§ 2803 — Commissioner and council; powers and duties

§ 2803. Commissioner and council; powers and duties. 1. (a) The\ncommissioner shall have the power to inquire into the operation of\nhospitals and to conduct periodic inspections of facilities with respect\nto the fitness and adequacy of the premises, equipment, personnel, rules\nand by-laws, standards of medical care, hospital service, including\nhealth-related service, system of accounts, records, and the adequacy of\nfinancial resources and sources of future revenues. The commissioner or\npersons designated by him shall conduct at least one unannounced\ncomprehensive inspection of each residential health care facility not\nlater than fifteen months after the previous such inspection to\ndetermine the adequacy of care being rendered. Such comprehensive\ninspection shall include, but not be limited to, a survey to determine\ncompliance by the facility with applicable statutes and regulations, and\nobservation of a representative sample of all patients or residents and\ntheir medical records to determine the quality and adequacy of the care\nand treatment provided. Additional visits shall be made to facilities as\nneeded to determine whether violations or deficiencies have been\ncorrected, to investigate any report made pursuant to section\ntwenty-eight hundred three-d of this article or any other complaint, and\nfor any other purpose deemed necessary and appropriate by the\ncommissioner. Any employee of the department who gives or causes to be\ngiven advance notice of such unannounced inspection to any unauthorized\nperson shall, in addition to any other penalty provided by law, be\nsuspended by the commissioner from all duties without pay for at least\nfive days or for such greater period of time as the commissioner shall\ndetermine. Any such suspension shall be made by the commissioner in\naccordance with all other applicable provisions of law.\n (b) The purpose of such inspection shall be to determine compliance by\nresidential health care facilities with statutes, and with regulations\npromulgated under the provisions of those statutes, governing minimum\nstandards of construction, quality and adequacy of care, rights of\npatients, rates of payment and reimbursement. At least one such\ninspection every fifteen months shall include, but shall not be limited\nto, full on-site examination of the medical, nursing care, dietary and\nsocial services records of the facility.\n (c) The commissioner shall establish, in consultation with the state\noffice for the aging, a consumer information system for residential\nhealth care facilities with respect to their compliance with the\nstandards set forth in this section designed to provide accurate and\ncomprehensible information to consumers on the quality of facilities\nwhich shall incorporate a summary of the findings and results of the\ninspections conducted pursuant to the provisions of this section. Such\nsummary of results and findings shall include, but need not be limited\nto, a listing of areas in which items were found at the time of such\ninspections to be not in compliance with such standards and the nature\nof such non-compliance. Each residential health care facility shall be\nissued a summary of the findings of inspections of such facility\nconducted since the issuance of the previous summary of findings, which\nshall be posted conspicuously within such facility, and any other\ninformation relating to the facility available through the consumer\ninformation system. The commissioner shall promulgate rules and\nregulations necessary to implement the provisions of this paragraph. A\nfacility may appeal the accuracy of a summary findings to the\ncommissioner within twenty days after receipt of such summary. The\nresults and findings of any prior inspections, and any penalties thereby\nassessed, which have not been previously appealed and overruled, shall\nnot be subject to review.\n (d) (i) Notwithstanding any inconsistent provision of law, the\ncommissioner or his designee shall determine the necessity and\nappropriateness of care and services provided by hospitals to patients\neligible for medical assistance pursuant to title eleven of article five\nof the social services law and shall further determine whether a general\nhospital has taken an action that results in the admission of patients\nunnecessarily, unnecessary multiple admissions of the same patients,\ninappropriate discharge of patients, inappropriate transfer of patients\nbetween hospitals or between distinct units of a hospital, inappropriate\ndiagnosis-related group coding, or other inappropriate medical or other\npractices with respect to hospitalized inpatients eligible for medical\nassistance pursuant to title eleven of article five of the social\nservices law. In making such determinations the commissioner may utilize\nthe services of department personnel or other authorized\nrepresentatives. The hospitals shall provide such information,\nfacilities and services as may be required by the commissioner to make\nsuch determinations. The commissioner, in implementing this paragraph,\nshall adopt necessary rules and regulations including but not limited to\nthose for determining the necessity or appropriate level of admission,\ncontrolling the length of stay, the provision of surgery and other\nservices, and the methods and procedures for making such determinations.\n (ii) In the event the commissioner or his designee makes a\ndetermination pursuant to this paragraph that a general hospital or\nphysician has taken an inappropriate action resulting in a denial or\nadjustment of payment determined in accordance with section twenty-eight\nhundred seven-c of this article, the general hospital or physician which\nis the subject of such determination shall be entitled to a review\nbefore the commissioner or an appeal agent designated for such purposes\nby the commissioner at which such hospital or physician may challenge\nsuch determination. In order to be entitled to such review, such\nhospital or physician must provide the commissioner or his designee, as\nappropriate, with a written request for such review within thirty days\nof receipt of the written determination. During such review, the\nhospital or physician may present documentation or evidence in support\nof its challenge to the determination, and representatives of the\ncommissioner or his designee may present documentation or evidence in\nsupport of the determination. In the event that the determination is\nsustained, the hospital or physician may seek judicial review of the\ndecision pursuant to article seventy-eight of the civil practice law and\nrules.\n (iii) The commissioner shall certify to the social services officials\nresponsible for making payments for authorized hospital services that\nspecified items of care and services for specified individuals eligible\nfor medical assistance pursuant to title eleven of article five of the\nsocial services law are inappropriate or unnecessary and are not\nauthorized for payment or are authorized for payment at the appropriate\nlevel of care under the medical assistance program and, for general\nhospitals, for rate periods beginning on or after January first,\nnineteen hundred eighty-eight through March thirty-first, nineteen\nhundred ninety-seven, at the appropriate case based rate of payment\ndetermined pursuant to section twenty-eight hundred seven-c of this\narticle.\n (e) Notwithstanding any inconsistent provision of law, the\ncommissioner or his designee shall, not later than July first, nineteen\nhundred seventy-six, determine on an individual patient basis whether\nidentifiable periods of in-patient care in a general hospital are\nrequired beyond the maximum length of stay established pursuant to\nsection three hundred sixty-five-a of the social services law, and\nwhether deferral of surgical procedures specified by such commissioner\nin accordance with paragraph (c) of subdivision five of such section may\njeopardize life or essential function, or cause severe pain. In making\nsuch determinations the commissioner may utilize the services of\ndepartment personnel or other authorized representatives. The hospitals\nshall provide such information, facilities and services as may be\nrequired by the commissioner to make such determinations. The\ncommissioner, in implementing this paragraph, shall adopt necessary\nrules and regulations including but not limited to the methods and\nprocedures for making such determinations and the utilization of any\ndepartment staff or other authorized representatives located at such\nhospital in performing other functions relating to assuring that public\nfunds for medical assistance are utilized exclusively to provide items\nof care and services in amount, duration and scope specifically\nauthorized under the medical assistance program. The commissioner shall\ncertify to the social services officials responsible for making payments\nfor authorized hospital services that specified items of care and\nservices for specified individuals are not authorized for payment under\nthe medical assistance program.\n (f) Notwithstanding any inconsistent provision of law, the\ncommissioner shall establish standards for determining the necessity of\ncare and service for alcoholism and alcohol abuse provided by hospitals.\nIn implementing this paragraph the commissioner, in consultation with\nthe director of the division of alcoholism and alcohol abuse, shall\nadopt necessary rules and regulations including but not limited to those\nfor determining the necessity or appropriate level of admission,\ncontrolling the length of stay, the provision of services and\nestablishing the methods and procedures for making such determinations.\n (g) The commissioner shall require that every general hospital adopt\nand make public an identical statement of the rights and\nresponsibilities of patients, in accordance with applicable law,\nincluding, but not limited to:\n (i) a patient complaint and quality of care review process;\n (ii) a right to receive all information necessary to give informed\nconsent for any proposed intervention, procedure, or treatment,\nincluding information regarding the foreseeable and clinically\nsignificant risks and benefits of the proposed intervention, procedure,\nor treatment;\n (iii) a right to receive complete information regarding the patient's\ncondition, prognosis, and clinical indications for the proposed\nintervention, procedure, or treatment;\n (iv) a right to receive information regarding alternative treatment\noptions including the foreseeable and clinically significant risks and\nbenefits of such alternative treatment options, taking into\nconsideration any known preconditions;\n (v) a right to be informed of the name, position, and functions of any\npersons, including medical students and physicians exempt from New York\nstate licensure pursuant to section sixty-five hundred twenty-six of the\neducation law, who provide face-to-face care to or direct observation of\nthe patient;\n (vi) a right to refuse the proposed intervention, procedure, or\ntreatment and to be informed of the clinical effects of such refusal;\n (vii) a right to meaningfully engage and participate in the informed\nconsent process, which shall mean, but not be limited to, affording the\npatient or their representative time to ask questions and have them\nanswered satisfactorily to the extent reasonable;\n (viii) a right to be informed of any human subjects research that the\nattending physician taking care of the patient participates in and may\ndirectly affect a procedure or treatment to be received by the patient,\nand to provide voluntary written informed consent to participate, should\nthe patient be an appropriate candidate for such human subjects research\nin the clinical judgment of the attending physician. The informed\nconsent referred to here shall conform with federal requirements\nregarding protection for human research subjects, and any other\napplicable laws or regulations;\n (ix) a right to an appropriate patient discharge plan; and\n (x) for patients other than beneficiaries of title XVIII of the\nfederal social security act (medicare), a right to a discharge review in\naccordance with section twenty-eight hundred three-i of this article.\nThe form and content of such statement shall be determined in accordance\nwith rules and regulations adopted by the council and approved by the\ncommissioner. A patient who requires continuing health care services in\naccordance with such patient's discharge plan may not be discharged\nuntil such services are secured or determined by the hospital to be\nreasonably available to the patient. Each general hospital shall give a\ncopy of the statement to each patient, or the appointed personal\nrepresentative of the patient at or prior to the time of admission to\nthe general hospital, as long as the patient or the appointed personal\nrepresentative of the patient receives such notice no earlier than\nfourteen days before admission. Such statement shall also be\nconspicuously posted by the hospital and shall be a part of the\npatient's admission package. Nothing herein contained shall be construed\nto limit any authority vested in the commissioner pursuant to this\narticle related to the operation of hospitals and care and services\nprovided to patients.\n * (h) Every hospital providing treatment to alleged victims of family\noffenses as defined in article eight of the family court act and section\n530.11 of the criminal procedure law shall be responsible for providing\na copy of a notice to victims of family offenses as described in section\neight hundred twelve of the family court act and subdivision six of\nsection 530.11 of the criminal procedure law. The commissioner shall\npromulgate such rules and regulations as may be necessary and proper to\ncarry out effectively the provisions of this paragraph.\n * NB There are 2 (h)'s\n * (h) The statement regarding patient rights and responsibilities\nwhich the commissioner shall approve as provided under paragraph (g) of\nthis subdivision shall include a provision stating that every patient\nshall have the right to authorize those family members and other adults\nwho will be given priority to visit consistent with the patient's\nability to receive visitors.\n * NB There are 2 (h)'s\n (i) The statement regarding patient rights and responsibilities,\nrequired pursuant to paragraph (g) of this subdivision, shall include\nprovisions informing the patient of his or her right to make organ,\ntissue or whole body donations, and the means by which the patient may\nmake such a donation. The commissioner shall promulgate any rules and\nregulations necessary to implement the provisions of this paragraph.\n * (j) As used with regard to applicable regulations issued by the\ndepartment implementing the statement regarding patient rights and\nresponsibilities required pursuant to paragraph (g) of this subdivision,\nthe term "itemized bill" shall, for all periods on and after January\nfirst, two thousand eleven, be defined as reflecting a charges schedule\ndeveloped by each hospital for all ancillary patient services, which\nschedule shall set forth separate charges for each ancillary service\nprovided.\n * NB There are 2 (j)'s\n * (j) The commissioner shall require that the statement regarding\npatient rights and responsibilities, described in paragraph (g) of this\nsubdivision, shall include a provision informing the patient of his or\nher right to not be discriminated against on account of age.\n * NB There are 2 (j)'s\n (k) The statement regarding patient rights and responsibilities,\nrequired pursuant to paragraph (g) of this subdivision, shall include\nprovisions informing the patient of his or her right to choose to submit\nsurprise bills or bills for emergency services to the independent\ndispute process established in article six of the financial services\nlaw, and informing the patient of his or her right to view a list of the\nhospital's standard charges and the health plans the hospital\nparticipates with consistent with section twenty-four of this chapter.\n (l) The statement regarding patient rights and responsibilities,\nrequired pursuant to paragraph (g) of this subdivision, shall include\nprovisions informing the patient of his or her right to choose to\nidentify a caregiver pursuant to article twenty-nine-cccc of this\nchapter.\n 2. (a) The council, by a majority vote of its members, shall adopt and\namend rules and regulations, subject to the approval of the\ncommissioner, to effectuate the provisions and purposes of this article,\nincluding, but not limited to:\n (i) the establishment of requirements for a uniform statewide system\nof reports and audits relating to the quality of medical and physical\ncare provided, hospital utilization, and costs in accordance with\nsection twenty-eight hundred three-b of this article,\n (ii) establishment by the department of schedules of rates, payments,\nreimbursements, grants and other charges for hospital and health-related\nservices as provided in sections twenty-eight hundred seven,\ntwenty-eight hundred seven-a, twenty-eight hundred seven-c and\ntwenty-eight hundred eight of this article. The schedules established\nshall be reasonable and adequate to meet the costs which must be\nincurred by efficiently and economically operated facilities. In\nadopting regulations related to the computation of general hospital\ninpatient payments, the council shall take into consideration the\nelements of cost, geographical differentials in the elements of cost\nconsidered, economic factors in the area in which the hospital is\nlocated, costs of hospitals of comparable size, and the need for\nincentives to improve services and institute economies. The council\nshall exclude from consideration in the regulations adopted nonallowable\ncosts such as the costs for research and those parts of the costs for\neducational salaries which the council determines to be not directly\nrelated to hospital service,\n (iii) the identification of appropriate and reasonable standards for\nthe development of acceptable collection procedures used by general\nhospitals in an effort to collect unpaid bills prior to the\ndetermination that the unpaid bill is a bad debt eligible for\nreimbursement consideration pursuant to paragraphs (e) and (f) of\nsubdivision eight of section twenty-eight hundred seven-a or paragraph\n(b) of subdivision fourteen of section twenty-eight hundred seven-c and\ntwenty-eight hundred seven-k of this article,\n (iv) subject to the provisions of paragraph (e) of subdivision eleven\nof section twenty-eight hundred seven-a of this article or subdivision\nnine of section twenty-eight hundred seven-c of this article, the\nestablishment of guidelines regarding the time to resolve appeals\nsubmitted by general hospitals. The council may consider different\nperiods depending upon whether the basis for the appeal is related to a\ngeneral hospital's existing costs or anticipated future costs,\n (v) standards and procedures relating to hospital operating\ncertificates, provided however, that the council shall establish minimum\nacceptable standards and procedures equal to the standards and\nprocedures which federal law and regulation require for hospitals to\nqualify as providers pursuant to titles XVIII and XIX of the federal\nsocial security act. The existing state standards and procedures in\neffect on the date that this subdivision becomes effective shall be\ndeemed to constitute maximum standards and procedures for purposes of\nlimiting medical assistance reimbursement pursuant to the social\nservices law. Such standards and procedures may thereafter be changed or\nadded to by the council only upon the recommendation of the\ncommissioner. For the purposes of ensuring that the health and safety of\nthe residents of hospitals are not endangered, the council may\npromulgate changes in the minimum acceptable standards and procedures\nreferred to herein upon recommendation of the commissioner, and\n (vi) the establishment of a system of accounts and cost findings to be\nused by hospitals, including a classification of such hospitals and the\nprescription of a system of accounts and cost finding for each class in\naccordance with sections twenty-eight hundred three-b and twenty-eight\nhundred five-a of this article.\n (b) The commissioner may propose rules and regulations and amendments\nthereto for consideration by the council.\n 3. The commissioner may enter into contracts with any political\nsubdivision, voluntary non-profit agency or health systems agency and\nsuch entities are authorized to enter into contracts with the\ncommissioner to effectuate the purposes of this article, however,\ncontracts with voluntary non-profit agencies may not provide for payment\nfor general hospital out-patient and emergency services or for treatment\nor diagnostic center services unless the commissioner is satisfied that\nthe costs incurred for such services are approvable pursuant to the\nprovisions of section twenty-eight hundred seven of this article.\n 4. At the request of the commissioner, hospitals shall furnish to the\ndepartment such reports and information as it may require to effectuate\nthe provisions of this article.\n 5. The commissioner may institute or cause to be instituted in a court\nof competent jurisdiction proceedings to compel compliance with the\nprovisions of this article or the determinations, rules, regulations and\norders of the commissioner or the council.\n 6. The council, by a majority vote of its members and subject to the\napproval of the commissioner, shall adopt rules and regulations to\nestablish (a) a system of penalties of up to one thousand dollars per\nday for continuing violations of rules and regulations promulgated\npursuant to article twenty-eight of this chapter and pertaining to\npatient care by residential health care facilities, specifying the\nviolations and the amount of the penalty to be assessed in connection\nwith each such violation, and (b) a system by which the rate of payment\napproved for a residential health care facility pursuant to section\ntwenty-eight hundred seven of this chapter and certified to the\ndepartment of social services for purposes of reimbursement in the\nmedical assistance program, is reduced in sufficient amount to collect\nsuch penalties. Any reduction of rate to collect penalties shall be\nlimited to five percent of the otherwise established per diem rate or\nthat portion of the per diem rate which represents the owner's return on\nequity, as defined by regulation, whichever is less.\n 7. The commissioner shall have the power to assess penalties in\naccordance with the system of penalties adopted pursuant to subdivision\nsix of this section and pursuant to a hearing conducted in accordance\nwith section twelve-a of this chapter. No penalty shall be assessed\npursuant to subdivision six of this section unless the facility has\nreceived at least thirty days written notice of the existence of the\nviolation, the amount of the penalty for which it may become liable and\nthe steps which must be taken to rectify the violation. If the facility\nfails to rectify the violation within said thirty day period, it shall\nthereafter be liable for such penalty. Any such penalties shall be\nsubject to release and compromise by the commissioner in the same manner\nas a penalty provided by subdivision one of section twelve of this\nchapter. Any penalty assessed pursuant to subdivision six of this\nsection shall be subject to recovery in the same manner as a penalty\nprovided by subdivision one of section twelve of this chapter or\npursuant to the system for reduction of the rate of payment to the\nfacility adopted pursuant to clause (b) of subdivision six of this\nsection. Any such penalty assessed pursuant to subdivision six of this\nsection shall be additional and cumulative to all other penalties or\nremedies existing for violations of rules and regulations promulgated\npursuant to article twenty-eight of this chapter. The provisions of this\nsubdivision shall not be applicable to nor limit any power to assess\npenalties pursuant to section twelve of this chapter; provided, however,\nthat if a penalty is assessed for a violation pursuant to this\nsubdivision, no penalty shall be assessed for such violation pursuant to\nsection twelve of this chapter, and if a penalty is assessed for a\nviolation pursuant to section twelve of this chapter, no penalty shall\nbe assessed for such violation pursuant to this subdivision.\n 8. (a) Notwithstanding any inconsistent provision of law, the\ncommissioner shall establish procedures to be followed by hospitals for\nnotification to mothers and reporting under section three hundred\nsixty-six-g of the social services law.\n (b) Notwithstanding any inconsistent provision of section twelve of\nthis chapter or any other law, the commissioner may impose a civil\npenalty of up to three thousand five hundred dollars for each violation\nof the requirements of subdivision one of section three hundred\nsixty-six-g of the social services law or the rules and regulations\npromulgated pursuant to such section, pertaining to reporting to the\ndepartment, or such other entity designated by the department, of each\nlive birth to a woman receiving medical assistance. Any such civil\npenalties shall be assessed subject to the applicable provisions of\nsections twelve and twelve-a of this chapter.\n 8-a. Notwithstanding any inconsistent provision of law to the\ncontrary, the commissioner shall develop a program to facilitate the use\nof a triage system of care in emergency rooms of hospitals that are\nsubject to the provisions of this article. In developing such program\nthe commissioner shall consider the manner in which such a system would\nbe coordinated, how such a system would provide greater efficiency,\nprovide cost savings to public health programs and a higher quality of\ncare. Within one year from the enactment of such program, the\ncommissioner shall submit a report to the temporary president of the\nsenate and the speaker of the assembly regarding: the impact of such a\nsystem on the cost of Medicaid covered services in the hospital setting;\nquality of care in facilities; along with any other data as may be\nappropriate.\n 9. (a) General hospitals shall, no later than April first, two\nthousand, submit to the commissioner a plan for compliance with part\nfour hundred five of the official compilation of codes, rules and\nregulations of the state of New York regarding the working conditions of\nand limits on working hours for certain members of a hospital's medical\nstaff and postgraduate trainees in such form and manner as specified by\nthe commissioner.\n (b) The commissioner shall audit each hospital for compliance with its\nplan and the applicable regulation on an annual basis. Based upon an\ninitial written audit finding of noncompliance the commissioner shall\nassess a civil penalty of six thousand dollars for each instance of\nnoncompliance identified in such initial audit.\n (c) Within thirty days after the hospital's receipt of written notice\nof noncompliance the hospital shall submit a plan of correction in such\nform and manner as specified by the commissioner for achieving\ncompliance with its plan and with the applicable regulations. The\ncommissioner shall audit each such hospital for compliance with its plan\nand the applicable regulations within a reasonable time after submission\nof such plan of correction. Upon a written finding by the commissioner\nwithin one hundred eighty days of the initial audit finding of\nnoncompliance that the hospital has failed to substantially adhere to\nits plan of correction the commissioner shall assess the hospital a\ncivil penalty of twenty-five thousand dollars. Upon a further subsequent\nwritten finding by the commissioner within one hundred eighty days of\nthe initial audit finding of noncompliance that the hospital has failed\nto substantially adhere to its plan of correction the commissioner shall\nassess the hospital a civil penalty of fifty thousand dollars. Upon each\nand every subsequent written finding by the commissioner within three\nhundred sixty days of the initial audit finding of noncompliance that\nthe hospital has failed to substantially adhere to its plan of\ncorrection the commissioner shall assess the hospital a civil penalty of\nfifty thousand dollars.\n (d) The penalties assessed pursuant to paragraph (c) of this\nsubdivision shall be subject to the provisions of section twelve-a of\nthis chapter.\n (e) Hospitals shall submit to the commissioner any data necessary to\nperform audits pursuant to this subdivision. Any hospital which fails to\nproduce data or documentation requested in furtherance of such audit\nwithin thirty days of such request may be assessed by the commissioner a\ncivil penalty of ten thousand dollars.\n 10. (a) All civil penalties assessed and collected pursuant to section\ntwelve of this chapter for violations of this article and regulations\npromulgated thereunder related to the operation of residential health\ncare facilities, and all civil monetary penalties related to the\noperation of nursing facilities received from the federal government in\naccordance with subdivision (h) of section nineteen hundred nineteen of\nthe federal social security act, shall be deposited by the commissioner\nand credited to the quality of care improvement account which shall be\nestablished by the comptroller in the special revenue fund-other. To the\nextent of funds appropriated therefor, funds shall be made available to\nthe department for expenditures related to the protection of the health\nor property of residents of residential health care facilities that are\nfound to be deficient.\n (b) Any funds available pursuant to paragraph (a) of this subdivision,\nnot used for the purposes of paragraph (a) of this subdivision, shall be\nused, at the commissioner's discretion, to support activities and\ninitiatives intended to improve resident quality of care at residential\nhealth care facilities found to be deficient, as well as for such other\npurposes as are described in this paragraph. Such activities may\ninclude, but are not limited to, relocation of residents to other\nfacilities and the maintenance and operation of a facility pending\ncorrection of deficiencies or closure. The commissioner may also make\ngrants to residential health care facilities that support facilities'\nactivities and initiatives intended to improve residential quality of\ncare pursuant to a request for proposals process.\n * 11. (a) The commissioner shall make regulations relating to\nmidwifery birth centers, including relating to establishment,\nconstruction, and operation, considering the standards of state and\nnational professional associations of midwifery birth centers, in\nconsultation with representatives of midwives, midwifery birth centers,\nand general hospitals providing obstetric services.\n (b) (i) As used in this subdivision, "accrediting organization" means\na national accrediting organization that provides accreditation to\nmidwifery birth centers, recognized by the commissioner in consultation\nwith representatives of midwives, midwifery birth centers, and general\nhospitals providing obstetric services. The commissioner shall not\nunreasonably withhold recognition of an organization seeking to be\nrecognized under this paragraph.\n (ii) Where a proposed midwifery birth center demonstrates the intent\nand capability to obtain and maintain accreditation by an accrediting\norganization, and fully completes and files an application with the\npublic health and health planning council on forms provided by the\ndepartment, it shall be deemed upon approval of the public health and\nhealth planning council to meet the requirements of this article for a\nmidwifery birth center for approval of a certificate of incorporation,\narticles of organization and establishment, contingent on obtaining and\nmaintaining that accreditation. Notwithstanding any other provision of\nthis article to the contrary, such application to the public health and\nhealth planning council shall include information to: (A) satisfy the\ncharacter and competence criteria found in subdivision three of section\ntwenty-eight hundred one-a of this article; (B) demonstrate that the\nlegal structure of the proposed operator of the midwifery birth center\ncomplies with the requirements for establishment of hospitals under\nsection twenty-eight hundred one-a of this article; (C) evidence the\ncapability to fund any acquisition, renovations, and construction costs;\nand (D) demonstrate that the premises and equipment comply with required\nlife safety and building standards necessary to protect the life, safety\nand welfare of patients and staff. Upon receipt of a completed\napplication, the department shall schedule such application for\nconsideration at the next available and appropriate committee meeting by\nthe public health and health planning council. If the department\nreceives an incomplete application, the department shall communicate\nwith the applicant until such time as the application is completed and\nfiled with the public health and health planning council for its\napproval or disapproval, or the applicant withdraws the application.\n (iii) Regulations and requirements of the commissioner under paragraph\n(a) of this subdivision for approval of a certificate of incorporation,\narticles of organization, establishment, and operation of a midwifery\nbirth center established or seeking to be established under this\narticle, including a determination of public need and compliance with\noperational and physical plant standards, shall not be inconsistent\nwith: (A) article one hundred forty of the education law; (B) the\nstandards of the accrediting organization from which the midwifery birth\ncenter proposes to seek, seeks or has obtained accreditation; (C) life\nsafety code or other building standards the commissioner deems necessary\nto protect the life, safety and welfare of patients and staff; and (D)\nsubparagraph (ii) of this paragraph. Regulations, requirements and\nguidance under this subparagraph shall be made by the commissioner after\nconsultation with representatives of midwives, midwifery birth centers,\nand general hospitals providing obstetric services. To the extent any of\nthe standards in this subparagraph conflict, the commissioner shall\naccommodate or modify the application of any standard to harmonize and\nmaximize the intent of the standards.\n * NB There are 2 sb 11's\n * 11. Notwithstanding any provision of this article, or any rule or\nregulation under this article to the contrary, the commissioner shall\nallow outpatient clinics of general hospitals and diagnostic and\ntreatment centers to provide off-site primary care services that are:\n (a) primary care services ordinarily provided to patients on-site at\nthe outpatient clinic or diagnostic and treatment center and are not\nhome care services defined in subdivision one of section thirty-six\nhundred two of this chapter or the professional services enumerated in\nsubdivision two of such section;\n (b) provided by a primary care professional to a patient with a\npre-existing clinical relationship with the outpatient clinic or\ndiagnosis and treatment center, or with the health care professional\nproviding the service; and\n (c) provided to a patient who is unable to leave his or her residence\nto receive services at the outpatient clinic or diagnostic and treatment\ncenter without unreasonable difficulty due to circumstances, including\nbut not limited to, clinical impairment.\n Nothing in this subdivision shall preclude a federally qualified\nhealth center from providing off-site services in accordance with\ndepartment regulations.\n * NB There are 2 sb 11's\n 12. (a) Each residential health care facility shall, no later than\nninety days after the effective date of this subdivision and annually\nthereafter, or more frequently as may be directed by the commissioner,\nprepare and make available to the public on the facility's website, and\nimmediately upon request, in a form acceptable to the commissioner, a\npandemic emergency plan which shall include but not be limited to:\n (i) a communication plan:\n (A) to update authorized family members and resident representatives\nof infected residents at least once per day and upon a change in a\nresident's condition and at least once a week to update all residents\nand authorized families and resident representatives on the number of\ninfections and deaths at the facility, and to update all residents,\nauthorized family members, and resident representatives at the facility\nnot later than five o'clock p.m. the next calendar day following the\ndetection of a confirmed infection of a resident or staff member, or at\nsuch earlier time as guidance from the federal centers for Medicaid and\nmedicare services or centers for disease control and prevention may\nprovide, by electronic or such other means as may be selected by each\nresident, authorized family member or resident representative; and\n (B) that includes a method to provide all residents with daily access,\nat no cost, to remote videoconference or equivalent communication\nmethods with family members and guardians; and\n (C) that includes a method, consistent with any guidance and\nregulations issued by the commissioner, to provide all residents with\naccess, at no cost, to state long-term care ombudsman program staff and\nvolunteers, and that provides state long-term care ombudsman program\nstaff and volunteers with access to the facility; and\n (ii) protection plans against infection for staff, residents and\nfamilies, including:\n (A) a plan for hospitalized residents to be readmitted to such\nresidential health care facility after treatment, in accordance with all\napplicable laws and regulations; and\n (B) a plan for such residential health care facility to maintain or\ncontract to have at least a two-month supply of personal protective\nequipment; and\n (C) a plan or procedure, consistent with any guidance issued by the\nfederal centers for Medicaid and medicare services or centers for\ndisease control and prevention, for placement or grouping of residents\nwithin a facility to reduce transmission of the pandemic disease during\nan infectious disease outbreak in the residential health care facility;\nand\n (iii) a plan for preserving a resident's place in a residential health\ncare facility if such resident is hospitalized, in accordance with all\napplicable laws and regulations.\n (b) The residential health care facility shall prepare and comply with\nthe pandemic emergency plan. Failure to do so shall be a violation of\nthis subdivision and may be subject to civil penalties pursuant to\nsection twelve and twelve-b of this chapter. The commissioner shall\nreview each residential health care facility for compliance with its\nplan and the applicable regulations in accordance with paragraphs (a)\nand (b) of subdivision one of this section.\n (c) Within thirty days after the residential health care facility's\nreceipt of written notice of noncompliance such residential health care\nfacility shall submit a plan of correction in such form and manner as\nspecified by the commissioner for achieving compliance with its plan and\nwith the applicable regulations. The commissioner shall ensure each such\nresidential health care facility complies with its plan of correction\nand the applicable regulations.\n (d) The commissioner shall promulgate any rules and regulations\nnecessary to implement the provisions of this subdivision.\n 13. The commissioner shall require each residential health care\nfacility to provide residents and their families with a separate\ndocument, as part of an intake application, in no less than twelve-point\nfont, that includes information on how a potential resident and their\nfamily members can look up complaints, citations, inspections,\nenforcement actions, and penalties taken against the facility including\nthe web address for the New York state nursing home profiles website\nthat is maintained by the department and the nursing home compare\nwebsite maintained by the United States department of health and human\nservices, if applicable.\n 14. (a) The commissioner, in consultation with the state long-term\ncare ombudsman, shall establish policies and procedures for: (i)\nreporting to the department, by staff and volunteers of the long-term\ncare ombudsman program, on issues identified or witnessed by such staff\nand volunteers that relate to actions, inactions or decisions that may\nadversely affect the health, safety and welfare of residents at\nresidential health care facilities licensed or certified by the\ndepartment in this state. Such policies and procedures shall include,\nbut not be limited to, establishing a telephone hotline number and\nreporting form on the department's website for use by long-term care\nombudsman program staff and volunteers for the submission of reports;\n (ii) timely and regular resolution to any such issues reported to the\ndepartment pursuant to subparagraph (i) of this paragraph. No later than\nsixty days after the receipt of any such issue, the department shall\nprovide the state long-term care ombudsman a report on the status of\nsuch issue. Following the initial report, the department shall provide\nadditional reports to the state long-term care ombudsman no less than\nevery ninety days thereafter until such issue is resolved. Upon\nresolution of such issue, the department shall provide a timely report\nto the state long-term care ombudsman indicating the manner in which the\nissue was resolved; and\n (iii) requiring the department to notify the local ombudsman entity as\ndefined in paragraph (c) of subdivision one of section two hundred\neighteen of the elder law after the department conducts a\nrecertification survey of a facility.\n (b) Nothing in this subdivision shall be construed to limit in any way\na resident's right to privacy and confidentiality pursuant to the\nregulations of the long-term care ombudsman program or the right to\nrefuse to consent to the involvement of the long-term care ombudsman.\n (c) As used in this subdivision: (i) "resolution" shall mean closure\nof a complaint by the department, whether closed as substantiated or\nunsubstantiated; and (ii) "status" shall mean whether the complaint has\nbeen assigned to department staff for investigation, whether the\ncomplaint remains open under active investigation, or whether the\ncomplaint has reached resolution.\n