Certificates of Incorporation and Articles of Organization - When Approval is Necessary

Instructions for Certificates of Incorporation and Articles of Organization for Health Care and Related Entities That Require Consent From the Department of Health or the Public Health and Health Planning Council

I. Certificates of Incorporation of business and not-for-profit corporations or Articles of Organization of limited liability companies whose purposes and/or powers include the establishment or maintenance of a hospital, adult care facility or a facility providing health-related services.

Certificates of Incorporation (Certificates) or Articles of Organization (Articles), which contain any of the following purposes or powers will not be accepted for filing by the Department of State (DOS), without the written consent of the Public Health and Health Planning Council (PHHPC), the Department of Health (DOH) or the Commissioner of Health as applicable:

(1) to establish, operate or maintain a hospital as provided by Article 28 of the New York State Public Health Law (PHL) or to provide hospital services or health related services, as such terms are defined in Section 2801(4)(a) and (b) of the PHL (See PHL § 2801-a(1));

(2) to establish, operate or maintain a hospice as provided for by Article 40 of the PHL (See §§ 790.10 and 790.11 of Title 10 (Health) of the Official Compilation of the Codes, Rules and Regulations of the State of New York [10 NYCRR]);

(3) to establish and operate a managed care organization (formerly known as a health maintenance organization) or an independent practice association (IPA), as provided for by Article 44 of the PHL (See 10 NYCRR § 98-1.4(a));

(4) to establish or operate an adult home, an enriched housing program, a residence for adults, or an assisted living program, as provided for by Article 7 of the New York State Social Services Law (SSL) (See SSL §§ 460-a(1); 461-b(3)(c));

(5) to establish, operate, construct, lease or maintain an assisted living residence, as provided for by Article 46-B of the PHL (See 10 NYCRR § 1001.3(a)).

II. Obtaining consent of PHHPC or DOH

All Certificates or Articles that include among their purposes and powers the provision of the following services or the establishment and operation of the following entities require submission of a certificate of need (CON) application to the DOH prior to the issuance of a consent.

  • Hospital services or health related services (PHL Article 28)
  • Hospital (which includes acute care or general hospitals, nursing homes and diagnostic and treatment centers or clinics) (PHL Article 28)
  • Hospice (PHL Article 40)
  • Adult home (SSL Article 7)
  • Enriched housing program (SSL Article 7)
  • Residence for adults (SSL Article 7)

CON applications and information are available on the Department of Health's website: http://www.health.state.ny.us/facilities/cons/, or call (518) 402-0911. With respect to CON applications for establishment as adult care facilities (e.g. adult home, enriched housing program, residence for adults, assisted living program) pursuant to Article 7 of the Social Services Law, call (518) 408-1600.

Certificates or Articles that include among their purposes and powers the establishment or operation of a managed care organization (formerly known as a health maintenance organization) or an independent practice association (IPA), as provided for by Article 44 of the PHL require the submission of an application to DOH's Division of Managed Care. This application is also available on the Department of Health's website: http://www.nyhealth.gov/health_care/managed_care/plans/, or call (518) 474-5515.

III. Certificates or Articles which do not provide for the activities listed in section I above (items 1-5) or which provide that such activities are to occur only outside of New York State

In such cases, DOH will issue a formal letter indicating that the consent of DOH or PHHPC is not necessary. This letter can then be filed with DOS with the Certificate or Articles. To obtain a "no approval" letter, send:

  1. A photocopy (do not send the original) of the signed and dated proposed Certificate or Articles, with a request for a letter to permit filing with the Secretary of State, must be submitted to the following address:
    Director, Bureau of House Counsel
    Division of Legal Affairs
    NYS Department of Health
    Corning Tower
    Rm 2484
    Empire State Plaza
    Albany, New York 12237
    Email: Housecon@health.state.ny.us.
  2. The powers and purposes of the corporation or limited liability company (LLC) must specify that none of the activities listed in section I above will occur in the State of New York and must indicate where such activities will occur.
  3. The following language, in its entirety, must be included in the Certificate or Articles as appropriate:
    • Nothing in this [choose appropriate reference: Certificate of Incorporation or Articles of Organization] shall authorize the [choose appropriate reference: corporation or limited liability company] within the State of New York, to (1) provide hospital services or health related services, as such terms are defined in the New York State Public Health Law (PHL); (2) establish operate or maintain a hospital, a home care services agency, a hospice, a managed care organization or a health maintenance organization, as provided for by Articles 28, 36, 40 and 44 respectively, of the PHL and implementing regulations; (3) establish and operate an independent practice association, (4) establish, operate, construct, lease, or maintain an adult home, an enriched housing program, a residence for adults, or an assisted living program, as provided for by Article 7 of the New York State Social Services Law (SSL); (5) establish, operate, construct, lease or maintain an assisted living residence, as provided for by Article 46-B of the PHL; or (6) solicit any funds, contributions or grants, from any source, for the support of a PHL Article 28 facility or a SSL Article 7 facility. Additionally, nothing in this [choose appropriate reference: Certificate of Incorporation or Articles of Organization] shall authorize the [choose appropriate reference: corporation or limited liability company] to, within the State of New York, (a) hold itself out as providing or (b) provide any health care professional services that require licensure or registration pursuant to either Title 8 of the New York State Education Law, or the PHL, including, but not limited to, medicine, nursing, psychology, social work, occupational therapy, speech therapy, physical therapy, or radiation technology.
  4. The request should include the name of a contact person and his/her phone number and mailing address. Once the Certificate or Articles has been reviewed, you will be contacted by the Department of Health.

IV. Certificates of Incorporation of not-for-profit corporations that include among their purposes the solicitation of funds, contributions or grants from any source to benefit a facility that is located within the State of New York and that is licensed pursuant to PHL Article 28 (e.g. hospital, diagnostic & treatment center, nursing home) or licensed pursuant to SSL Article 7 (e.g. adult home, assisted living program, enriched housing program).

Such certificates require the written consent of the Commissioner of Health or Public Health Council prior to filing with the DOS (See Not-For-Profit Corporation Law § 404(b), (o), (t)).

The approval process requires the submission of the following to the Department of Health:

  1. A photocopy (do not send the original) of the signed and dated proposed Certificate, with a request for a letter of consent to permit filing with the Secretary of State and other documents listed below, must be submitted to the following address:
    Director, Bureau of House Counsel
    Division of Legal Affairs
    NYS Department of Health
    Corning Tower
    Rm 2484
    Empire State Plaza
    Albany, New York 12237
    Email: Housecon@health.state.ny.us.
  2. The Certificate must specifically identify the name of the supported organization;
  3. The following language, in its entirety, must be included in the Certificate:
    • Nothing in this Certificate of Incorporation shall authorize the corporation within the State of New York, to (1) provide hospital services or health related services, as such terms are defined in the New York State Public Health Law (PHL); (2) establish operate or maintain a hospital, a home care services agency, a hospice, a managed care organization or a health maintenance organization, as provided for by Articles 28, 36, 40 and 44 respectively, of the PHL and implementing regulations; (3) establish and operate an independent practice association, (4) establish, operate, construct, lease, or maintain an adult home, an enriched housing program, a residence for adults, or an assisted living program, as provided for by Article 7 of the New York State Social Services Law (SSL); or (5) establish, operate, construct, lease or maintain an assisted living residence, as provided for by Article 46-B of the PHL. Additionally, nothing in this Certificate of Incorporation shall authorize the corporation within the State of New York, to (a) hold itself out as providing or (b) provide any health care professional services that require licensure or registration pursuant to either Title 8 of the New York State Education Law, or the PHL, including, but not limited to, medicine, nursing, psychology, social work, occupational therapy, speech therapy, physical therapy, or radiation technology.
  4. The bylaws for the corporation;
  5. The original of a signed and dated letter from a duly-authorized representative of the intended supported organization, acknowledging that it will accept funds for it raised by the corporation;
  6. A generalized description of the fundraising activities to be undertaken by the corporation must be included in the request letter;
  7. A list of the following information regarding the corporation's initial Board of Directors:
    • a. Name and address,
    • b. Occupation,
    • c. Employer name and address,
    • d. Past and present affiliations with other charitable or non-profit organizations;
  8. Identification of the organizational relationship between the corporation and the licensed supported organization; and
  9. A list of any entities, which control, or are controlled by, the corporation and the nature of such relationships.

Once the above information and documentation has been reviewed by the Department of Health, you will be notified of any problems or issues. When the information is found to be legally acceptable, it will be forwarded to the Commissioner of Health or the PHHPC.

Once the PHHPC has approved the Certificate of Incorporation, you will receive an original letter from the Executive Secretary of the Council, which must accompany your Certificate of Incorporation when filed with the Secretary of State.