Section 4008. Certification of hospices

1. The commissioner shall not issue
  a  certificate  of  approval  to any hospice unless it complies with the
  provisions of this article and the  rules  and  regulations  promulgated
  pursuant  thereto,  in  accordance  with  the  standards  and procedures
  adopted by the state  hospital  review  and  planning  council,  and  is
  qualified  to  participate as a hospice under title XVIII of the Federal
  Social Security Act, provided, however that the commissioner shall issue
  a certificate of approval to a hospice  if  he  is  satisfied  that  the
  hospice  cannot qualify to participate as a hospice under title XVIII of
  the Federal Social Security Act solely because it  proposes  to  provide
  nursing  services by arrangement with a certified home health agency. No
  person, partnership or organization shall hold itself out as  a  hospice
  unless it shall possess a valid certificate of approval.
    2.  Any  hospice  demonstration  program  participant  applying  for a
  certificate of approval by  the  first  day  of  June  nineteen  hundred
  eighty-four  and  meeting  all  applicable  standards  shall be issued a
  certificate of approval.
    3. Subject to the provisions of this section and section four thousand
  ten of this article, contractual agreements between a hospice and  other
  providers  of  other care and services shall not be prohibited, provided
  that  the  hospice  maintains  full  responsibility  for  the  planning,
  coordination  and quality of such services and the adherence to the plan
  of care established for the patients.
    4. A hospice  certificate  of  approval  may  be  revoked,  suspended,
  limited  or  annulled  by the commissioner on proof that the hospice has
  failed to comply with the  provisions  of  this  article  or  rules  and
  regulations promulgated thereunder.
    5.  No  hospice  certificate  of approval shall be revoked, suspended,
  limited or annulled without a hearing. However,  a  certificate  may  be
  temporarily  suspended  or limited without a hearing for a period not in
  excess of thirty days upon written notice to  the  hospice  following  a
  finding  by  the  department  that  the  public  health  or safety is in
  imminent danger.
    6. 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 hospice at least twenty-one days before the date
  fixed for the hearing. The hospice shall file with  the  department  not
  less  than  eight  days  prior  to  the hearing, a written answer to the
  charges.
    7. 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.
    8. (a) Notwithstanding the provisions  of  subdivisions  five  through
  seven of this section, the commissioner shall suspend, limit or revoke a
  hospice  certificate  of  approval  after  taking into consideration the
  public need for the hospice and the availability of other services which
  may serve  as  alternatives  or  substitutes,  and  after  finding  that
  suspending,  limiting,  or  revoking  the certificate of approval of the
  hospice 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) Whenever any  finding  as  described  in  paragraph  (a)  of  this
  subdivision  is  under  consideration  with  respect  to  any particular
  hospice, the commissioner shall cause to be published, in a newspaper of
  general circulation in the geographic area  of  the  hospice,  at  least

  thirty  days  prior  to  making such a finding an announcement that such
  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.
    (c)  The  commissioner  shall,  upon  making  any finding described in
  paragraph (a) of this subdivision with respect  to  any  hospice,  cause
  such hospice and the appropriate health systems agency to be notified of
  the  finding  at  least  thirty  days  in advance of taking the proposed
  action  to  revoke,  suspend  or  limit  the  hospice's  certificate  of
  approval.    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 hospice or the appropriate health systems agency may
  request a public hearing to be held in the county in which  the  hospice
  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.
    (d) 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.