N.Y. Public Health Law § 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, in accordance with applicable law,

including, but not limited to:

(i) a patient complaint and quality of care review process;

(ii) a right to receive all information necessary to give informed

consent for any proposed intervention, procedure, or treatment,

including information regarding the foreseeable and clinically

significant risks and benefits of the proposed intervention, procedure,

or treatment;

(iii) a right to receive complete information regarding the patient's

condition, prognosis, and clinical indications for the proposed

intervention, procedure, or treatment;

(iv) a right to receive information regarding alternative treatment

options including the foreseeable and clinically significant risks and

benefits of such alternative treatment options, taking into

consideration any known preconditions;

(v) a right to be informed of the name, position, and functions of any

persons, including medical students and physicians exempt from New York

state licensure pursuant to section sixty-five hundred twenty-six of the

education law, who provide face-to-face care to or direct observation of

the patient;

(vi) a right to refuse the proposed intervention, procedure, or

treatment and to be informed of the clinical effects of such refusal;

(vii) a right to meaningfully engage and participate in the informed

consent process, which shall mean, but not be limited to, affording the

patient or their representative time to ask questions and have them

answered satisfactorily to the extent reasonable;

(viii) a right to be informed of any human subjects research that the

attending physician taking care of the patient participates in and may

directly affect a procedure or treatment to be received by the patient,

and to provide voluntary written informed consent to participate, should

the patient be an appropriate candidate for such human subjects research

in the clinical judgment of the attending physician. The informed

consent referred to here shall conform with federal requirements

regarding protection for human research subjects, and any other

applicable laws or regulations;

(ix) a right to an appropriate patient discharge plan; and

(x) 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 (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 (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 (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 (j)'s

(k) 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 choose to submit

surprise bills or bills for emergency services to the independent

dispute process established in article six of the financial services

law, and informing the patient of his or her right to view a list of the

hospital's standard charges and the health plans the hospital

participates with consistent with section twenty-four of this chapter.

(l) 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 choose to

identify a caregiver pursuant to article twenty-nine-cccc of this

chapter.

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.

* 11. (a) The commissioner shall make regulations relating to

midwifery birth centers, including relating to establishment,

construction, and operation, considering the standards of state and

national professional associations of midwifery birth centers, in

consultation with representatives of midwives, midwifery birth centers,

and general hospitals providing obstetric services.

(b) (i) As used in this subdivision, "accrediting organization" means

a national accrediting organization that provides accreditation to

midwifery birth centers, recognized by the commissioner in consultation

with representatives of midwives, midwifery birth centers, and general

hospitals providing obstetric services. The commissioner shall not

unreasonably withhold recognition of an organization seeking to be

recognized under this paragraph.

(ii) Where a proposed midwifery birth center demonstrates the intent

and capability to obtain and maintain accreditation by an accrediting

organization, and fully completes and files an application with the

public health and health planning council on forms provided by the

department, it shall be deemed upon approval of the public health and

health planning council to meet the requirements of this article for a

midwifery birth center for approval of a certificate of incorporation,

articles of organization and establishment, contingent on obtaining and

maintaining that accreditation. Notwithstanding any other provision of

this article to the contrary, such application to the public health and

health planning council shall include information to: (A) satisfy the

character and competence criteria found in subdivision three of section

twenty-eight hundred one-a of this article; (B) demonstrate that the

legal structure of the proposed operator of the midwifery birth center

complies with the requirements for establishment of hospitals under

section twenty-eight hundred one-a of this article; (C) evidence the

capability to fund any acquisition, renovations, and construction costs;

and (D) demonstrate that the premises and equipment comply with required

life safety and building standards necessary to protect the life, safety

and welfare of patients and staff. Upon receipt of a completed

application, the department shall schedule such application for

consideration at the next available and appropriate committee meeting by

the public health and health planning council. If the department

receives an incomplete application, the department shall communicate

with the applicant until such time as the application is completed and

filed with the public health and health planning council for its

approval or disapproval, or the applicant withdraws the application.

(iii) Regulations and requirements of the commissioner under paragraph

(a) of this subdivision for approval of a certificate of incorporation,

articles of organization, establishment, and operation of a midwifery

birth center established or seeking to be established under this

article, including a determination of public need and compliance with

operational and physical plant standards, shall not be inconsistent

with: (A) article one hundred forty of the education law; (B) the

standards of the accrediting organization from which the midwifery birth

center proposes to seek, seeks or has obtained accreditation; (C) life

safety code or other building standards the commissioner deems necessary

to protect the life, safety and welfare of patients and staff; and (D)

subparagraph (ii) of this paragraph. Regulations, requirements and

guidance under this subparagraph shall be made by the commissioner after

consultation with representatives of midwives, midwifery birth centers,

and general hospitals providing obstetric services. To the extent any of

the standards in this subparagraph conflict, the commissioner shall

accommodate or modify the application of any standard to harmonize and

maximize the intent of the standards.

* NB There are 2 sb 11's

* 11. Notwithstanding any provision of this article, or any rule or

regulation under this article to the contrary, the commissioner shall

allow outpatient clinics of general hospitals and diagnostic and

treatment centers to provide off-site primary care services that are:

(a) primary care services ordinarily provided to patients on-site at

the outpatient clinic or diagnostic and treatment center and are not

home care services defined in subdivision one of section thirty-six

hundred two of this chapter or the professional services enumerated in

subdivision two of such section;

(b) provided by a primary care professional to a patient with a

pre-existing clinical relationship with the outpatient clinic or

diagnosis and treatment center, or with the health care professional

providing the service; and

(c) provided to a patient who is unable to leave his or her residence

to receive services at the outpatient clinic or diagnostic and treatment

center without unreasonable difficulty due to circumstances, including

but not limited to, clinical impairment.

Nothing in this subdivision shall preclude a federally qualified

health center from providing off-site services in accordance with

department regulations.

* NB There are 2 sb 11's

12. (a) Each residential health care facility shall, no later than

ninety days after the effective date of this subdivision and annually

thereafter, or more frequently as may be directed by the commissioner,

prepare and make available to the public on the facility's website, and

immediately upon request, in a form acceptable to the commissioner, a

pandemic emergency plan which shall include but not be limited to:

(i) a communication plan:

(A) to update authorized family members and resident representatives

of infected residents at least once per day and upon a change in a

resident's condition and at least once a week to update all residents

and authorized families and resident representatives on the number of

infections and deaths at the facility, and to update all residents,

authorized family members, and resident representatives at the facility

not later than five o'clock p.m. the next calendar day following the

detection of a confirmed infection of a resident or staff member, or at

such earlier time as guidance from the federal centers for Medicaid and

medicare services or centers for disease control and prevention may

provide, by electronic or such other means as may be selected by each

resident, authorized family member or resident representative; and

(B) that includes a method to provide all residents with daily access,

at no cost, to remote videoconference or equivalent communication

methods with family members and guardians; and

(C) that includes a method, consistent with any guidance and

regulations issued by the commissioner, to provide all residents with

access, at no cost, to state long-term care ombudsman program staff and

volunteers, and that provides state long-term care ombudsman program

staff and volunteers with access to the facility; and

(ii) protection plans against infection for staff, residents and

families, including:

(A) a plan for hospitalized residents to be readmitted to such

residential health care facility after treatment, in accordance with all

applicable laws and regulations; and

(B) a plan for such residential health care facility to maintain or

contract to have at least a two-month supply of personal protective

equipment; and

(C) a plan or procedure, consistent with any guidance issued by the

federal centers for Medicaid and medicare services or centers for

disease control and prevention, for placement or grouping of residents

within a facility to reduce transmission of the pandemic disease during

an infectious disease outbreak in the residential health care facility;

and

(iii) a plan for preserving a resident's place in a residential health

care facility if such resident is hospitalized, in accordance with all

applicable laws and regulations.

(b) The residential health care facility shall prepare and comply with

the pandemic emergency plan. Failure to do so shall be a violation of

this subdivision and may be subject to civil penalties pursuant to

section twelve and twelve-b of this chapter. The commissioner shall

review each residential health care facility for compliance with its

plan and the applicable regulations in accordance with paragraphs (a)

and (b) of subdivision one of this section.

(c) Within thirty days after the residential health care facility's

receipt of written notice of noncompliance such residential health care

facility 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 ensure each such

residential health care facility complies with its plan of correction

and the applicable regulations.

(d) The commissioner shall promulgate any rules and regulations

necessary to implement the provisions of this subdivision.

13. The commissioner shall require each residential health care

facility to provide residents and their families with a separate

document, as part of an intake application, in no less than twelve-point

font, that includes information on how a potential resident and their

family members can look up complaints, citations, inspections,

enforcement actions, and penalties taken against the facility including

the web address for the New York state nursing home profiles website

that is maintained by the department and the nursing home compare

website maintained by the United States department of health and human

services, if applicable.

14. (a) The commissioner, in consultation with the state long-term

care ombudsman, shall establish policies and procedures for: (i)

reporting to the department, by staff and volunteers of the long-term

care ombudsman program, on issues identified or witnessed by such staff

and volunteers that relate to actions, inactions or decisions that may

adversely affect the health, safety and welfare of residents at

residential health care facilities licensed or certified by the

department in this state. Such policies and procedures shall include,

but not be limited to, establishing a telephone hotline number and

reporting form on the department's website for use by long-term care

ombudsman program staff and volunteers for the submission of reports;

(ii) timely and regular resolution to any such issues reported to the

department pursuant to subparagraph (i) of this paragraph. No later than

sixty days after the receipt of any such issue, the department shall

provide the state long-term care ombudsman a report on the status of

such issue. Following the initial report, the department shall provide

additional reports to the state long-term care ombudsman no less than

every ninety days thereafter until such issue is resolved. Upon

resolution of such issue, the department shall provide a timely report

to the state long-term care ombudsman indicating the manner in which the

issue was resolved; and

(iii) requiring the department to notify the local ombudsman entity as

defined in paragraph (c) of subdivision one of section two hundred

eighteen of the elder law after the department conducts a

recertification survey of a facility.

(b) Nothing in this subdivision shall be construed to limit in any way

a resident's right to privacy and confidentiality pursuant to the

regulations of the long-term care ombudsman program or the right to

refuse to consent to the involvement of the long-term care ombudsman.

(c) As used in this subdivision: (i) "resolution" shall mean closure

of a complaint by the department, whether closed as substantiated or

unsubstantiated; and (ii) "status" shall mean whether the complaint has

been assigned to department staff for investigation, whether the

complaint remains open under active investigation, or whether the

complaint has reached resolution.