2013 New York Consolidated Laws
PBH - Public Health
Article 36 - (3600 - 3622) HOME CARE SERVICES
3610 - Authorization to provide a long term home health care program.

 
    § 3610. Authorization to provide a long term home health care program.
  1.  A  long  term  home  health  care  program may be provided only by a
  certified home health agency, or by a residential health  care  facility
  or  hospital  possessing  a  valid  operating  certificate  issued under
  article twenty-eight of this chapter. No agency,  facility  or  hospital
  shall  provide  a long term home health care program without the written
  authorization of the commissioner to provide such a program.
    2. A hospital, residential health care  facility,  or  certified  home
  health  agency  seeking authorization to provide a long term home health
  care program shall transmit to the commissioner an  application  setting
  forth  the scope of the proposed program. Such application shall be in a
  format  and  shall  be  submitted  in  a  quantity  determined  by   the
  commissioner.  The  commissioner  shall  transmit the application to the
  public health and health planning council  and  to  the  health  systems
  agency,  if  any,  having  geographic jurisdiction of the area where the
  proposed program is to be  located.  The  application  shall  include  a
  detailed  description of the proposed program including, but not limited
  to, the following:
    (a) an outline of the institution's or agency's plans for the program;
    (b) the need for the proposed program;
    (c) the number and types of personnel to be employed;
    (d) the ability of the agency, hospital, or facility  to  provide  the
  program;
    (e) the estimated number of visits to be provided;
    (f)  the  geographic  area  in  which  the  proposed  programs will be
  provided;
    (g) any special or unusual services,  programs,  or  equipment  to  be
  provided;
    (h) a demonstration that the proposed program is feasible and adequate
  in terms of both short range and long range goals;
    (i) such other information as the commissioner may require.
    The  health  systems  agency and the public health and health planning
  council shall review the application and submit their recommendations to
  the commissioner. At the time members of the public  health  and  health
  planning  council  are  notified  that  an  application is scheduled for
  consideration, the applicant and the health systems agency shall  be  so
  notified  in writing. The health systems agency or the public health and
  health planning council shall not recommend approval of the  application
  unless it is satisfied as to:
    (a)  the  public  need for the program at the time and place and under
  the circumstances proposed;
    (b) the financial resources of the provider of  the  proposed  program
  and its sources of future revenues;
    (c)  the  ability  of  the  proposed  program  to meet those standards
  established for participation as a home health agency under title  XVIII
  of the federal Social Security Act; and
    (d) such other matters as it shall deem pertinent.
    After  receiving  and  considering  the  recommendations of the public
  health and health planning council and the health  systems  agency,  the
  commissioner shall make his or her determination. The commissioner shall
  act  upon  an  application  after  the public health and health planning
  council and the health systems agency have  had  a  reasonable  time  to
  submit their recommendations. The commissioner shall not take any action
  contrary  to  the  advice of either until he or she affords to either an
  opportunity to request a public hearing and, if so requested,  a  public
  hearing   shall   be  held.  The  commissioner  shall  not  approve  the
  application unless he or she is satisfied as to the detailed description
  of the proposed program and

    (a) the public need for the existence of the program at the  time  and
  place and under the circumstances proposed;
    (b)  the  financial  resources of the provider of the proposed program
  and its sources of future revenues;
    (c) the ability of  the  proposed  program  to  meet  those  standards
  established  for participation as a home health agency under title XVIII
  of the federal Social Security Act; and
    (d) such other matters as he or she shall deem pertinent.
    If the application is approved, the applicant shall be so notified  in
  writing.  The  commissioner's  written approval of the application shall
  constitute authorization  to  provide  a  long  term  home  health  care
  program.  In  making  his  or  her authorization, the commissioner shall
  stipulate the maximum number of persons which a provider of a long  term
  home  health  care  program  may  serve. If the commissioner proposes to
  disapprove the application, he or she  shall  notify  the  applicant  in
  writing,  stating  his  or  her  reasons for disapproval, and afford the
  applicant an opportunity for a public hearing.
    3. Authorization to provide a long term home  health  program  may  be
  revoked,  suspended,  limited  or  annulled by the commissioner on proof
  that a provider of a long term home health care program  has  failed  to
  comply  with  the  provisions  of  this article or rules and regulations
  promulgated thereunder.
    4. (a) Such authorization shall not be revoked, suspended, limited  or
  annulled   without   a  hearing.  However,  such  authorization  may  be
  temporarily suspended or limited without a hearing for a period  not  in
  excess of thirty days upon written notice to the provider of a long term
  home  health care program following a finding by the department that the
  public health or safety is in imminent danger.
    (b) The commissioner shall fix a time and place  for  the  hearing.  A
  copy  of  the charges, together with the notice of the time and place of
  the hearing, shall be served  in  person  or  mailed  by  registered  or
  certified  mail  to the provider of a long term home health care program
  at least twenty-one days before the date fixed  for  the  hearing.  Such
  provider  shall  file with the department not less than eight days prior
  to the hearing, a written answer to the charges.
    (c) All orders or determinations hereunder shall be subject to  review
  as  provided  in  article  seventy-eight  of  the civil practice law and
  rules.  Application for such review must be made within sixty days after
  service in person or by registered or certified mail of a  copy  of  the
  order or determination upon the applicant.
    5.  (a)  Notwithstanding  the  provisions  of subdivision four of this
  section,  the  commissioner  shall  suspend,   limit   or   revoke   the
  authorization  of  a  provider  of  a long term home health care program
  after taking into consideration the public need for the program and  the
  availability  of  other  services  which  may  serve  as alternatives or
  substitutes, and after finding that suspending,  limiting,  or  revoking
  the  authorization  of such provider would be within the public interest
  in order to conserve  health  resources  by  restricting  the  level  of
  services to those which are actually needed.
    (b)  Notwithstanding  the  provisions  of  subdivision  four  of  this
  section, the commissioner may reduce the maximum number of persons which
  a provider of a long term home health  care  program  is  authorized  to
  serve  after  finding  that  the  number  stipulated  in such provider's
  authorization is  not  being  effectively  utilized.  In  addition,  the
  commissioner  may  increase  the number of persons which a provider of a
  long term home health care program is authorized to serve after  finding
  that   the   number  stipulated  in  such  provider's  authorization  is

  insufficient to serve persons eligible to receive long term home  health
  care who reside in the area served by such provider.
    (c)  Whenever  any  finding  as  described  in  paragraph  (a) of this
  subdivision is  under  consideration  with  respect  to  any  particular
  provider of a long term home health care program, the commissioner shall
  cause  to  be  published,  in  a newspaper of general circulation in the
  geographic area of such provider, at least thirty days prior  to  making
  such   a   finding  an  annnouncement  that  such  a  finding  is  under
  consideration and an address to which interested persons  can  write  to
  make  their views known. The commissioner shall take all public comments
  into consideration in making such a finding.
    (d) The commissioner shall,  upon  making  any  finding  described  in
  paragraph (a) of this subdivision with respect to any provider of a long
  term  home  health care program, cause such provider and the appropriate
  health systems agency to be notified of the finding at least thirty days
  in advance of taking the proposed  action.  Upon  receipt  of  any  such
  notification and before the expiration of the thirty days or such longer
  period  as  may  be  specified  in  the  notice,  the  provider  or  the
  appropriate health systems agency may request a  public  hearing  to  be
  held  in  the county in which the provider is located. In no event shall
  the revocation, suspension  or  limitation  take  effect  prior  to  the
  thirtieth  day  after  the date of the notice, or prior to the effective
  date specified in the notice  or  prior  to  the  date  of  the  hearing
  decision, whichever is later.
    (e) Except as otherwise provided by law, all appeals from a finding of
  the  commissioner  made  pursuant  to  paragraph (a) of this subdivision
  shall be directly to the appellate division of the supreme court in  the
  third  department.  Except  as otherwise expressly provided by law, such
  appeals shall have preference over all issues in all courts.
    6.  (a)  The  commissioner  shall  charge  to   applicants   for   the
  authorization  or construction of long term home health care programs an
  application fee of two thousand dollars. Each such applicant  shall,  at
  such  time  as  the  commissioner's  written  approval of a construction
  application is granted, pay an additional fee of  thirty  hundredths  of
  one percent of the total capital value of the application.
    (b) The fees paid by an applicant pursuant to this subdivision for any
  application  approved  in  accordance  with this section shall be deemed
  allowable costs in the determination of reimbursement rates  established
  pursuant  to  this  article.  All fees pursuant to this section shall be
  payable to the department of health for deposit into the special revenue
  funds - other, miscellaneous special revenue fund - 339, certificate  of
  need account.