and expenses for the initial and second year;

(8) evidence that actual or potential financial resources for the establishment and operation exist and can be reasonably expected to be successfully raised within a period of not more than five years from the date of the department's approval;

(9) names and locations of each and every facility licensed by the department, the Department of Mental Hygiene pursuant to articles 19, 23 and 31 of the Mental Hygiene Law, or the Department of Health pursuant to article 28 of the Public Health Law, with which the applicant(s) is, or has been within the past 10 years an administrator, employee, incorporator, director, operator, sponsor, principal stockholder or owner; and

(10) signed authorization allowing the commissioner or designees or agents to undertake such investigations as may be necessary to ascertain the validity of statements represented to the department or to ascertain from independent sources the character, competence and standing in the community of the applicant.

(h)(1) The department shall approve or disapprove a certificate of incorporation, or amendment to an existing certificate, by either endorsement or by notice of disapproval. A certificate of incorporation not acted upon within 60 days of the receipt of all required information and documentation shall be deemed to be disapproved.

(2) Any notice of disapproval shall be in writing and shall include the reasons for disapproval.

 

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VOLUME B-1 (Title 18)

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