NY Pub Auth L § 3628 (2021)
2021 New York Laws PBA - Public Authorities Article 10-C - New York Health Care Corporations Title 6 - Erie County Medical Center Corporation 3628 - Erie County Medical Center Corporation.

§ 3628. Erie County Medical Center Corporation. 1. (a) There is hereby created  a  state  board  to  be known as the Erie County Medical Center Corporation, which shall be a body corporate and politic constituting  a public benefit corporation.  (b)  The corporation shall be governed by fifteen voting directors, of whom eight directors shall  be  appointed  by  the  governor  and  seven directors  shall  be  appointed by the county executive of the county of Erie. The  governor  shall  make  appointments  to  the  corporation  as follows:  three  directors from a recommendation submitted by the county executive of the county of Erie; three directors from  a  recommendation submitted  by  the  legislature of the county of Erie; one director, who shall be a resident  of  the  county  of  Erie,  from  a  recommendation submitted  by  the  temporary president of the senate; and one director, who shall be a resident of the county of  Erie,  from  a  recommendation submitted  by  the  speaker of the assembly. The county executive of the county of Erie shall make seven  appointments  to  the  board  with  the advice and consent of the legislature of the county of Erie.   The  terms of the initial directors appointed by the governor shall be five years for such  directors  appointed  upon  recommendation  of  the temporary  president  of the senate and the speaker of the assembly. The terms of the initial  directors  appointed  by  the  governor  upon  the recommendation  of  the  county executive of the county of Erie shall be five years for one, four years for one, and three  years  for  one.  The terms  of  the  initial  directors  appointed  by  the governor upon the recommendation of the legislature of the county of Erie  shall  be  four years  for  two  and  three  years  for  one.  The  terms of the initial directors appointed by the county executive of the county of Erie  shall be  one  year  for  two  of  such directors, two years for three of such directors, and three years for two of such directors.  (c) Each director shall  possess  a  high  degree  of  experience  and knowledge  in  relevant  fields  and  a  high  degree of interest in the corporation. The appointment of any director to the corporation shall be based in part on the objective of ensuring that the corporation includes diverse and beneficial perspectives and experience, including,  but  not limited to, those of business management, law, finance, medical or other health  professionals  or  both,  health  sector workers, the patient or consumer perspective, and residence in the western New York community.   2. There shall be four non-voting representatives, who  shall  include the  chief  executive officer of the corporation appointed by the voting directors of the board, one selected by the Erie county  executive,  one selected  by the majority leader of the Erie county legislature, and one member selected by the minority leader of the Erie  county  legislature. Such  representatives  shall  have  all  of the rights and powers of the directors other than the right and power to  vote,  including,  but  not limited to, the right to equal access to information.   3. All directors and non-voting representatives shall continue to hold office  until their successors are appointed and qualify. All subsequent appointments made upon the expiration of an initial term shall be for  a term   of   five  years,  and  all  appointees  shall  be  eligible  for reappointment. Vacancies occurring otherwise than by expiration of  term of office shall be filled for the unexpired terms in the manner provided for  original  appointment.  Members  of  the  board may be removed from office by the board for inefficiency, neglect of duty, or misconduct  in office  after  the  board  has  given  such member a copy of the charges against him or her and an opportunity  to  be  heard  in  person  or  by counsel in his or her defense, upon not less than ten days notice.   4.  (a)  The  directors  shall,  by  majority  vote, select one of the fifteen directors as the chairperson of the board. The chairperson shall  preside over all meetings of the board and shall have such other  duties as the directors may provide.  (b)  The  voting  directors  and  non-voting  representatives  of  the corporation shall receive no compensation for their services, but  shall be  reimbursed  for  all their actual and necessary expenses incurred in connection with carrying out the purposes of this title.  (c) The powers of the corporation shall be  vested  in  and  shall  be exercised by the board at a meeting duly called and held, where a quorum of  eight  directors  is  present.  No  action  shall  be  taken  by the corporation except pursuant to the favorable  vote  of  at  least  eight directors present at the meeting at which such action is taken.  (d)  The members of the board or any committee thereof may participate in a meeting of such  board  or  committee  by  means  of  a  conference telephone  or  similar  communications  equipment  allowing  all persons participating in the meeting to  hear  each  other  at  the  same  time; participation  by  such  means  shall constitute presence in person at a meeting.  (e) Any action required or permitted to be taken by the board  or  any committee  thereof  may be taken without a meeting if all members of the board or  the  committee  consent  in  writing  to  the  adoption  of  a resolution  authorizing  the  action.  The  resolution  and  the written consents thereto by the members of the board or committee shall be filed with the minutes of the proceedings of the board or committee.   5. The voting directors shall select and shall  determine  the  salary and  benefits  of  the  chief  executive officer of the corporation. The directors shall have the authority  to  discharge  the  chief  executive officer  with  or without cause; provided, however, that removal without cause shall not prejudice the contract rights,  if  any,  of  the  chief executive officer.   6. Notwithstanding any inconsistent provision of any general, special, or  local law, ordinance, resolution, or charter, no officer, member, or employee of the state or of any public corporation shall forfeit his  or her  office  or  employment  by  reason  of  his  or  her  acceptance of appointment  as  a  director,  non-voting  representative,  officer,  or employee  of  the  corporation,  nor  shall  service as such a director, non-voting representative, officer, or employee be  deemed  incompatible or  in  conflict  with  such office or employment; and provided further, however, that no public officer elected to his or her office pursuant to the laws of the state or any municipality thereof may serve as a  member of  the  governing  body  of  the  corporation during his or her term of office.   7. The corporation shall have a chief executive officer, a  secretary, a  treasurer,  and  such  other officers as the board shall from time to time provide; such officers shall exercise the duties  provided  by  the board or by this title.   8.  The  corporation  and its corporate existence shall continue until terminated by law; provided, however, that  no  such  termination  shall take  effect  so  long  as  the  corporation  shall  have bonds or other obligations outstanding, unless adequate provision has been made for the payment or satisfaction thereof. Upon termination of  the  existence  of the  corporation,  all  of  the rights and properties of the corporation then remaining shall pass to and vest in the county in such manner as is or may be prescribed by law.   9. Contracts for  works,  construction,  or  purchases  to  which  the corporation  is  a  party  shall be subject to the provisions of article five-A of the general municipal law, except as provided in  subdivisions ten and eleven of this section. In addition to the procedures prescribed under  section  one  hundred  four  of the general municipal law for the  utilization of the terms of state contracts, the corporation may utilize the terms of a federal government general services  contract  where  the terms  are  to the advantage of the corporation and have been offered to the  corporation by the contractor. When bids have already been received by the corporation, no  purchase  under  a  federal  government  general services  contract  shall  be made, unless the purchase may be made upon the same terms, conditions, and specifications at a lower price  through such contractor.   10. It is the intent of the legislature that overall cost shall in all cases  be  a  major criterion in the selection of project developers for award  of  contracts  pursuant  to  this  section  and  that,   whenever practical,  such  contracts  shall  be  entered into through competitive bidding procedures, as prescribed by sections one hundred  one  and  one hundred  three of the general municipal law. It is further the intent of the legislature to acknowledge the highly complex and innovative  nature of medical technology and diagnostic and treatment devices, the relative newness   of  a  variety  of  devices,  processes,  and  procedures  now available, the desirability of a single point of responsibility for  the development  of  medical  treatment  and  diagnostic facilities, and the economic and technical utility of contracts for medical  projects  which include  in  their  scope  various combinations of design, construction, operation, management, or maintenance responsibility, or any combination thereof, over prolonged periods of time, and  to  acknowledge  that,  in some  instances,  it  may  be  beneficial  to the corporation to award a contract for a medical project on the basis of factors other  than  cost alone,   including,   but   not  limited  to,  facility  design,  system reliability, efficiency, safety, and compatibility with  other  elements of  patient care. Accordingly, and notwithstanding the provisions of any general, special, or local law or charter,  a  contract  for  a  medical project  entered  into between the corporation and any project developer pursuant to this section may be awarded pursuant to  public  bidding  in compliance  with  sections  one hundred one and one hundred three of the general municipal law or pursuant to the following  provisions  for  the award  of  a  contract  based on an evaluation of proposals submitted in response to a request for proposals prepared by or for the corporation:  (a) The corporation shall require that each proposal to  be  submitted by a project developer include:  (i)  information  relating  to  the  experience  and  expertise of the project developer on the basis of which said project developer  purports to  be  qualified to carry out all work required by a proposed contract; the ability of the project developer to secure adequate  financing;  and proposals  for  project  staffing, implementation of work tasks, and the carrying out of all responsibilities required by a proposed contract;  (ii) a proposal clearly identifying and  specifying  all  elements  of costs  which  would become charges to the corporation, in whatever form, in return for the fulfillment by the  project  developer  for  the  full lifetime  of  a  proposed  contract,  including, as appropriate, but not limited to, the  cost  of  planning,  design,  construction,  operation, management, or maintenance, or any combination thereof, of any facility, and  clearly  identifying  and  specifying all elements of revenue which would accrue to the corporation from the operation of  the  facility  or device  or  from  any  other  source;  provided that the corporation may prescribe the form and content of such proposal and that, in any  event, the  project  developer must submit sufficiently detailed information to permit a fair and  equitable  evaluation  by  the  corporation  of  such proposal;  and  provided,  further, that the corporation may set maximum allowable cost limits in any form in the request for proposals; and  (iii) such other information as the corporation may determine to  have a material bearing on its ability to evaluate any proposal in accordance with this paragraph;  (b)  Prior to the issuance of a request for proposals pursuant to this subdivision, the corporation shall publish notice of such issuance in at least  one  newspaper  of  general  circulation.  Concurrent  with   the publication of such notice, a draft request for proposals shall be filed with the county commissioner of health;  (c) Proposals received in response to such request for proposals shall be  evaluated  by the corporation as to net cost or, if a net revenue is projected, net revenue, and in a manner consistent with  provisions  set forth in the request for proposals, and may be evaluated on the basis of additional  factors,  including,  but  not  limited  to,  the  technical evaluation of the medical project, including medical facility,  facility design,   system   reliability,  energy  balance,  and  efficiency.  The evaluation of such proposals and the determination of whether or  not  a project developer is "responsible" may include, but shall not be limited to,  consideration,  in a manner consistent with provisions set forth in the request for proposals, of the record of  the  project  developer  in complying  with  existing  labor  standards  and  recognizing  state and federally approved apprentice training programs and consideration of the willingness  of  the  project  developer  to  provide   for   meaningful participation  of minority group persons and business enterprises in the conduct of the work; and  (d) The corporation may make  a  contract  award  to  any  responsible project  developer  based on a determination by the corporation that the selected proposal is most responsive to the request  for  proposals  and may  negotiate  with  any project developer; provided, however, that, if any award is made to any project developer whose total proposal does not provide either the lowest net cost, or, if a net revenue  is  projected, the  greatest  net  revenue,  of  any proposal received, the corporation shall adopt a resolution which includes particularized findings relevant to factors pursuant to paragraph (c) of this subdivision indicating that the corporation's requirements are met by award and that such action  is in the public interest.   Whenever  the  corporation  enters  into  a  contract pursuant to this section  for  a  medical  project  which  involves   construction,   the provisions  of  section  two  hundred  twenty  of the labor law shall be applicable to such construction work.   11.  Every contract entered into between the corporation and a project developer, pursuant to the provisions of paragraph  (d)  of  subdivision ten  of  this section, for a medical project involving construction of a medical building by the project developer, shall contain provisions that such  building  shall  be  constructed  through  construction  contracts awarded  through  competitive  bidding in accordance with paragraphs (a) through (g) of this subdivision;  that  the  project  developer  or  the project  developer's  construction  subcontractor  shall  furnish a bond guaranteeing prompt payment of  moneys  that  are  due  to  all  persons furnishing  labor  and  materials  pursuant  to the requirements of such construction contracts, and that a copy of such payment  bond  shall  be kept  by  the  corporation  and  shall  be  open  to  public inspection; provided, however, that the requirements of this subdivision  shall  not apply  when  the  cost  of  such  construction, exclusive of the cost of medical equipment, apparatus, and devices, is  less  than  five  hundred thousand dollars.  (a)   The   project  developer  shall  advertise  for  bids  for  such construction contracts in a daily newspaper having  general  circulation in the county.  Such advertisement shall contain a statement of the time  and  place  where  all  bids  received  pursuant  to such notice will be publicly opened and read.  An  employee  of  the  corporation  shall  be designated  to  open  the  bids  at  the time and place specified in the notice.  All bids received shall be publicly opened and read at the time and place so specified. At least five  days  shall  elapse  between  the publication  of  such  advertisement  and the date on which the bids are opened.  (b) Except as otherwise provided in section two hundred twenty-two  of the  labor  law,  when  the  entire  cost of constructing such building, exclusive of any medical equipment, apparatus, or devices, exceeds  five hundred  thousand  dollars, the project developer shall prepare separate specifications for the following subdivisions of such  work,  so  as  to permit separate and independent bidding upon each subdivision:  (i) plumbing and gas fittings;  (ii)   steam   heating,   hot  water  heating,  ventilating,  and  air conditioning apparatus; and  (iii) electric wiring and standard illuminating fixtures.  (c) After public competitive  bidding,  the  project  developer  shall award  one or more separate contracts for each of the above subdivisions of such work, whenever separate specifications are required pursuant  to paragraph  (b)  of  this  subdivision, and one or more contracts for the remainder of such work. The project developer may award  such  contracts at different times. Contracts awarded pursuant to this subdivision shall be  awarded  by  the  project  developer  to  the lowest responsible and responsive bidder and shall be contracts of the  project  developer  and not  of  the corporation, which shall have no obligation or liabilities, whatsoever,  thereunder.  The   project   developer   shall   have   the responsibility  for  the  supervision,  coordination, and termination of such contracts, unless otherwise specified in contractual terms  between the project developer and the corporation.  (c-1)  Each bidder on a public work contract, where the preparation of separate specifications is not required, shall submit  with  its  bid  a separate  sealed list that names each subcontractor that the bidder will use to perform work on the contract, and the agreed-upon  amount  to  be paid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot water  heating,  ventilating  and  air  conditioning apparatus and (iii) electric wiring and standard illuminating fixtures. After the low bid is announced, the sealed list of subcontractors submitted with such low bid shall be opened and the names of such subcontractors shall be announced, and thereafter any change of subcontractor or agreed-upon amount  to  be paid  to  each  shall  require  the approval of the public owner, upon a showing presented to the public owner of  legitimate  construction  need for  such  change,  which shall be open to public inspection. Legitimate construction need shall include, but not be  limited  to,  a  change  in project  specifications,  a  change  in  construction  material costs, a change to subcontractor status as determined pursuant to  paragraph  (e) of  subdivision  two of section two hundred twenty-two of the labor law, or  the  subcontractor  has  become  otherwise  unwilling,   unable   or unavailable   to   perform   the   subcontract.   The  sealed  lists  of subcontractors submitted by all other bidders shall be returned to  them unopened after the contract award.  (d)  In  determining  whether  or  not  a  prospective  contractor  is responsible and responsive,  the  project  developer  may  require  that prospective contractors:  (i)  have  adequate  financial resources or the ability to obtain such resources;  (ii) be able to comply with  the  required  or  proposed  delivery  or performance schedule;  (iii) have a satisfactory record of performance;  (iv)   have   the   necessary  organization,  experience,  operational controls, and technical skills, or the ability to obtain them;  (v)  have  the  necessary  production,  construction,  and   technical equipment and facilities, or the ability to obtain them; and  (vi)  be  eligible  to  receive  an  award  under  applicable laws and regulations and be otherwise qualified.  (e) The project developer may reject  any  bid  of  a  bidder  if  the project developer determines the bidder to be non-responsible or the bid non-responsive to the advertisement for bids.  (f) The project developer may, in its discretion, reject all bids, may revise  bid specifications, and may re-advertise for bids as provided in this subdivision for original advertisements.  (g) Only as used in this section:  (i) "project developer" means any  private  corporation,  partnership, limited  liability  company, or individual, or combination thereof which has submitted a proposal in response to a request for proposals;  (ii)  "construction"  includes  reconstruction,   rehabilitation,   or improvement,  exclusive  of the installation and assembly of any medical equipment, apparatus, or device;  (iii) "medical building" means that component  of  a  medical  project constituting  appurtenant structures or facilities necessary to house or render the remaining components  of  the  medical  project  operational. Medical   building  does  not  include  apparatus,  equipment,  devices, systems, supplies, or any combination thereof; and  (iv)  "medical  project"  means  any  substantial  durable  apparatus, equipment,  device,  or  system,  or  any  combination of the foregoing, including  services  necessary  to  install,  erect,  or  assemble   the foregoing,  and  any  appurtenant  structures or facilities necessary to house or render the foregoing operational, to be used for the purpose of care, treatment, or diagnosis of disease or injury or the relief of pain and suffering of sick  or  injured  persons.  Medical  projects  do  not include  ordinary  supplies  and  equipment  expended or utilized in the customary care and treatment of patients.   12. (a) For purposes of applying section eighty-seven  of  the  public officers  law to the corporation, the term "trade secrets" shall include marketing strategy or strategic marketing plans, analyses,  evaluations, and  pricing  strategies  or  pricing  commitments  of  the  corporation relating to business  development,  including  strategic  alliances  and contracts  for  managed  care and other network arrangements, capitation contracts,  and  other  similar  arrangements   relating   to   business development   which,  if  disclosed,  would  be  likely  to  injure  the competitive position of the corporation.  (b) In addition to the matters listed in section one hundred  five  of the  public  officers  law,  the  corporation  may  conduct an executive session for the purpose of considering marketing strategy  or  strategic marketing  plans,  analyses,  evaluations,  and  pricing  strategies  or pricing commitments of the corporation relating to business development, including strategic alliances and contracts for managed care  and  other network   arrangements,   capitation   contracts,   and   other  similar arrangements relating to business development which, if disclosed, would be likely to injure the competitive position of the corporation.   13. The county shall provide the corporation with full funding of  the network's  existing capital program for the years two thousand four, two thousand five, and two thousand six, as authorized in the  county's  two thousand three capital budget.