N.Y. Public Health Law § 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.