Section 3610. Authorization to provide a long term home health care program

1.  A  long  term  home  health  care  program may be provided only by a
  certified home health agency, or by a residential health  care  facility
  or  hospital  possessing  a  valid  operating  certificate  issued under
  article twenty-eight of this chapter. No agency,  facility  or  hospital
  shall  provide  a long term home health care program without the written
  authorization of the commissioner to provide such a program.
    2. A hospital, residential health care  facility,  or  certified  home
  health  agency  seeking authorization to provide a long term home health
  care program shall transmit to the commissioner an  application  setting
  forth  the scope of the proposed program. Such application shall be in a
  format  and  shall  be  submitted  in  a  quantity  determined  by   the
  commissioner.  The  commissioner  shall  transmit the application to the
  state hospital review and planning council and  to  the  health  systems
  agency  having  geographic  jurisdiction  of the area where the proposed
  program is to be located.  The  application  shall  include  a  detailed
  description  of  the proposed program including, but not limited to, the
  following:
    (a) an outline of the institution's or agency's plans for the program;
    (b) the need for the proposed program;
    (c) the number and types of personnel to be employed;
    (d) the ability of the agency, hospital, or facility  to  provide  the
  program;
    (e) the estimated number of visits to be provided;
    (f)  the  geographic  area  in  which  the  proposed  programs will be
  provided;
    (g) any special or unusual services,  programs,  or  equipment  to  be
  provided;
    (h) a demonstration that the proposed program is feasible and adequate
  in terms of both short range and long range goals;
    (i) such other information as the commissioner may require. The health
  systems  agency and the state hospital review and planning council shall
  review  the  application  and  submit  their  recommendations   to   the
  commissioner.  At  the  time  members  of  the state hospital review and
  planning council are notified  that  an  application  is  scheduled  for
  consideration,  the  applicant and the health systems agency shall be so
  notified in writing.
    The health systems agency or the state hospital  review  and  planning
  council  shall  not  recommend  approval of the application unless it is
  satisfied as to:
    (a) the public need for the program at the time and  place  and  under
  the circumstances proposed;
    (b)  the  financial  resources of the provider of the proposed program
  and its sources of future revenues;
    (c) the ability of  the  proposed  program  to  meet  those  standards
  established  for participation as a home health agency under title XVIII
  of the federal Social Security Act; and
    (d) such other matters as it shall deem pertinent.
    After receiving and  considering  the  recommendations  of  the  state
  hospital  review and planning council and the health systems agency, the
  commissioner shall make his determination. The  commissioner  shall  act
  upon an application after the state hospital review and planning council
  and the health systems agency have had a reasonable time to submit their
  recommendations.  The commissioner shall not take any action contrary to
  the advice of either until  he  affords  to  either  an  opportunity  to
  request a public hearing and, if so requested, a public hearing shall be
  held.  The  commissioner  shall not approve the application unless he is
  satisfied as to the detailed description of the proposed program and

    (a) the public need for the existence of the program at the  time  and
  place and under the circumstances proposed;
    (b)  the  financial  resources of the provider of the proposed program
  and its sources of future revenues;
    (c) the ability of  the  proposed  program  to  meet  those  standards
  established  for participation as a home health agency under title XVIII
  of the federal Social Security Act; and
    (d) such other matters as he shall deem pertinent.
    If the application is approved, the applicant shall be so notified  in
  writing.  The  commissioner's  written approval of the application shall
  constitute authorization  to  provide  a  long  term  home  health  care
  program.  In  making his authorization, the commissioner shall stipulate
  the maximum number of persons which a  provider  of  a  long  term  home
  health   care  program  may  serve.  If  the  commissioner  proposes  to
  disapprove the application, he shall notify the  applicant  in  writing,
  stating  his  reasons  for  disapproval,  and  afford  the  applicant an
  opportunity for a public hearing.
    3. Authorization to provide a long term home  health  program  may  be
  revoked,  suspended,  limited  or  annulled by the commissioner on proof
  that a provider of a long term home health care program  has  failed  to
  comply  with  the  provisions  of  this article or rules and regulations
  promulgated thereunder.
    4. (a) Such authorization shall not be revoked, suspended, limited  or
  annulled   without   a  hearing.  However,  such  authorization  may  be
  temporarily suspended or limited without a hearing for a period  not  in
  excess of thirty days upon written notice to the provider of a long term
  home  health care program following a finding by the department that the
  public health or safety is in imminent danger.
    (b) The commissioner shall fix a time and place  for  the  hearing.  A
  copy  of  the charges, together with the notice of the time and place of
  the hearing, shall be served  in  person  or  mailed  by  registered  or
  certified  mail  to the provider of a long term home health care program
  at least twenty-one days before the date fixed  for  the  hearing.  Such
  provider  shall  file with the department not less than eight days prior
  to the hearing, a written answer to the charges.
    (c) All orders or determinations hereunder shall be subject to  review
  as  provided  in  article  seventy-eight  of  the civil practice law and
  rules.  Application for such review must be made within sixty days after
  service in person or by registered or certified mail of a  copy  of  the
  order or determination upon the applicant.
    5.  (a)  Notwithstanding  the  provisions  of subdivision four of this
  section,  the  commissioner  shall  suspend,   limit   or   revoke   the
  authorization  of  a  provider  of  a long term home health care program
  after taking into consideration the public need for the program and  the
  availability  of  other  services  which  may  serve  as alternatives or
  substitutes, and after finding that suspending,  limiting,  or  revoking
  the  authorization  of such provider would be within the public interest
  in order to conserve  health  resources  by  restricting  the  level  of
  services to those which are actually needed.
    (b)  Notwithstanding  the  provisions  of  subdivision  four  of  this
  section, the commissioner may reduce the maximum number of persons which
  a provider of a long term home health  care  program  is  authorized  to
  serve  after  finding  that  the  number  stipulated  in such provider's
  authorization is  not  being  effectively  utilized.  In  addition,  the
  commissioner  may  increase  the number of persons which a provider of a
  long term home health care program is authorized to serve after  finding
  that   the   number  stipulated  in  such  provider's  authorization  is

  insufficient to serve persons eligible to receive long term home  health
  care who reside in the area served by such provider.
    (c)  Whenever  any  finding  as  described  in  paragraph  (a) of this
  subdivision is  under  consideration  with  respect  to  any  particular
  provider of a long term home health care program, the commissioner shall
  cause  to  be  published,  in  a newspaper of general circulation in the
  geographic area of such provider, at least thirty days prior  to  making
  such   a   finding  an  annnouncement  that  such  a  finding  is  under
  consideration and an address to which interested persons  can  write  to
  make  their views known. The commissioner shall take all public comments
  into consideration in making such a finding.
    (d) The commissioner shall,  upon  making  any  finding  described  in
  paragraph (a) of this subdivision with respect to any provider of a long
  term  home  health care program, cause such provider and the appropriate
  health systems agency to be notified of the finding at least thirty days
  in advance of taking the proposed  action.  Upon  receipt  of  any  such
  notification and before the expiration of the thirty days or such longer
  period  as  may  be  specified  in  the  notice,  the  provider  or  the
  appropriate health systems agency may request a  public  hearing  to  be
  held  in  the county in which the provider is located. In no event shall
  the revocation, suspension  or  limitation  take  effect  prior  to  the
  thirtieth  day  after  the date of the notice, or prior to the effective
  date specified in the notice  or  prior  to  the  date  of  the  hearing
  decision, whichever is later.
    (e) Except as otherwise provided by law, all appeals from a finding of
  the  commissioner  made  pursuant  to  paragraph (a) of this subdivision
  shall be directly to the appellate division of the supreme court in  the
  third  department.  Except  as otherwise expressly provided by law, such
  appeals shall have preference over all issues in all courts.
    6.  (a)  The  commissioner  shall  charge  to   applicants   for   the
  authorization  or construction of long term home health care programs an
  application fee of two thousand dollars. Each such applicant  shall,  at
  such  time  as  the  commissioner's  written  approval of a construction
  application is granted, pay an additional fee of  thirty  hundredths  of
  one percent of the total capital value of the application.
    (b) The fees paid by an applicant pursuant to this subdivision for any
  application  approved  in  accordance  with this section shall be deemed
  allowable costs in the determination of reimbursement rates  established
  pursuant  to  this  article.  All fees pursuant to this section shall be
  payable to the department of health for deposit into the special revenue
  funds - other, miscellaneous special revenue fund - 339, certificate  of
  need account.