§ 3610 — Authorization to provide a long term home health care program

§ 3610. Authorization to provide a long term home health care program.\n1. A long term home health care program may be provided only by a\ncertified home health agency, or by a residential health care facility\nor hospital possessing a valid operating certificate issued under\narticle twenty-eight of this chapter. No agency, facility or hospital\nshall provide a long term home health care program without the written\nauthorization of the commissioner to provide such a program.\n 2. A hospital, residential health care facility, or certified home\nhealth agency seeking authorization to provide a long term home health\ncare program shall transmit to the commissioner an application setting\nforth the scope of the proposed program. Such application shall be in a\nformat and shall be submitted in a quantity determined by the\ncommissioner. The commissioner shall transmit the application to the\npublic health and health planning council and to the health systems\nagency, if any, having geographic jurisdiction of the area where the\nproposed program is to be located. The application shall include a\ndetailed description of the proposed program including, but not limited\nto, the following:\n (a) an outline of the institution's or agency's plans for the program;\n (b) the need for the proposed program;\n (c) the number and types of personnel to be employed;\n (d) the ability of the agency, hospital, or facility to provide the\nprogram;\n (e) the estimated number of visits to be provided;\n (f) the geographic area in which the proposed programs will be\nprovided;\n (g) any special or unusual services, programs, or equipment to be\nprovided;\n (h) a demonstration that the proposed program is feasible and adequate\nin terms of both short range and long range goals;\n (i) such other information as the commissioner may require.\n The health systems agency and the public health and health planning\ncouncil shall review the application and submit their recommendations to\nthe commissioner. At the time members of the public health and health\nplanning council are notified that an application is scheduled for\nconsideration, the applicant and the health systems agency shall be so\nnotified in writing. The health systems agency or the public health and\nhealth planning council shall not recommend approval of the application\nunless it is satisfied as to:\n (a) the public need for the program at the time and place and under\nthe circumstances proposed;\n (b) the financial resources of the provider of the proposed program\nand its sources of future revenues;\n (c) the ability of the proposed program to meet those standards\nestablished for participation as a home health agency under title XVIII\nof the federal Social Security Act; and\n (d) such other matters as it shall deem pertinent.\n After receiving and considering the recommendations of the public\nhealth and health planning council and the health systems agency, the\ncommissioner shall make his or her determination. The commissioner shall\nact upon an application after the public health and health planning\ncouncil and the health systems agency have had a reasonable time to\nsubmit their recommendations. The commissioner shall not take any action\ncontrary to the advice of either until he or she affords to either an\nopportunity to request a public hearing and, if so requested, a public\nhearing shall be held. The commissioner shall not approve the\napplication unless he or she is satisfied as to the detailed description\nof the proposed program and\n (a) the public need for the existence of the program at the time and\nplace and under the circumstances proposed;\n (b) the financial resources of the provider of the proposed program\nand its sources of future revenues;\n (c) the ability of the proposed program to meet those standards\nestablished for participation as a home health agency under title XVIII\nof the federal Social Security Act; and\n (d) such other matters as he or she shall deem pertinent.\n If the application is approved, the applicant shall be so notified in\nwriting. The commissioner's written approval of the application shall\nconstitute authorization to provide a long term home health care\nprogram. If the commissioner proposes to disapprove the application, he\nor she shall notify the applicant in writing, stating his or her reasons\nfor disapproval, and afford the applicant an opportunity for a public\nhearing.\n 3. Authorization to provide a long term home health program may be\nrevoked, suspended, limited or annulled by the commissioner on proof\nthat a provider of a long term home health care program has failed to\ncomply with the provisions of this article or rules and regulations\npromulgated thereunder.\n 4. (a) Such authorization shall not be revoked, suspended, limited or\nannulled without a hearing. However, such authorization may be\ntemporarily suspended or limited without a hearing for a period not in\nexcess of thirty days upon written notice to the provider of a long term\nhome health care program following a finding by the department that the\npublic health or safety is in imminent danger.\n (b) The commissioner shall fix a time and place for the hearing. A\ncopy of the charges, together with the notice of the time and place of\nthe hearing, shall be served in person or mailed by registered or\ncertified mail to the provider of a long term home health care program\nat least twenty-one days before the date fixed for the hearing. Such\nprovider shall file with the department not less than eight days prior\nto the hearing, a written answer to the charges.\n (c) All orders or determinations hereunder shall be subject to review\nas provided in article seventy-eight of the civil practice law and\nrules. Application for such review must be made within sixty days after\nservice in person or by registered or certified mail of a copy of the\norder or determination upon the applicant.\n 5. (a) Notwithstanding the provisions of subdivision four of this\nsection, the commissioner shall suspend, limit or revoke the\nauthorization of a provider of a long term home health care program\nafter taking into consideration the public need for the program and the\navailability of other services which may serve as alternatives or\nsubstitutes, and after finding that suspending, limiting, or revoking\nthe authorization of such provider would be within the public interest\nin order to conserve health resources by restricting the level of\nservices to those which are actually needed.\n (c) Whenever any finding as described in paragraph (a) of this\nsubdivision is under consideration with respect to any particular\nprovider of a long term home health care program, the commissioner shall\ncause to be published, in a newspaper of general circulation in the\ngeographic area of such provider, at least thirty days prior to making\nsuch a finding an annnouncement that such a finding is under\nconsideration and an address to which interested persons can write to\nmake their views known. The commissioner shall take all public comments\ninto consideration in making such a finding.\n (d) The commissioner shall, upon making any finding described in\nparagraph (a) of this subdivision with respect to any provider of a long\nterm home health care program, cause such provider and the appropriate\nhealth systems agency to be notified of the finding at least thirty days\nin advance of taking the proposed action. Upon receipt of any such\nnotification and before the expiration of the thirty days or such longer\nperiod as may be specified in the notice, the provider or the\nappropriate health systems agency may request a public hearing to be\nheld in the county in which the provider is located. In no event shall\nthe revocation, suspension or limitation take effect prior to the\nthirtieth day after the date of the notice, or prior to the effective\ndate specified in the notice or prior to the date of the hearing\ndecision, whichever is later.\n (e) Except as otherwise provided by law, all appeals from a finding of\nthe commissioner made pursuant to paragraph (a) of this subdivision\nshall be directly to the appellate division of the supreme court in the\nthird department. Except as otherwise expressly provided by law, such\nappeals shall have preference over all issues in all courts.\n 6. (a) The commissioner shall charge to applicants for the\nauthorization or construction of long term home health care programs an\napplication fee of two thousand dollars. Each such applicant shall, at\nsuch time as the commissioner's written approval of a construction\napplication is granted, pay an additional fee of thirty hundredths of\none percent of the total capital value of the application.\n (b) The fees paid by an applicant pursuant to this subdivision for any\napplication approved in accordance with this section shall be deemed\nallowable costs in the determination of reimbursement rates established\npursuant to this article. All fees pursuant to this section shall be\npayable to the department of health for deposit into the special revenue\nfunds - other, miscellaneous special revenue fund - 339, certificate of\nneed account.\n