§ 3402 — Nassau health care corporation

§ 3402. Nassau health care corporation. 1. (a) There is hereby\ncreated a state board to be known as the Nassau health care corporation\nwhich shall be a body corporate and politic constituting a public\nbenefit corporation. All health facilities established, administered,\noperated, and/or overseen by the corporation shall be subject to the\nprovisions of article twenty-eight of the public health law.\n (a-1) Notwithstanding any inconsistent provision of law, on June\nfirst, two thousand twenty-five, the term of each director currently in\noffice, including any vacant directorship, shall be deemed expired, and\nthe respective appointing authorities shall make new appointments in\naccordance with this section. Each director may continue to serve in\nholdover status until their successor is appointed.\n (b) The corporation shall be governed by eleven voting directors, six\nof whom shall be appointed by the governor as provided in paragraph (c)\nof this subdivision, two of whom shall be appointed by the county\nexecutive for initial terms of two years, two of whom shall be appointed\nby the majority leader of the county legislature for initial terms of\nthree years, and one of whom shall be appointed by the minority leader\nof the county legislature for an initial term of three years.\n (c) Of the six directors appointed by the governor, one shall be\nappointed upon the recommendation of the speaker of the assembly and one\nshall be appointed upon the recommendation of the temporary president of\nthe senate. The directors appointed by the county executive, the\nmajority leader of the county legislature, and the minority leader of\nthe county legislature shall be residents of Nassau county. Of the\ndirectors appointed by the governor, four of the directors, including\nthe directors appointed upon the recommendation of the speaker of the\nassembly and the temporary president of the senate, shall be residents\nof Nassau county.\n (d) Of the directors first appointed on or after June first, two\nthousand twenty-five, by the governor, the director appointed upon the\nrecommendation of the temporary president of the senate and the director\nappointed upon the recommendation of the speaker of the assembly shall\nserve for an initial term of two years. The remaining directors first\nappointed on or after June first, two thousand twenty-five by the\ngovernor shall serve for an initial term of four years. Following their\ninitial terms, directors shall serve for a term of five years.\n 2. (a) The governor shall designate one of the eleven voting directors\nas the chairperson of the board. The chairperson shall preside over all\nmeetings of the board and shall have such other duties as the voting\ndirectors may direct.\n (b) The voting directors of the corporation shall receive no\ncompensation for their services, but may be reimbursed for their actual\nreasonable expenses.\n (c) A majority of the voting directors then in office shall constitute\na quorum. No action shall be taken by the board of directors except\npursuant to the favorable vote of a majority of the board at a meeting\nat which a quorum is present.\n 3. There shall be three non-voting directors which shall include the\nchief executive officer of the corporation as appointed by the board of\ndirectors, one director selected by the county executive, and one\nselected by the county legislature.\n 4. The board of directors shall select the chief executive officer\nand, subject to approval of the Nassau county interim finance authority,\nshall determine the salary and benefits of the chief executive officer\nof the corporation. The chief executive officer shall serve at the\npleasure of the board of directors provided, however, that removal\nwithout cause shall not prejudice the contract rights, if any, of the\nchief executive officer.\n 5. Notwithstanding any inconsistent provision of any general, special\nor local law, ordinance, resolution or charter, no officer, member or\nemployee of the state or of any public corporation shall forfeit his or\nher office or employment by reason of his or her acceptance of\nappointment as a voting director, non-voting director, officer or\nemployee of the corporation, nor shall service as such a voting\ndirector, non-voting director, officer or employee be deemed\nincompatible or in conflict with such office, or employment, and\nprovided further, however, that no public officer elected to his or her\noffice pursuant to the laws of the state or any municipality thereof may\nserve as a member of the governing body of the corporation during his or\nher term of office.\n 6. The corporation and its corporate existence shall continue until\nterminated by law, provided, however, that no such termination shall\ntake effect so long as the corporation shall have bonds or other\nobligations outstanding, unless adequate provision has been made for the\npayment or satisfaction thereof. Upon termination of the existence of\nthe corporation, all of the rights and properties of the corporation\nthen remaining shall pass to and vest in the county in such manner as\nprescribed by law.\n 7. Contracts for public works or purchases to which the corporation is\na party shall be subject to the provisions of article five-A of the\ngeneral municipal law except as provided in subdivisions eight and nine\nof this section. In addition to the procedures prescribed under section\none hundred four of the general municipal law for the utilization of the\nterms of state contracts, the corporation may utilize the terms of a\nfederal government general services contract where the terms are to the\nadvantage of the corporation and have been offered to the corporation by\nthe contractor. When bids have already been received by the corporation,\nno purchase under a federal government general services contract shall\nbe made unless the purchase may be made upon the same terms, conditions\nand specifications at a lower price through such contractor.\n 8. It is the intent of the legislature that overall cost should in all\ncases be a major criterion in the selection of project developers for\naward of contracts pursuant to this section and that, wherever\npractical, such contracts should be entered into pursuant to the\nprovisions of sections one hundred one and one hundred three of the\ngeneral municipal law. It is further the intent of the legislature to\nacknowledge the highly complex and innovative nature of medical\ntechnology, diagnostic and treatment devices, the relative newness of a\nvariety of devices, processes and procedures now available, the\ndesirability of a single point of responsibility for the development of\nmedical treatment and diagnostic facilities and the economic and\ntechnical utility of contracts for medical projects which include in\ntheir scope various combinations of design, construction, operation,\nmanagement and/or maintenance responsibility over prolonged periods of\ntime and that in some instances it may be beneficial to the corporation\nto award a contract for a medical project on the basis of factors other\nthan capital cost alone, including but not limited to facility design,\nsystem reliability, efficiency, safety, long-term operating costs and\ncompatibility with other elements of patient care. Accordingly, and\nnotwithstanding the provisions of any general, special or local law or\nchapter, a contract for a medical project entered into between the\ncorporation and any project developer pursuant to this section may be\nawarded pursuant to public bidding in compliance with sections one\nhundred one and one hundred three of the general municipal law or\npursuant to the following provisions for the award of a contract based\non evaluation of proposals submitted in response to a request for\nproposals prepared by or for the corporation:\n (a) The corporation shall require that each proposal to be submitted\nby a project developer shall include:\n (i) information relating to the experience and expertise of the\nproject developer on the basis of which said project developer purports\nto be qualified to carry out all work required by a proposed contract;\nthe ability of the project developer to secure adequate financing; and\nproposals for project staffing, implementation of work tasks, and the\ncarrying out of all responsibilities by a proposed contract;\n (ii) a proposal clearly identifying and specifying all elements of\ncost which would become charges to the corporation, in whatever form, in\nreturn for the fulfillment by the project developer for the full\nlifetime of a proposed contract, including, as appropriate, but not\nlimited to the cost of planning, design, construction, operation,\nmanagement and/or maintenance of any facility, and clearly identifying\nand specifying all elements of revenue which would accrue to the\ncorporation from the operation of the facility or device or from any\nother source; provided, that the corporation may prescribe the form and\ncontent of such proposal and that, in any event, the project developer\nmust submit sufficiently detailed information to permit a fair and\nequitable evaluation by the corporation of such proposal; and provided,\nfurther, that the corporation may set maximum allowable cost limits in\nany form in the request for proposals; and\n (iii) such other information as the corporation may determine to have\na material bearing on its ability to evaluate any proposal in accordance\nwith this subparagraph;\n (b) Prior to the issuance of a request for proposals pursuant to this\nparagraph, the corporation shall publish notice of such issuance in at\nleast one newspaper of general circulation. Concurrent with the\npublication of such notice a draft request for proposals shall be filed\nwith the county commissioner of health.\n (c) Proposals received in response to such request for proposals shall\nbe evaluated by the corporation as to net capital cost or, if a net\nrevenue is projected, net revenue, and in a manner consistent with\nprovisions set forth in the request for proposals, and may be evaluated\non the basis of additional factors, including but not limited to the\ntechnical evaluation of the medical project including medical facility,\nfacility design, system reliability, energy balance, annual operating\ncost and efficiency. The evaluation of such proposals and the\ndetermination of whether a project developer is "responsible" may\ninclude, but shall not be limited to, consideration, in a manner\nconsistent with provisions set forth in the request for proposals, the\nrecord of the project developer in complying with existing labor\nstandards and recognizing state and federally approved apprentice\ntraining programs, and the willingness of the project developer to\nprovide for meaningful participation of minority group persons and\nbusiness enterprises in the conduct of the work;\n (d) The corporation may make a contract award to any responsible\nproject developer selected pursuant to subparagraph (iii) of paragraph\n(a) of this subdivision based on a determination by the corporation that\nthe selected proposal is most responsive to the request for proposals\nand may negotiate with any project developer, provided, however, that if\nany award is made to any project developer whose total proposal does not\nprovide either the lowest net cost, or if a net revenue is projected,\nthe greatest net revenue, of any proposal received, the corporation\nshall adopt a resolution which includes particularized findings relevant\nto factors pursuant to such subparagraph indicating that the\ncorporation's requirements are met by such award and that such action is\nin the public interest.\n Whenever the corporation enters into a contract pursuant to this\nsection for a medical project which involves construction the provisions\nof section two hundred twenty of the labor law shall be applicable to\nsuch construction work.\n 9. Every contract entered into between the corporation and a project\ndeveloper, pursuant to the provisions of paragraph (d) of subdivision\neight of this section, for a medical project involving construction of a\nmedical building by the project developer, shall contain provisions that\nsuch building shall be constructed through construction contracts\nawarded through competitive bidding in accordance with paragraphs (a)\nthrough (g) of this subdivision; that the project developer or the\nproject developer's construction subcontractor shall furnish a bond\nguaranteeing prompt payment of moneys that are due to all persons\nfurnishing labor and materials pursuant to the requirements of such\nconstruction contracts, and that a copy of such payment bond shall be\nkept by the corporation and shall be open to public inspection;\nprovided, however, that the requirements of this subdivision shall not\napply when the cost of such construction, exclusive of the cost of\nmedical equipment and devices, is less than one million five hundred\nthousand dollars.\n (a) The project developer shall advertise for bids for such\nconstruction contracts in a daily newspaper having general circulation\nin the county. Such advertisement shall contain a statement of the time\nand place where all bids received pursuant to such notice will be\npublicly opened and read. An employee of the corporation shall be\ndesignated to open the bids at the time and place specified in the\nnotice. All bids received shall be publicly opened and read at the time\nand place so specified. At least five days shall elapse between the\npublication of such advertisement and date on which the bids are opened.\n (b) Except as otherwise provided in section two hundred twenty-two of\nthe labor law, when the entire cost of constructing such building,\nexclusive of any medical equipment, apparatus or devices, shall exceed\none million five hundred thousand dollars, the project developer shall\nprepare separate specifications for the following subdivisions of such\nwork, so as to permit separate and independent bidding upon each\nsubdivision:\n (i) plumbing and gas fittings;\n (ii) steam heating, hot water heating, ventilating and air\nconditioning apparatus; and\n (iii) electric wiring and standard illuminating fixtures.\n (c) After public competitive bidding, the project developer shall\naward one or more separate contracts for each of the above subdivisions\nof such work, whenever separate specifications are required pursuant to\nparagraph (b) of this subdivision, and one or more contracts for the\nremainder of such work. The project developer may award such contracts\nat different times. Contracts awarded pursuant to this subdivision shall\nbe awarded by the project developer to the lowest responsible and\nresponsive bidder and shall be contracts of the project developer and\nnot of the corporation which shall have no obligation or liabilities,\nwhatsoever, thereunder. The project developer shall have the\nresponsibility for the supervision, coordination, and termination of\nsuch contracts, unless otherwise specified in contractual terms between\nthe project developer and the corporation.\n (c-1) Each bidder on a public work contract, where the preparation of\nseparate specifications is not required, shall submit with its bid a\nseparate sealed list that names each subcontractor that the bidder will\nuse to perform work on the contract, and the agreed-upon amount to be\npaid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot\nwater heating, ventilating and air conditioning apparatus and (iii)\nelectric wiring and standard illuminating fixtures. After the low bid is\nannounced, the sealed list of subcontractors submitted with such low bid\nshall be opened and the names of such subcontractors shall be announced,\nand thereafter any change of subcontractor or agreed-upon amount to be\npaid to each shall require the approval of the public owner, upon a\nshowing presented to the public owner of legitimate construction need\nfor such change, which shall be open to public inspection. Legitimate\nconstruction need shall include, but not be limited to, a change in\nproject specifications, a change in construction material costs, a\nchange to subcontractor status as determined pursuant to paragraph (e)\nof subdivision two of section two hundred twenty-two of the labor law,\nor the subcontractor has become otherwise unwilling, unable or\nunavailable to perform the subcontract. The sealed lists of\nsubcontractors submitted by all other bidders shall be returned to them\nunopened after the contract award.\n (d) In determining whether a prospective contractor is responsible and\nresponsive, the project developer may require that prospective\ncontractors:\n (i) have adequate financial resources or the ability to obtain such\nresources;\n (ii) be able to comply with the required or proposed delivery or\nperformance schedule;\n (iii) have a satisfactory record of performance;\n (iv) have the necessary organization, experience, operational\ncontrols, and technical skills, or the ability to obtain them;\n (v) have the necessary production, construction and technical\nequipment and facilities, or the ability to obtain them; and\n (vi) be eligible to receive an award under applicable laws and\nregulations and be otherwise qualified.\n (e) The project developer may reject any bid of a bidder which the\nproject developer determines to be nonresponsible or nonresponsive to\nthe advertisement for bids.\n (f) The project developer may, in its discretion, reject all bids, and\nmay revise bid specifications and may readvertise for bids as provided\nherein.\n (g) Only as used in this section:\n (i) "project developer" means any private corporation, partnership,\nlimited liability company, or individual, or combination thereof which\nhas submitted a proposal in response to a request for proposals;\n (ii) "construction" shall include reconstruction, rehabilitation or\nimprovement exclusive of the installation and assembly of any medical\nequipment, apparatus or device;\n (iii) "medical building" means that component of a medical project\nconstituting appurtenant structures or facilities necessary to house or\nrender the remaining components of the medical project operational.\nMedical building shall not include apparatus, equipment, devices,\nsystems, supplies or any combination thereof;\n (iv) "medical project" means any substantial durable apparatus,\nequipment, device or system, or any combination of the foregoing,\nincluding services necessary to install, erect, or assemble the\nforegoing and any appurtenant structures or facilities necessary to\nhouse or render the foregoing operational, to be used for the purpose of\ncare, treatment or diagnosis of disease or injury or the relief of pain\nand suffering of sick or injured persons. Medical projects shall not\ninclude ordinary supplies and equipment expended or utilized in the\ncustomary care and treatment of patients.\n 10. (a) For purposes of applying section eighty-seven of the public\nofficers law, to the corporation, the term "trade secrets" shall include\nmarketing strategy or strategic marketing plans, analyses, evaluations\nand pricing strategies or pricing commitments of the corporation,\nrelating to business development, which, if disclosed, would be likely\nto injure the competitive position of the corporation.\n (b) In addition to the matters listed in section one hundred five of\nthe public officers law, the corporation may conduct an executive\nsession for the purpose of considering marketing strategy or strategic\nmarketing plans, analyses, evaluations and pricing strategies of the\ncorporation, relating to business development, which, if disclosed,\nwould be likely to injure the competitive position of the corporation.\n 11. All contracts or obligations entered into by the corporation for\nover one million dollars shall be subject to the approval of the Nassau\ncounty interim finance authority.\n