NY Pub Health L § 3610 (2021)
2021 New York Laws PBH - Public Health Article 36 - 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.  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.  (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.