(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: bylaws, 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)
of this Title 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;
(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 subparagraph (i) of this paragraph is a partnership, then the name
and address of each general partner;
(iii) if any person named in response to
subparagraph (i) of this paragraph 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
subparagraph (i) of this paragraph 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 12 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 corporations 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) of this
paragraph 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 10 percent interest or greater in any professional
service, firm, association, foundation, trust, partnership, corporation, or
other entity or if such entity maintains a 10 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 $500 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 nonprofit organization and if
so, the extent of such affiliation or contractual arrangement including the
extent to which the nonprofit 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 startup 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 Insurance
Department;
(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.