2012 New York Consolidated Laws
PBH - Public Health
Article 28 - (2800 - 2823) HOSPITALS
2803 - Commissioner and council; powers and duties.

 
    §  2803.  Commissioner  and  council;  powers  and  duties. 1. (a) The
  commissioner shall have the power  to  inquire  into  the  operation  of
  hospitals and to conduct periodic inspections of facilities with respect
  to the fitness and adequacy of the premises, equipment, personnel, rules
  and  by-laws,  standards  of  medical  care, hospital service, including
  health-related service, system of accounts, records, and the adequacy of
  financial resources and sources of future revenues. The commissioner  or
  persons  designated  by  him  shall  conduct  at  least  one unannounced
  comprehensive inspection of each residential health  care  facility  not
  later  than  fifteen  months  after  the  previous  such  inspection  to
  determine the  adequacy  of  care  being  rendered.  Such  comprehensive
  inspection  shall  include, but not be limited to, a survey to determine
  compliance by the facility with applicable statutes and regulations, and
  observation of a representative sample of all patients or residents  and
  their  medical records to determine the quality and adequacy of the care
  and treatment provided. Additional visits shall be made to facilities as
  needed  to  determine  whether  violations  or  deficiencies  have  been
  corrected,   to   investigate   any  report  made  pursuant  to  section
  twenty-eight hundred three-d of this article or any other complaint, and
  for  any  other  purpose  deemed  necessary  and  appropriate   by   the
  commissioner.  Any  employee of the department who gives or causes to be
  given advance notice of such unannounced inspection to any  unauthorized
  person  shall,  in  addition  to  any  other penalty provided by law, be
  suspended by the commissioner from all duties without pay for  at  least
  five  days  or for such greater period of time as the commissioner shall
  determine. Any such suspension shall be  made  by  the  commissioner  in
  accordance with all other applicable provisions of law.
    (b) The purpose of such inspection shall be to determine compliance by
  residential  health  care facilities with statutes, and with regulations
  promulgated under the provisions of those  statutes,  governing  minimum
  standards  of  construction,  quality  and  adequacy  of care, rights of
  patients,  rates  of  payment  and  reimbursement.  At  least  one  such
  inspection  every fifteen months shall include, but shall not be limited
  to, full on-site examination of the medical, nursing care,  dietary  and
  social services records of the facility.
    (c)  The  commissioner shall establish, in consultation with the state
  office for the aging, a  consumer  information  system  for  residential
  health  care  facilities  with  respect  to  their  compliance  with the
  standards set forth in this section designed  to  provide  accurate  and
  comprehensible  information  to  consumers  on the quality of facilities
  which shall incorporate a summary of the findings  and  results  of  the
  inspections  conducted  pursuant to the provisions of this section. Such
  summary of results and findings shall include, but need not  be  limited
  to,  a  listing  of  areas in which items were found at the time of such
  inspections to be not in compliance with such standards and  the  nature
  of  such  non-compliance. Each residential health care facility shall be
  issued a summary  of  the  findings  of  inspections  of  such  facility
  conducted  since the issuance of the previous summary of findings, which
  shall be posted  conspicuously  within  such  facility,  and  any  other
  information  relating  to  the  facility  available through the consumer
  information  system.  The  commissioner  shall  promulgate   rules   and
  regulations  necessary  to implement the provisions of this paragraph. A
  facility  may  appeal  the  accuracy  of  a  summary  findings  to   the
  commissioner  within  twenty  days  after  receipt  of such summary. The
  results and findings of any prior inspections, and any penalties thereby
  assessed, which have not been previously appealed and  overruled,  shall
  not be subject to review.

    (d)  (i)  Notwithstanding  any  inconsistent  provision  of  law,  the
  commissioner  or  his  designee  shall  determine  the   necessity   and
  appropriateness  of  care and services provided by hospitals to patients
  eligible for medical assistance pursuant to title eleven of article five
  of the social services law and shall further determine whether a general
  hospital  has  taken an action that results in the admission of patients
  unnecessarily, unnecessary multiple admissions  of  the  same  patients,
  inappropriate  discharge of patients, inappropriate transfer of patients
  between hospitals or between distinct units of a hospital, inappropriate
  diagnosis-related group coding, or other inappropriate medical or  other
  practices  with  respect to hospitalized inpatients eligible for medical
  assistance pursuant to title  eleven  of  article  five  of  the  social
  services law. In making such determinations the commissioner may utilize
  the    services    of   department   personnel   or   other   authorized
  representatives.  The  hospitals   shall   provide   such   information,
  facilities  and  services as may be required by the commissioner to make
  such determinations. The commissioner, in implementing  this  paragraph,
  shall adopt necessary rules and regulations including but not limited to
  those  for  determining the necessity or appropriate level of admission,
  controlling the length of stay,  the  provision  of  surgery  and  other
  services, and the methods and procedures for making such determinations.
    (ii)   In   the  event  the  commissioner  or  his  designee  makes  a
  determination pursuant to this paragraph  that  a  general  hospital  or
  physician  has  taken  an  inappropriate action resulting in a denial or
  adjustment of payment determined in accordance with section twenty-eight
  hundred seven-c of this article, the general hospital or physician which
  is the subject of such determination  shall  be  entitled  to  a  review
  before  the commissioner or an appeal agent designated for such purposes
  by the commissioner at which such hospital or  physician  may  challenge
  such  determination.  In  order  to  be  entitled  to  such review, such
  hospital or physician must provide the commissioner or his designee,  as
  appropriate,  with  a written request for such review within thirty days
  of receipt  of  the  written  determination.  During  such  review,  the
  hospital  or  physician may present documentation or evidence in support
  of its challenge  to  the  determination,  and  representatives  of  the
  commissioner  or  his  designee may present documentation or evidence in
  support of the determination.  In the event that  the  determination  is
  sustained,  the  hospital  or  physician may seek judicial review of the
  decision pursuant to article seventy-eight of the civil practice law and
  rules.
    (iii) The commissioner shall certify to the social services  officials
  responsible  for  making  payments for authorized hospital services that
  specified items of care and services for specified individuals  eligible
  for  medical  assistance pursuant to title eleven of article five of the
  social services  law  are  inappropriate  or  unnecessary  and  are  not
  authorized  for payment or are authorized for payment at the appropriate
  level of care under the medical  assistance  program  and,  for  general
  hospitals,  for  rate  periods  beginning  on  or  after  January first,
  nineteen  hundred  eighty-eight  through  March  thirty-first,  nineteen
  hundred  ninety-seven,  at  the  appropriate  case based rate of payment
  determined pursuant to section  twenty-eight  hundred  seven-c  of  this
  article.
    (e)   Notwithstanding   any   inconsistent   provision   of  law,  the
  commissioner or his designee shall, not later than July first,  nineteen
  hundred  seventy-six,  determine  on an individual patient basis whether
  identifiable periods of  in-patient  care  in  a  general  hospital  are
  required  beyond  the  maximum  length  of  stay established pursuant to
  section three hundred sixty-five-a  of  the  social  services  law,  and

  whether  deferral  of surgical procedures specified by such commissioner
  in accordance with paragraph (c) of subdivision five of such section may
  jeopardize life or essential function, or cause severe pain.  In  making
  such  determinations  the  commissioner  may  utilize  the  services  of
  department personnel or other authorized representatives. The  hospitals
  shall  provide  such  information,  facilities  and  services  as may be
  required  by  the  commissioner  to  make   such   determinations.   The
  commissioner,  in  implementing  this  paragraph,  shall adopt necessary
  rules and regulations including but  not  limited  to  the  methods  and
  procedures  for  making  such  determinations and the utilization of any
  department staff or other authorized  representatives  located  at  such
  hospital  in performing other functions relating to assuring that public
  funds for medical assistance are utilized exclusively to  provide  items
  of  care  and  services  in  amount,  duration  and  scope  specifically
  authorized under the medical assistance program. The commissioner  shall
  certify to the social services officials responsible for making payments
  for  authorized  hospital  services  that  specified  items  of care and
  services for specified individuals are not authorized for payment  under
  the medical assistance program.
    (f)   Notwithstanding   any   inconsistent   provision   of  law,  the
  commissioner shall establish standards for determining the necessity  of
  care and service for alcoholism and alcohol abuse provided by hospitals.
  In  implementing  this  paragraph the commissioner, in consultation with
  the director of the division of  alcoholism  and  alcohol  abuse,  shall
  adopt necessary rules and regulations including but not limited to those
  for  determining  the  necessity  or  appropriate  level  of  admission,
  controlling  the  length  of  stay,  the  provision  of   services   and
  establishing the methods and procedures for making such determinations.
    (g)  The  commissioner shall require that every general hospital adopt
  and  make  public   an   identical   statement   of   the   rights   and
  responsibilities  of patients, including a patient complaint and quality
  of care review process, a right to an appropriate patient discharge plan
  and for patients other than beneficiaries of title XVIII of the  federal
  social  security  act  (medicare)  a  right  to  a  discharge  review in
  accordance with section twenty-eight hundred three-i  of  this  article.
  The form and content of such statement shall be determined in accordance
  with  rules  and  regulations adopted by the council and approved by the
  commissioner.  A patient who requires continuing health care services in
  accordance with such patient's discharge  plan  may  not  be  discharged
  until  such  services  are  secured  or determined by the hospital to be
  reasonably available to the patient. Each general hospital shall give  a
  copy  of  the  statement  to  each  patient,  or  the appointed personal
  representative of the patient at or prior to the time  of  admission  to
  the  general  hospital, as long as the patient or the appointed personal
  representative of the patient  receives  such  notice  no  earlier  than
  fourteen   days   before   admission.   Such  statement  shall  also  be
  conspicuously posted by  the  hospital  and  shall  be  a  part  of  the
  patient's admission package. Nothing herein contained shall be construed
  to  limit  any  authority  vested  in  the commissioner pursuant to this
  article related to the operation of  hospitals  and  care  and  services
  provided to patients.
    * (h)  Every hospital providing treatment to alleged victims of family
  offenses as defined in article eight of the family court act and section
  530.11 of the criminal procedure law shall be responsible for  providing
  a copy of a notice to victims of family offenses as described in section
  eight  hundred  twelve  of  the  family court act and subdivision six of
  section 530.11 of the criminal procedure  law.  The  commissioner  shall

  promulgate  such rules and regulations as may be necessary and proper to
  carry out effectively the provisions of this paragraph.
    * NB There are 2 š(h)'s
    * (h)  The  statement  regarding  patient  rights and responsibilities
  which the commissioner shall approve as provided under paragraph (g)  of
  this  subdivision  shall  include a provision stating that every patient
  shall have the right to authorize those family members and other  adults
  who  will  be  given  priority  to  visit  consistent with the patient's
  ability to receive visitors.
    * NB There are 2 š(h)'s
    (i) The  statement  regarding  patient  rights  and  responsibilities,
  required  pursuant  to  paragraph (g) of this subdivision, shall include
  provisions informing the patient of his or  her  right  to  make  organ,
  tissue  or  whole body donations, and the means by which the patient may
  make such a donation. The commissioner shall promulgate  any  rules  and
  regulations necessary to implement the provisions of this paragraph.
    * (j)  As  used  with  regard  to applicable regulations issued by the
  department implementing  the  statement  regarding  patient  rights  and
  responsibilities required pursuant to paragraph (g) of this subdivision,
  the  term  "itemized  bill"  shall, for all periods on and after January
  first, two thousand eleven, be defined as reflecting a charges  schedule
  developed  by  each  hospital  for all ancillary patient services, which
  schedule shall set forth separate charges  for  each  ancillary  service
  provided.
    * NB There are 2 š(j)'s
    * (j)  The  commissioner  shall  require  that the statement regarding
  patient rights and responsibilities, described in paragraph (g) of  this
  subdivision,  shall  include a provision informing the patient of his or
  her right to not be discriminated against on account of age.
    * NB There are 2 š(j)'s
    2. (a) The council, by a majority vote of its members, shall adopt and
  amend  rules  and  regulations,  subject  to   the   approval   of   the
  commissioner, to effectuate the provisions and purposes of this article,
  including, but not limited to:
    (i)  the  establishment of requirements for a uniform statewide system
  of reports and audits relating to the quality of  medical  and  physical
  care  provided,  hospital  utilization,  and  costs  in  accordance with
  section twenty-eight hundred three-b of this article,
    (ii) establishment by the department of schedules of rates,  payments,
  reimbursements, grants and other charges for hospital and health-related
  services   as   provided   in   sections   twenty-eight  hundred  seven,
  twenty-eight  hundred  seven-a,   twenty-eight   hundred   seven-c   and
  twenty-eight  hundred  eight  of this article. The schedules established
  shall be reasonable and  adequate  to  meet  the  costs  which  must  be
  incurred   by  efficiently  and  economically  operated  facilities.  In
  adopting regulations related to  the  computation  of  general  hospital
  inpatient  payments,  the  council  shall  take  into  consideration the
  elements of cost, geographical differentials in  the  elements  of  cost
  considered,  economic  factors  in  the  area  in  which the hospital is
  located, costs of  hospitals  of  comparable  size,  and  the  need  for
  incentives  to  improve  services  and  institute economies. The council
  shall exclude from consideration in the regulations adopted nonallowable
  costs such as the costs for research and those parts of  the  costs  for
  educational  salaries  which  the  council determines to be not directly
  related to hospital service,
    (iii) the identification of appropriate and reasonable  standards  for
  the  development  of  acceptable  collection  procedures used by general
  hospitals  in  an  effort  to  collect  unpaid  bills   prior   to   the

  determination   that  the  unpaid  bill  is  a  bad  debt  eligible  for
  reimbursement consideration  pursuant  to  paragraphs  (e)  and  (f)  of
  subdivision  eight  of section twenty-eight hundred seven-a or paragraph
  (b)  of subdivision fourteen of section twenty-eight hundred seven-c and
  twenty-eight hundred seven-k of this article,
    (iv) subject to the provisions of paragraph (e) of subdivision  eleven
  of  section  twenty-eight hundred seven-a of this article or subdivision
  nine of section  twenty-eight  hundred  seven-c  of  this  article,  the
  establishment  of  guidelines  regarding  the  time  to  resolve appeals
  submitted by general  hospitals.  The  council  may  consider  different
  periods  depending upon whether the basis for the appeal is related to a
  general hospital's existing costs or anticipated future costs,
    (v)  standards  and  procedures   relating   to   hospital   operating
  certificates, provided however, that the council shall establish minimum
  acceptable   standards   and  procedures  equal  to  the  standards  and
  procedures which federal law and regulation  require  for  hospitals  to
  qualify  as  providers  pursuant  to titles XVIII and XIX of the federal
  social security act. The existing  state  standards  and  procedures  in
  effect  on  the  date  that  this subdivision becomes effective shall be
  deemed to constitute maximum standards and procedures  for  purposes  of
  limiting   medical  assistance  reimbursement  pursuant  to  the  social
  services law. Such standards and procedures may thereafter be changed or
  added  to  by  the  council  only  upon  the   recommendation   of   the
  commissioner. For the purposes of ensuring that the health and safety of
  the   residents  of  hospitals  are  not  endangered,  the  council  may
  promulgate changes in the minimum acceptable  standards  and  procedures
  referred to herein upon recommendation of the commissioner, and
    (vi) the establishment of a system of accounts and cost findings to be
  used  by hospitals, including a classification of such hospitals and the
  prescription of a system of accounts and cost finding for each class  in
  accordance  with  sections twenty-eight hundred three-b and twenty-eight
  hundred five-a of this article.
    (b) The commissioner may propose rules and regulations and  amendments
  thereto for consideration by the council.
    3.  The  commissioner  may  enter  into  contracts  with any political
  subdivision, voluntary non-profit agency or health  systems  agency  and
  such   entities   are  authorized  to  enter  into  contracts  with  the
  commissioner to  effectuate  the  purposes  of  this  article,  however,
  contracts with voluntary non-profit agencies may not provide for payment
  for general hospital out-patient and emergency services or for treatment
  or  diagnostic center services unless the commissioner is satisfied that
  the costs incurred for such services  are  approvable  pursuant  to  the
  provisions of section twenty-eight hundred seven of this article.
    4.  At the request of the commissioner, hospitals shall furnish to the
  department such reports and information as it may require to  effectuate
  the provisions of this article.
    5. The commissioner may institute or cause to be instituted in a court
  of  competent  jurisdiction  proceedings  to  compel compliance with the
  provisions of this article or the determinations, rules, regulations and
  orders of the commissioner or the council.
    6. The council, by a majority vote of its members and subject  to  the
  approval  of  the  commissioner,  shall  adopt  rules and regulations to
  establish (a) a system of penalties of up to one  thousand  dollars  per
  day  for  continuing  violations  of  rules  and regulations promulgated
  pursuant to article twenty-eight  of  this  chapter  and  pertaining  to
  patient  care  by  residential  health  care  facilities, specifying the
  violations and the amount of the penalty to be  assessed  in  connection
  with  each such violation, and (b) a system by which the rate of payment

  approved for a residential health  care  facility  pursuant  to  section
  twenty-eight  hundred  seven  of  this  chapter  and  certified  to  the
  department of social services  for  purposes  of  reimbursement  in  the
  medical  assistance  program, is reduced in sufficient amount to collect
  such penalties. Any reduction of rate  to  collect  penalties  shall  be
  limited  to  five  percent of the otherwise established per diem rate or
  that portion of the per diem rate which represents the owner's return on
  equity, as defined by regulation, whichever is less.
    7. The commissioner shall  have  the  power  to  assess  penalties  in
  accordance  with the system of penalties adopted pursuant to subdivision
  six of this section and pursuant to a hearing  conducted  in  accordance
  with  section  twelve-a  of  this  chapter. No penalty shall be assessed
  pursuant to subdivision six of this  section  unless  the  facility  has
  received  at  least  thirty  days written notice of the existence of the
  violation, the amount of the penalty for which it may become liable  and
  the  steps which must be taken to rectify the violation. If the facility
  fails to rectify the violation within said thirty day period,  it  shall
  thereafter  be  liable  for  such  penalty.  Any such penalties shall be
  subject to release and compromise by the commissioner in the same manner
  as a penalty provided by subdivision  one  of  section  twelve  of  this
  chapter.  Any  penalty  assessed  pursuant  to  subdivision  six of this
  section shall be subject to recovery in the same  manner  as  a  penalty
  provided  by  subdivision  one  of  section  twelve  of  this chapter or
  pursuant to the system for reduction of  the  rate  of  payment  to  the
  facility  adopted  pursuant  to  clause  (b)  of subdivision six of this
  section. Any such penalty assessed pursuant to subdivision six  of  this
  section  shall  be  additional  and cumulative to all other penalties or
  remedies existing for violations of rules  and  regulations  promulgated
  pursuant to article twenty-eight of this chapter. The provisions of this
  subdivision  shall  not  be  applicable to nor limit any power to assess
  penalties pursuant to section twelve of this chapter; provided, however,
  that if  a  penalty  is  assessed  for  a  violation  pursuant  to  this
  subdivision, no penalty shall be assessed for such violation pursuant to
  section  twelve  of  this  chapter,  and  if a penalty is assessed for a
  violation pursuant to section twelve of this chapter, no  penalty  shall
  be assessed for such violation pursuant to this subdivision.
    8.   (a)  Notwithstanding  any  inconsistent  provision  of  law,  the
  commissioner shall establish procedures to be followed by hospitals  for
  notification  to  mothers  and  reporting  under  section  three hundred
  sixty-six-g of the social services law.
    (b) Notwithstanding any inconsistent provision of  section  twelve  of
  this  chapter  or  any  other  law,  the commissioner may impose a civil
  penalty of up to three thousand five hundred dollars for each  violation
  of  the  requirements  of  subdivision  one  of  section  three  hundred
  sixty-six-g of the social services law  or  the  rules  and  regulations
  promulgated  pursuant  to  such  section, pertaining to reporting to the
  department, or such other entity designated by the department,  of  each
  live  birth  to  a  woman  receiving  medical assistance. Any such civil
  penalties shall be assessed subject  to  the  applicable  provisions  of
  sections twelve and twelve-a of this chapter.
    8-a.   Notwithstanding  any  inconsistent  provision  of  law  to  the
  contrary, the commissioner shall develop a program to facilitate the use
  of a triage system of care in emergency  rooms  of  hospitals  that  are
  subject  to  the  provisions of this article. In developing such program
  the commissioner shall consider the manner in which such a system  would
  be  coordinated,  how  such  a  system would provide greater efficiency,
  provide cost savings to public health programs and a higher  quality  of
  care.    Within  one  year  from  the  enactment  of  such  program, the

  commissioner shall submit a report to the  temporary  president  of  the
  senate  and  the speaker of the assembly regarding: the impact of such a
  system on the cost of Medicaid covered services in the hospital setting;
  quality  of  care  in  facilities;  along  with any other data as may be
  appropriate.
    9. (a) General  hospitals  shall,  no  later  than  April  first,  two
  thousand,  submit  to  the  commissioner a plan for compliance with part
  four hundred five of  the  official  compilation  of  codes,  rules  and
  regulations of the state of New York regarding the working conditions of
  and  limits on working hours for certain members of a hospital's medical
  staff and postgraduate trainees in such form and manner as specified  by
  the commissioner.
    (b) The commissioner shall audit each hospital for compliance with its
  plan  and  the  applicable  regulation on an annual basis. Based upon an
  initial written audit finding of noncompliance  the  commissioner  shall
  assess  a  civil  penalty  of  six thousand dollars for each instance of
  noncompliance identified in such initial audit.
    (c) Within thirty days after the hospital's receipt of written  notice
  of  noncompliance the hospital shall submit a plan of correction in such
  form  and  manner  as  specified  by  the  commissioner  for   achieving
  compliance  with  its  plan  and  with  the  applicable regulations. The
  commissioner shall audit each such hospital for compliance with its plan
  and the applicable regulations within a reasonable time after submission
  of such plan of correction. Upon a written finding by  the  commissioner
  within  one  hundred  eighty  days  of  the  initial  audit  finding  of
  noncompliance that the hospital has failed to  substantially  adhere  to
  its  plan  of  correction  the  commissioner shall assess the hospital a
  civil penalty of twenty-five thousand dollars. Upon a further subsequent
  written finding by the commissioner within one hundred  eighty  days  of
  the  initial audit finding of noncompliance that the hospital has failed
  to substantially adhere to its plan of correction the commissioner shall
  assess the hospital a civil penalty of fifty thousand dollars. Upon each
  and every subsequent written finding by the  commissioner  within  three
  hundred  sixty  days  of the initial audit finding of noncompliance that
  the  hospital  has  failed  to  substantially  adhere  to  its  plan  of
  correction the commissioner shall assess the hospital a civil penalty of
  fifty thousand dollars.
    (d)   The  penalties  assessed  pursuant  to  paragraph  (c)  of  this
  subdivision shall be subject to the provisions of  section  twelve-a  of
  this chapter.
    (e)  Hospitals  shall submit to the commissioner any data necessary to
  perform audits pursuant to this subdivision. Any hospital which fails to
  produce data or documentation requested in  furtherance  of  such  audit
  within thirty days of such request may be assessed by the commissioner a
  civil penalty of ten thousand dollars.
    10. (a) All civil penalties assessed and collected pursuant to section
  twelve  of  this  chapter for violations of this article and regulations
  promulgated thereunder related to the operation  of  residential  health
  care  facilities,  and  all  civil  monetary  penalties  related  to the
  operation of nursing facilities received from the federal government  in
  accordance  with subdivision (h) of section nineteen hundred nineteen of
  the federal social security act, shall be deposited by the  commissioner
  and  credited  to the quality of care improvement account which shall be
  established by the comptroller in the special revenue fund-other. To the
  extent of funds appropriated therefor, funds shall be made available  to
  the  department for expenditures related to the protection of the health
  or property of residents of residential health care facilities that  are
  found to be deficient.

    (b) Any funds available pursuant to paragraph (a) of this subdivision,
  not used for the purposes of paragraph (a) of this subdivision, shall be
  used,  at  the  commissioner's  discretion,  to  support  activities and
  initiatives intended to improve resident quality of care at  residential
  health  care facilities found to be deficient, as well as for such other
  purposes as  are  described  in  this  paragraph.  Such  activities  may
  include,  but  are  not  limited  to,  relocation  of residents to other
  facilities and the maintenance  and  operation  of  a  facility  pending
  correction  of  deficiencies  or closure. The commissioner may also make
  grants to residential health care facilities  that  support  facilities'
  activities  and  initiatives  intended to improve residential quality of
  care pursuant to a request for proposals process.