New York Codes, Rules and Regulations › Title 10 - DEPARTMENT OF HEALTH › Chapter V - Medical Facilities › Subchapter B - Hospital Establishment › Part 600 - General Provisions › Section 600.2 - Requirements for approval

Current through Register Vol. 46, No. 28, July 10, 2024
(a) The
				  application must be complete and in proper form. It shall provide all the
				  information essential for the Public Health Council's consideration.
(b) The applicant must satisfactorily
				  demonstrate to the council:
(1) that there is
				  a public need for the facility or the proposed new facility;
(2)
(i) If a
				  nonprofit corporation, that the members of the board of directors and the
				  officers of the corporation are of such character, experience, competence and
				  standing as to give reasonable assurance of their ability to conduct the
				  affairs of the corporation in its best interests and in the public interest and
				  so as to provide proper care for the patients or residents to be served by the
				  facility or the proposed facility;
(ii) if a proprietary business, that the
				  owner, or all the partners, if a partnership, are persons of good moral
				  character with the experience, competence and standing as to give reasonable
				  assurance of their ability to operate the business so as to provide proper care
				  for the patients or residents to be served by the facility or the proposed
				  facility;
(iii) if a business
				  corporation, that the members of the board of directors, the officers and the
				  stockholders of the corporation are of such character, experience, competence
				  and standing as to give reasonable assurance of their ability to conduct the
				  affairs of the corporation so as to provide proper care for the patients or
				  residents to be served by the facility or the proposed facility;
(iv) if a limited liability company, that the
				  members, managers, and officers of the company, are of such character,
				  experience, competence and standing as to give reasonable assurance of their
				  ability to conduct the affairs of the company so as to provide proper care for
				  the patients or residents to be served by the facility or the proposed
				  facility;
(3) that there
				  are adequate finances to properly establish and conduct the proposed
				  facility;
(4) that, with respect to
				  an applicant who is already or within the past 10 years, been an incorporator,
				  director, sponsor, stockholder, member, controlling person, principal
				  stockholder, principal member, or operator of any facility as specified in
				  paragraph (b) of subdivision (3) of section
				  2801-a of
				  the Public Health Law, a substantially consistent high level of care has been
				  rendered in each such facility the applicant is or has been affiliated.
(i) In reaching this determination, the
				  Public Health and Health Planning Council shall consider findings of facility
				  inspections, including but not limited to the title XVIII and XIX (of the
				  Social Security Act) and article 28 survey findings, as such pertain to
				  violations of this Chapter and routine and patient abuse complaint
				  investigation results; and other available information.
(ii) The Public Health and Health Planning
				  Council's determination that a substantially consistent high level of care has
				  been rendered shall be made after evaluating the aforementioned information,
				  with the following criteria: the gravity of any violation, the manner in which
				  the applicant/operator exercised supervisory responsibility over the facility
				  operation, and the remedial action, if any, taken after the violation was
				  discovered.
(a) In evaluating the gravity of
				  the violation, the Public Health and Health Planning Council shall consider
				  whether the violation threatened, or resulted in direct, significant harm to
				  the health, safety or welfare of patients/residents.
(b) In evaluating the manner in which the
				  applicant/operator exercised supervisory responsibility over the facility
				  operation, the Public Health and Health Planning Council shall consider whether
				  a reasonably prudent individual of the applicant/operator should have been
				  aware of the conditions which resulted in the violation and was notified about
				  the conditions which resulted in the violation and whether the individual of
				  the applicant/operator was notified about the condition(s) which resulted in
				  the violation.
(c) In evaluating any
				  remedial action taken, the Public Health and Health Planning Council shall
				  consider whether the applicant/operator investigated the circumstances
				  surrounding the violation, and took steps which a reasonably prudent
				  applicant/operator would take to prevent the reoccurrence of the
				  violation.
(iii) When
				  violations were found which either threatened to directly affect
				  patient/resident health, safety or welfare, or resulted in direct, significant
				  harm to the health, safety or welfare of patients/residents, there shall not be
				  a determination of a substantially consistent high level of care if the
				  violations were recurrent or were not promptly corrected.
(a) A violation is recurrent if it has the
				  same root cause as a violation previously cited within the last ten (10)
				  years.
(b) A violation is not
				  promptly corrected if a plan of correction has not been submitted to the
				  Department within ten (10) calendar days of the issuance of the statement of
				  deficiencies, Form CMS-2567 and the facility has failed to provide an
				  acceptable date of compliance based on the violation(s) requiring
				  correction.
(5)
				  that, with respect to an application to incorporate or establish a nursing
				  home, an applicant who is already or within the past 7 years, been an
				  incorporator, director, sponsor, stockholder, or member, has held a controlling
				  interest or has been a controlling person, principal stockholder or principal
				  member, or operator of a nursing home as specified in paragraph (b) of
				  subdivision (3-b) of section
				  2801-a of
				  the Public Health Law, has demonstrated satisfactory character, competence and
				  standing in the community and a consistently high level of care has been
				  rendered in each such nursing home that the applicant is or has been
				  affiliated.
(i) In reaching this
				  determination, the Public Health and Health Planning Council shall consider, at
				  a minimum, the following:
(a) findings of
				  facility inspections, including but not limited to the title XVIII and XIX (of
				  the Social Security Act) and article 28 survey findings, as such pertain to
				  violations of this Chapter and routine and patient abuse complaint
				  investigation results;
(b) any
				  instance of a facility affiliated with the applicant/operator earning a
				  two-star rating or less by the federal centers for Medicare and Medicaid
				  Services (CMS) (or a comparable rating under a successor CMS rating system);
				  provided that a further consideration and mitigating factor in determining
				  whether such star rating reflects a consistently high level of care is where an
				  applicant's ownership interest in the star rated facility commenced within the
				  prior five years;
(c) any instance
				  where there have been violations of the state or federal nursing home code, or
				  other applicable rules and regulations, that threatened to directly affect the
				  health, safety or welfare of any patient or resident, including but not limited
				  to a finding of immediate jeopardy, or actual harm, and were recurrent or were
				  not promptly corrected, including but not limited to repeat deficiencies for
				  the same or similar violations over a three year period or during the entire
				  duration of ownership if less than three years, or any facility which has been
				  in receivership;
(d) any instance
				  where a facility has closed or has closed as a result of a settlement agreement
				  from a decertification action or licensure revocation.
(e) any instance where a health care related
				  facility, agency, or program was the subject of a decertification action or
				  licensure revocation;
(f) any
				  involuntary termination from the Medicare or Medicaid program; and
(g) any instance of a nursing home being
				  designated a Special Focus Facility or Special Focus Facility Candidate.
The applicant shall be provided with the opportunity to
					 submit an explanation and other supporting documentation regarding any of the
					 aforementioned occurrences which shall be considered by the Public Health and
					 Health Planning Council prior to reaching a determination.
(ii) The Public Health and Health
				  Planning Council's determination that a consistently high level of care has
				  been rendered shall be made after evaluating the aforementioned information,
				  with the following criteria:
(i) the gravity
				  of any violation, the manner in which the applicant/operator exercised
				  supervisory responsibility over the facility operation, and the remedial
				  action, if any, taken after the violation was discovered and
(ii) the percentage of nursing homes in a
				  portfolio with a two-star or less rating.
(a)
				  In evaluating the gravity of the violation, the Public Health and Health
				  Planning Council shall consider whether the violation threatened, or resulted
				  in direct, significant harm to the health, safety or welfare of
				  patients/residents.
(b) In
				  evaluating the manner in which the applicant/operator exercised supervisory
				  responsibility over the facility operation, the Public Health and Health
				  Planning Council shall consider whether a reasonably prudent individual of the
				  applicant/operator should have been aware of the conditions which resulted in
				  the violation and whether the individual of the applicant/operator was notified
				  about the condition(s) which resulted in the violation.
(c) In evaluating any remedial action taken,
				  the Public Health and Health Planning Council shall consider whether the
				  applicant/operator investigated the circumstances surrounding the violation,
				  and took steps which a reasonably prudent applicant/operator would take to
				  prevent the reoccurrence of the violation.
(d) In evaluating instances of a facility
				  affiliated with the applicant/operator earning a two-star or less rating, the
				  Public Health and Health Planning Council shall determine the percentage of
				  nursing homes in the portfolio, that each individual of the applicant/operator
				  has held an ownership interest for forty-eight (48) months or more and has
				  earned a CMS star rating of two-stars or less.
(iii) When any of the following has occurred
				  in the prior five years, there shall not be a determination of a consistently
				  high level of care:
(a) Closure of a facility
				  or a facility has closed as a result of a settlement agreement from a
				  decertification action or licensure revocation.
(b) A health care related facility, agency,
				  or program was the subject of a decertification action or licensure
				  revocation.
(c) Involuntary
				  termination of a health care related facility, agency, or program from the
				  Medicare or Medicaid program.
(d)
				  Violations found, which either threatened to directly affect patient/resident
				  health, safety or welfare, or resulted in direct, significant harm to the
				  health, safety or welfare of patients/residents, and were recurrent or were not
				  promptly corrected.
(1) A violation is
				  recurrent if it has the same root cause as a violation previously cited within
				  the last seven (7) years.
(2) A
				  violation is not promptly corrected if a plan of correction has not been to
				  submitted to the Department within ten (10) calendar days of the issuance of
				  the statement of deficiencies, Form CMS-2567 and the facility has failed to
				  provide an acceptable date of compliance based on the violation(s) requiring
				  correction.
(iv) When any individual of the
				  applicant/operator has greater than 40% of the nursing homes in their portfolio
				  with a CMS star rating of two stars or less and has held an ownership interest
				  in such nursing home for forty-eight (48) months or more, there shall not be a
				  determination of a consistently high level of care; unless the portfolio
				  contains fewer than five (5) facilities, then the Public Health and Health
				  Planning Council shall make a determination on a case-by-case basis, using the
				  criteria set forth in subparagraph (ii) of this paragraph.