Section 2803. Commissioner and council; powers and duties
Latest version.
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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, including a patient complaint and quality of care review process, a right to an appropriate patient discharge plan and 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 š(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 š(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 š(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 š(j)'s 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 or services under the prenatal care assistance program under title two of article twenty-five of this chapter. Any such civil penalties shall be assessed subject to the applicable provisions of sections twelve and twelve-a of this chapter. 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.