Public Health Law
Article 28
HOSPITALS
Section
2800. Declaration of policy and statement of purpose.
2801. Definitions.
2801-a. Establishment or incorporation of hospitals.
2801-b. Improper practices in hospital staff appointments and
extension of professional privileges prohibited.
2801-c. Injunctions.
2801-d. Private actions by patients of residental health care
facilities.
2802. Approval of construction.
2803. Commissioner and council; powers and duties.
2803-a. Authority to contract.
2803-b. Uniform reports and accounting systems for hospital
costs.
2803-c. Rights of patients in certain medical facilities.
2803-d. Reporting abuses of persons receiving care or
services in residential health care facilities.
2803-e. Reporting incidents of possible professional
misconduct.
2803-e*. Residential health care facilities; return and
redistribution of unused medication.
2803-f. Respite projects.
2803-g. Board of visitors in county owned residential health
care facility.
2803-h. Health related facility; pet therapy programs.
2803-i. General hospital inpatient discharge review program.
2803-j. Information for maternity patients.
2803-j. Nursing home nurse aide registry.
2803-k. In-patient nasogastric feeding procedures.
2803-l. Community service plans.
2803-m. Discharge of hospital patients to adult homes.
2803-n. Hospital care for maternity patients.
2803-o. Hospital care for mastectomy, lumpectomy, and lymph
node dissection patients.
2803-p. Disclosure of information concerning family violence.
2804. Units for hospital and health-related affairs.
2804-a. State task force on clinical practice guidelines and
medical technology assessment.
2805. Approval of hospitals; operating certificates.
2805-a. Disclosure of financial transactions.
2805-b. Admission of patients and emergency treatment of
nonadmitted patients.
2805-c. (enacted without heading)
2805-d. Limitation of medical, dental or podiatric
malpractice action based on lack of informed
consent.
2805-e. Reports of residential health care facilities.
2805-f. Money deposited or advanced for admittance to nursing
homes; waiver void; administration expenses.
2805-g. Maintenance of records.
2805-h. Immunizations against poliomyelitis, mumps, measles,
diptheria and rubbella.
2805-i. Treatment of sexual offense victims and maintenance
of evidence in a sexual offense.
2805-j. Medical, dental and podiatric malpractice prevention
program.
2805-k. Investigations prior to granting or renewing
privileges.
2805-l. Incident reporting.
2805-m. Confidentiality.
2805-n. Child abuse prevention.
2805-o. Identification of veteran by nursing homes and
residential health care facilities.
2806. Hospital operating certificates; suspension or
revocation.
2806-b. Residential health care facilities; revocation of
operating certificate.
2807. Hospital reimbursement provisions; generally.
2807-a. General hospital nineteen hundred eighty-six and
nineteen hundred eighty-seven inpatient rates and
charges.
2807-b. Diagnostic and treatment centers; grants.
2807-c. General hospital inpatient reimbursement for annual
rate periods beginning on or after January first,
nineteen hundred eighty-eight.
2807-d. Hospital assessments.
2807-e. Uniform bills.
2807-f. Health maintenance organization payment factor.
2807-g. Health workforce retraining program.
2807-h. Health occupation development and workplace
demonstration programs.
2807-i. Service and quality improvement grants.
2807-j. Patient services payments.
2807-k. General hospital indigent care pool.
2807-l. Health care initiatives pool distributions.
2807-m. Distribution of the professional education pools.
2807-p. Comprehensive diagnostic and treatment centers
indigent care program.
2807-r. Grants for expansion of cancer services.
2807-s. Professional education pool funding.
2807-t. Assessments on covered lives.
2807-u. Transfers for tax credits.
2807-v. Tobacco control and insurance initiatives pool
distributions.
2807-w. High need indigent care adjustment pool.
2808. Residental health care facilities; rates of payment.
2808-a. Liability of certain persons.
2808-b. Certification of financial statements and financial
information.
2808-c. Reimbursement of general hospital inpatient services.
2808-d. Nursing home quality improvement demonstration
program.
2809. Residential health care facilities; powers to require
security.
2810. Residential health care facilities; receivership.
2811. Discounts and splitting fees with medical referral
services; prohibited.
2812. Construction.
2813. Separability.
2814. Health networks, global budgeting, and health care
demonstrations.
2815. Health facility restructuring program.
2816. Statewide planning and research cooperative system.
S 2800. Declaration of policy and statement of purpose. Hospital and
related services including health-related service of the highest
quality, efficiently provided and properly utilized at a reasonable
cost, are of vital concern to the public health. In order to provide for
the protection and promotion of the health of the inhabitants of the
state, pursuant to section three of article seventeen of the
constitution, the department of health shall have the central,
comprehensive responsibility for the development and administration of
the state`s policy with respect to hospital and related services, and
all public and private institutions, whether state, county, municipal,
incorporated or not incorporated, serving principally as facilities for
the prevention, diagnosis or treatment of human disease, pain, injury,
deformity or physical condition or for the rendering of health-related
service shall be subject to the provisions of this article.
S 2801. Definitions. The following words or phrases, as used in this
article, shall have the following meanings, unless the context otherwise
requires:
1. "Hospital" means a facility or institution engaged principally in
providing services by or under the supervision of a physician or, in the
case of a dental clinic or dental dispensary, of a dentist, for the
prevention, diagnosis or treatment of human disease, pain, injury,
deformity or physical condition, including, but not limited to, a
general hospital, public health center, diagnostic center, treatment
center, dental clinic, dental dispensary, rehabilitation center other
than a facility used solely for vocational rehabilitation, nursing home,
tuberculosis hospital, chronic disease hospital, maternity hospital,
lying-in-asylum, out-patient department, out-patient lodge, dispensary
and a laboratory or central service facility serving one or more such
institutions, but the term hospital shall not include an institution,
sanitarium or other facility engaged principally in providing services
for the prevention, diagnosis or treatment of mental disability and
which is subject to the powers of visitation, examination, inspection
and investigation of the department of mental hygiene except for those
distinct parts of such a facility which provide hospital service. The
provisions of this article shall not apply to a facility or institution
engaged principally in providing services by or under the supervision of
the bona fide members and adherents of a recognized religious
organization whose teachings include reliance on spiritual means through
prayer alone for healing in the practice of the religion of such
organization and where services are provided in accordance with those
teachings.
2. "Nursing home" means a facility providing therein nursing care to
sick, invalid, infirm, disabled or convalescent persons in addition to
lodging and board or health-related service, or any combination of the
foregoing, and in addition thereto, providing nursing care and
health-related service, or either of them, to persons who are not
occupants of the facility.
3. "Residential health care facility" means a nursing home or a
facility providing health-related service.
4. (a) "Hospital service" means the preadmission, out-patient,
in-patient and post discharge care provided in or by a hospital, and
such other items or services as are necessary for such care, which are
provided by or under the supervision of a physician for the purpose of
prevention, diagnosis or treatment of human disease, pain, injury,
disability, deformity or physical condition, including, but not limited
to, nursing service, home-care nursing and other paramedical service,
ambulance service, service provided by an intern or resident in
training, laboratory service, medical social service, drugs,
biologicals, supplies, appliances, equipment, bed and board.
(b) "Health-related service" means service in a facility or facilities
which provide or offer lodging, board and physical care including, but
not limited to, the recording of health information, dietary supervision
and supervised hygienic services incident to such service.
5. "Construction" means the erection, building, or substantial
acquisition, alteration, reconstruction, improvement, extension or
modification of a hospital, including its equipment; the inspection and
supervision thereof; and the studies, surveys, designs, plans, working
drawings, specifications, procedures and other actions necessary
thereto.
6. "Council" means the state hospital review and planning council.
7. "Government agency" means a department, board, bureau, division,
office, agency, public benefit or other corporation, or any other unit,
however described, of the state or a political subdivision thereof.
8. "Caretaker" means a person appointed pursuant to the provisions of
section twenty-eight hundred six-b of this article, to act as a
fiduciary responsible to the court which appoints him for the conserving
and preserving of the rights and property of the operator of a
residential health care facility, while also preserving and providing
for the rights of the patients in such facility to care appropriate to
their needs in a clean and wholesome environment in accordance with
applicable federal and state laws and regulations.
9. "Out-patient lodge" means a facility affiliated with an institution
providing hospital service, which provides therein food and overnight
lodging to the chronically ill undergoing out-patient treatment for
cancer at such institution.
10. "General hospital" means a hospital engaged in providing medical
or medical and surgical services primarily to in-patients by or under
the supervision of a physician on a twenty-four hour basis with
provisions for admission or treatment of persons in need of emergency
care and with an organized medical staff and nursing service, including
facilities providing services relating to particular diseases, injuries,
conditions or deformities. The term general hospital shall not include a
residential health care facility, public health center, diagnostic
center, treatment center, out-patient lodge, dispensary and laboratory
or central service facility serving more than one institution.
S 2801-a. Establishment or incorporation of hospitals. 1. No hospital,
as defined in this article, shall be established except with the written
approval of the public health council. No certificate of incorporation
of a business membership or not-for-profit corporation shall hereafter
be filed which includes among its corporate purposes or powers the
establishment or operation of any hospital, as defined in this article,
or the solicitation of contributions for any such purpose, or two or
more of such purposes, except with the written approval of the public
health council, and when otherwise required by law of a justice of the
supreme court, endorsed on or annexed to the certificate of
incorporation. No articles of organization of a limited liability
company established pursuant to the New York limited liability company
law which includes among its powers or purposes the establishment or
operation of any hospital as defined in this article, shall be filed
with the department of state except upon the approval of the public
health council.
2. With respect to the incorporation or establishment of any hospital,
as defined in this article, the public health council shall give written
approval after all of the following requirements have been met. An
application for approval of the proposed certificate of incorporation,
articles of organization or establishment shall be filed with the public
health council together with such other forms and information as shall
be prescribed by, or acceptable to, the public health council.
Thereafter, the public health council shall forward a copy of the
proposed certificate or application for establishment, and accompanying
documents, to the state hospital review and planning council and the
health systems agency having geographical jurisdiction of the area where
the proposed institution is to be located. The public health council
shall act upon such application after the state council and the health
systems agency have had a reasonable time to submit their
recommendations. At the time members of the public health council are
notified that an application is scheduled for consideration, the
applicant and the health systems agency shall be so notified in writing.
The public health council shall afford the applicant an opportunity to
present information in person concerning the application to a committee
designated by the council. The public health council shall not take any
action contrary to the advice of either the state council or the health
systems agency until it affords to either an opportunity to request a
public hearing and, if so requested, a public hearing shall be held. If
the public health council proposes to disapprove the application it
shall afford the applicant an opportunity to request a public hearing.
The public health council may hold a public hearing on the application
on its own motion. Any public hearing held pursuant to this subdivision
may be conducted by the public health council, or by any individual
designated by the public health council. Beginning on January first,
nineteen hundred ninety-four, and each year thereafter, a complete
application received between January first and June thirtieth of each
year shall be reviewed by the appropriate health systems agency and the
department and presented to the state hospital review and planning
council for its consideration prior to June thirtieth of the following
year and a complete application received between July first and December
thirty-first of each year shall be reviewed by the appropriate health
systems agency and the department presented to the state hospital review
and planning council for consideration prior to December thirty-first of
the following year.
2-a. (a) Notwithstanding any provision of law to the contrary, the
commissioner is authorized to approve a certificate of incorporation or
articles of organization for establishment of a hospital, provided that:
(i) the certificate of incorporation or articles of organization
reflects solely a change in the form of the business organization of an
existing entity which had been approved by the public health council;
and (ii) every incorporator, stockholder, member, director and sponsor
of the new entity shall have been an owner, partner, incorporator,
stockholder, member, director or sponsor of the existing entity; and
(iii) the distribution of ownership, interests and voting rights in the
new entity shall be the same as in the existing entity; and (iv) there
shall be no change in the operator of a hospital other than the form of
its business organization, as a result of the approval of such
certificate of incorporation or articles of organization. Any approval
by the public health council of a person as an owner, incorporator,
stockholder, member, director or sponsor in the existing entity shall be
deemed to be approval for the same degree of participation in the new
entity. If the proposal is acceptable to the commissioner an amended
operating certificate shall be issued. In the event the commissioner
determines that the proposed transfer is not approvable the application
shall be referred to the public health council for its review and
action. If the public health council proposes to disapprove the
application, it shall afford the applicant an opportunity to request a
public hearing and, if so requested, a public hearing shall be held. Any
public hearing held pursuant to this subdivision may be conducted by the
public health council, or by any individual designated by the public
health council.
3. The public health council shall not approve a certificate of
incorporation, articles of organization or application for establishment
unless it is satisfied, insofar as applicable, as to (a) the public need
for the existence of the institution at the time and place and under the
circumstances proposed, provided, however, that in the case of an
institution proposed to be established or operated by an organization
defined in subdivision one of section one hundred seventy-two-a of the
executive law, the needs of the members of the religious denomination
concerned, for care or treatment in accordance with their religious or
ethical convictions, shall be deemed to be public need; (b) the
character, competence, and standing in the community, of the proposed
incorporators, directors, sponsors, stockholders, members or operators;
with respect to any proposed incorporator, director, sponsor,
stockholder, member or operator who is already or within the past ten
years has been an incorporator, director, sponsor, member, principal
stockholder, principal member, or operator of any hospital, private
proprietary home for adults, residence for adults, or non-profit home
for the aged or blind which has been issued an operating certificate by
the state department of social services, or a halfway house, hostel or
other residential facility or institution for the care, custody or
treatment of the mentally disabled which is subject to approval by the
department of mental hygiene, no approval shall be granted unless the
public health council, having afforded an adequate opportunity to
members of health systems agencies having geographical jurisdiction of
the area where the institution is to be located to be heard, shall
affirmatively find by substantial evidence as to each such incorporator,
director, sponsor, principal stockholder or operator that a
substantially consistent high level of care is being or was being
rendered in each such hospital, home, residence, halfway house, hostel,
or other residential facility or institution with which such person is
or was affiliated; for the purposes of this paragraph, the public health
council shall adopt rules and regulations, subject to the approval of
the commissioner, to establish the criteria to be used to determine
whether a substantially consistent high level of care has been rendered,
provided, however, that there shall not be a finding that a
substantially consistent high level of care has been rendered where
there have been violations of the state hospital code, or other
applicable rules and regulations, that (i) threatened to directly affect
the health, safety or welfare of any patient or resident, and (ii) were
recurrent or were not promptly corrected; (c) the financial resources of
the proposed institution and its sources of future revenues; and (d)
such other matters as it shall deem pertinent.
3-a. Notwithstanding any other provisions of this chapter, the public
health council is hereby empowered to approve the establishment, for
demonstration purposes, of not more than one existing hospital within
the geographical jurisdiction of each health systems agency established
under the provisions of subdivision (c) of section twenty-nine hundred
four of this chapter. The purposes of such hospitals shall be to offer
and provide nursing home services, board and lodging to persons
requiring such services within one hospital. The public health council
may approve the establishment of such hospitals without regard to the
requirement of public need as set forth in subdivision three of this
section.
4. (a) Any change in the person who is the operator of a hospital
shall be approved by the public health council in accordance with the
provisions of subdivisions two and three of this section.
Notwithstanding any inconsistent provision of this paragraph, any change
by a natural person who is the operator of a hospital seeking to
transfer part of his or her interest in such hospital to another person
or persons so as to create a partnership shall be approved in accordance
with the provisions of paragraph (b) of this subdivision.
(b) (i) Any transfer, assignment or other disposition of ten percent
or more of an interest or voting rights in a partnership or limited
liability company, which is the operator of a hospital to a new partner
or member, shall be approved by the public health council in accordance
with the provisions of subdivisions two and three of this section,
except that: (A) any such change shall be subject to the approval by the
public health council in accordance with paragraph (b) of subdivision
three of this section only with respect to the new partner or member,
and any remaining partners or members who have not been previously
approved for that facility in accordance with such paragraph, and (B)
such change shall not be subject to paragraph (a) of subdivision three
of this section.
(ii) With respect to a transfer, assignment or disposition involving
less than ten percent of an interest or voting rights in such
partnership or limited liability company to a new partner or member, no
prior approval of the public health council shall be required. However,
no such transaction shall be effective unless at least ninety days prior
to the intended effective date thereof, the partnership or limited
liability company fully completes and files with the public health
council notice on a form, to be developed by the public health council,
which shall disclose such information as may reasonably be necessary for
the public health council to determine whether it should bar the
transaction for any of the reasons set forth in item (A), (B), (C) or
(D) below. Within ninety days from the date of receipt of such notice,
the public health council may bar any transaction under this
subparagraph: (A) if the equity position of the partnership or limited
liability company, determined in accordance with generally accepted
accounting principles, would be reduced as a result of the transfer,
assignment or disposition; (B) if the transaction would result in the
ownership of a partnership or membership interest by any persons who
have been convicted of a felony described in subdivision five of section
twenty-eight hundred six of this article; (C) if there are reasonable
grounds to believe that the proposed transaction does not satisfy the
character and competence criteria set forth in subdivision three of this
section; or (D) if the transaction, together with all transactions under
this subparagraph for the partnership, or successor, during any five
year period would, in the aggregate, involve twenty-five percent or more
of the interest in the partnership. The public health council shall
state specific reasons for barring any transaction under this
subparagraph and shall so notify each party to the proposed transaction.
(iii) With respect to a transfer, assignment or disposition of an
interest or voting rights in such partnership or limited liability
company to any remaining partner or member, which transaction involves
the withdrawal of the transferor from the partnership or limited
liability company, no prior approval of the public health council shall
be required. However, no such transaction shall be effective unless at
least ninety days prior to the intended effective date thereof, the
partnership or limited liability company fully completes and files with
the public health council notice on a form, to be developed by the
public health council, which shall disclose such information as may
reasonably be necessary for the public health council to determine
whether it should bar the transaction for the reason set forth below.
Within ninety days from the date of receipt of such notice, the public
health council may bar any transaction under this subparagraph if the
equity position of the partnership or limited liability company,
determined in accordance with generally accepted accounting principles,
would be reduced as a result of the transfer, assignment or disposition.
The public health council shall state specific reasons for barring any
transaction under this subparagraph and shall so notify each party to
the proposed transaction.
(c) Any transfer, assignment or other disposition of ten percent or
more of the stock or voting rights thereunder of a corporation which is
the operator of a hospital or which is a member of a limited liability
company which is the operator of a hospital to a new stockholder, or any
transfer, assignment or other disposition of the stock or voting rights
thereunder of such a corporation which results in the ownership or
control of more than ten percent of the stock or voting rights
thereunder of such corporation by any person not previously approved by
the public health council for that corporation shall be subject to
approval by the public health council in accordance with the provisions
of subdivisions two and three of this section and rules and regulations
pursuant thereto; except that: any such transaction shall be subject to
the approval by the public health council in accordance with paragraph
(b) of subdivision three of this section only with respect to a new
stockholder or a new principal stockholder; and shall not be subject to
paragraph (a) of subdivision three of this section. In the absence of
such approval, the operating certificate of such hospital shall be
subject to revocation or suspension. No prior approval of the public
health council shall be required with respect to a transfer, assignment
or disposition of ten percent or more of the stock or voting rights
thereunder of a corporation which is the operator of a hospital or which
is a member of a limited liability company which is the owner of a
hospital to any person previously approved by the public health council
for that corporation. However, no such transaction shall be effective
unless at least ninety days prior to the intended effective date
thereof, the stockholder completes and files with the public health
council notice on forms to be developed by the public health council,
which shall disclose such information as may reasonably be necessary for
the public health council to determine whether it should bar the
transaction. Such transaction will be final as of the intended effective
date unless, prior thereto, the public health council shall state
specific reasons for barring such transactions under this paragraph and
shall notify each party to the proposed transaction. Nothing in this
paragraph shall be construed as permitting a person not previously
approved by the public health council for that corporation to become the
owner of ten percent or more of the stock of a corporation which is the
operator of a hospital or which is a member of a limited liability
company which is the owner of a hospital without first obtaining the
approval of the public health council.
(d) No hospital shall be approved for establishment which would be
operated by a limited partnership, or by a partnership any of the
members of which are not natural persons.
(e) No hospital shall be approved for establishment which would be
operated by a corporation any of the stock of which is owned by another
corporation or a limited liability company if any of its corporate
members` stock is owned by another corporation.
(f) No corporation shall be a member of a limited liability company
authorized to operate a hospital unless its proposed incorporators,
directors, stockholders or principal stockholders shall have been
approved in accordance with the provisions of subdivision three of this
section applicable to the approval of the proposed incorporators,
directors or stockholders of any other corporation requiring approval
for establishment.
(g) A natural person appointed as trustee of an express testamentary
trust, created by a deceased sole proprietor, partner or shareholder in
the operation of a hospital for the benefit of a person of less than
twenty-five years of age, may, as the trustee, apply pursuant to
subdivision two of this section for approval to operate or participate
in the operation of a facility or interest therein which is included in
the corpus of such trust until such time as all beneficiaries attain the
age of twenty-five, unless the trust instrument provides for earlier
termination, or such beneficiaries receive establishment approval in
their own right, or until a transfer of the trust corpus is approved by
the public health council in accordance with this subdivision and
subdivisions two and three of this section, whichever first occurs. The
public health council shall not approve any such application unless it
is satisfied as to:
(i) the character, competence and standing in the community of each
proposed trustee operator pursuant to the provisions of paragraph (b) of
subdivision three of this section; and
(ii) the ability of the trustee under the terms of the trust
instrument to operate or participate in the operation of the hospital in
a manner consistent with this chapter and regulations promulgated
pursuant thereto.
(h) A natural person appointed conservator pursuant to article
eighty-one of the mental hygiene law, or a natural person appointed
committee of the property of an incompetent pursuant to article
eighty-one of the mental hygiene law or a sole proprietor, partner or
shareholder of a hospital, may apply pursuant to subdivision two of this
section for approval to operate a hospital owned by the conservatee or
incompetent for a period not exceeding two years or until a transfer of
the hospital is approved by the public health council in accordance with
subdivisions two and three of this section, whichever occurs first. The
public health council shall not approve any such application unless it
is satisfied as to:
(i) the character, competence and standing in the community of the
proposed conservator operator or committee operator pursuant to the
provisions of paragraph (b) of subdivision three of this section; and
(ii) the ability of the conservator or committee under the terms of
the court order to operate the hospital in a manner consistent with this
chapter and regulations promulgated pursuant thereto.
5. Except as otherwise hereinafter provided, no county, city, town,
village or other governmental subdivision shall establish or create any
agency concerned with the establishment of any hospital as defined in
this article without securing the written approval of the public health
council in accordance with the requirements and procedures of
subdivisions two and three of this section with respect to certificates
of incorporation, articles of organization and establishment, except
that the requirements relating to the proposed incorporators, directors
and sponsors shall not apply. The preceding shall not apply to the
establishment of state hospitals by the state of New York or to the
establishment of municipal hospitals by the city of New York.
6. No corporation having power to solicit contributions for charitable
purposes shall be deemed to have authority to solicit contributions for
any purpose for which the approval of the public health council is
required, unless the certificate of incorporation specifically makes
provision therefor, and the written approval of the public health
council is endorsed on or annexed to such certificate.
7. Where such approval has not been obtained the public health council
may institute and maintain an action in the supreme court through the
attorney general to procure a judgment dissolving and vacating or
annulling the certificate of incorporation of
(a) any such corporation, or
(b) any corporation hereafter incorporated, the name, purposes,
objects or the activities of which in any manner may lead to the belief
that the corporation possesses or may exercise any of such purposes.
8. No corporation heretofore formed, having among its powers the power
to solicit contributions for charitable purposes, may solicit or
continue to solicit contributions for a purpose for which the approval
of the public health council is required without the written approval of
the public health council, except a corporation which, prior to June
first, nineteen hundred seventy, had received the approval of the state
board of social welfare of a certificate of incorporation containing
such power. If such approval is not obtained and the corporation
continues to solicit or to receive contributions for such purpose or
advertises that it has obtained such approval, the public health council
may institute and maintain an action in the supreme court through the
attorney general to procure a judgment dissolving and vacating or
annulling the certificate of incorporation of any such corporation.
9. Only a natural person, a partnership or limited liability company
may hereafter undertake to engage in the business of operating or
conducting a hospital, as defined in this article, for profit, except
that: (a) a person, partnership or corporation which owned and was
operating a hospital on April fourth, nineteen hundred fifty-six, may
continue to own and operate such hospital; (b) a business corporation
may, with the approval of the public health council, and in accordance
with the provisions of subdivisions two and three of this section,
undertake to engage in the business of operating or conducting a
hospital, as defined in this article for profit, provided that such
corporation shall not discriminate because of race, color, creed,
national origin or sponsor in admission or retention of patients; (c) a
business corporation owning and operating a nursing home on May
twenty-second, nineteen hundred sixty-nine, in accordance with
applicable provisions of law, may continue to own and operate such
nursing home; (d) a person who, or a partnership which, is operating a
private proprietary nursing home in accordance with applicable
provisions of law may, with the approval of the public health council,
and in accordance with the provisions of subdivision three of this
section and any rules and regulations thereunder form a business
corporation to engage in the business of operating or conducting such
nursing home, provided, however, that such corporation shall not
discriminate because of race, color, creed, national origin or sponsor
in admission or retention of patients; (e) a business corporation
operating a nursing home, which corporation was formed with the approval
of the state board of social welfare, may continue to own and operate
such nursing home.
10. (a) The public health council, by a majority vote of its members,
shall adopt and amend rules and regulations, to effectuate the
provisions and purposes of this section, and to provide for the
revocation, limitation or annulment of approvals of establishment.
(b) (i) No approval of establishment shall be revoked, limited or
annulled without first offering the person who received such approval
the opportunity of requesting a public hearing. (ii) The commissioner,
at the request of the public health council, shall fix a time and place
for any such hearing requested. (iii) Notice of the time and place of
the hearing shall be served in person or mailed by registered mail to
the person who has received establishment approval at least twenty-one
days before the date fixed for the hearing. (iv) Such person shall file
with the department, not less than eight days prior to the hearing, a
written answer. (v) 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 mail of a copy of
such order or determination.
11. Any person filing a proposed certificate of incorporation,
articles of organization or an application for establishment of a
residential health care facility for approval of the public health
council shall file with the commissioner such information on the
ownership of the property interests in such facility as shall be
prescribed by regulation, including the following:
(a) The name and address and a description of the interest held by
each of the following persons:
(i) any person, who directly or indirectly, beneficially owns any
interest in the land on which the facility is located;
(ii) any person who, directly or indirectly, beneficially owns any
interest in the building in which the facility is located;
(iii) any person who, directly or indirectly, beneficially owns any
interest in any mortgage, note, deed of trust or other obligation
secured in whole or in part by the land on which or building in which
the facility is located; and
(iv) any person who, directly or indirectly, has any interest as
lessor or lessee in any lease or sub-lease of the land on which or the
building in which the facility is located.
(b) If any person named in response to paragraph (a) of this
subdivision is a partnership or limited liability company, then the name
and address of each partner or member.
(c) If any person named in response to paragraph (a) of this
subdivision is a corporation, other than a corporation whose shares are
traded on a national securities exchange or are regularly quoted in an
over-the-counter market or which is a commercial bank, savings bank or
savings and loan association, then the name and address of each officer,
director, stockholder and, if known, each principal stockholder and
controlling person of such corporation.
(d) If any corporation named in response to paragraph (a) of this
subdivision is a corporation whose shares are traded on a national
securities exchange or are regularly quoted in an over-the-counter
market or which is a commercial bank, savings bank or savings and loan
association, then the name and address of the principal executive
officers and each director and, if known, each principal stockholder of
such corporation.
12. The following definitions shall be applicable to this section:
(a) "Controlling person" of any corporation, partnership, limited
liability company or other entity means any person who by reason of a
direct or indirect ownership interest (whether of record or beneficial)
has the ability, acting either alone or in concert with others with
ownership or membership interests, to direct or cause the direction of
the management or policies of said corporation, partnership, limited
liability company or other entity. Neither the commissioner nor any
employee of the department nor any member of a local legislative body of
a county or municipality, nor any county or municipal official except
when acting as the administrator of a residential health care facility,
shall, by reason of his or her official position, be deemed a
controlling person of any corporation, partnership, limited liability
company or other entity, nor shall any person who serves as an officer,
administrator or other employee of any corporation, partnership, limited
liability company or other entity or as a member of a board of directors
or trustees of any corporation be deemed to be a controlling person of
such corporation, partnership, limited liability company or other entity
as a result of such position or his or her official actions in such
position.
(b) "Principal stockholder" of a corporation means any person who
beneficially owns, holds or has the power to vote, ten percent or more
of any class of securities issued by said corporation.
(c) "Principal member" of a limited liability company means any person
who beneficially owns, holds or has the power to vote, ten percent or
more interest determined by such member`s share in the current profits
of the limited liability company.
13. Any person who operates a hospital without the written approval of
the public health council shall be liable to the people of the state for
a civil penalty not to exceed ten thousand dollars for every such
violation.
14. (a) The public health council may approve the establishment of
not-for-profit rural health networks as defined in article twenty-nine-A
of this chapter, pursuant to the provisions of subdivisions two and
three of this section, except that the public health council shall not
consider the public need for and financial resources and sources of
future revenues of such networks which do not seek approval to operate a
hospital. In addition to character and competence, the public health
council may take into consideration available network plans.
(b) The board of directors or trustees of a not-for-profit rural
health network shall be comprised of a representative or representatives
of participating providers and members of the general public residing in
the area served by such network.
S 2801-b. Improper practices in hospital staff appointments and
extension of professional privileges prohibited. 1. It shall be an
improper practice for the governing body of a hospital to refuse to act
upon an application for staff membership or professional privileges or
to deny or withhold from a physician, podiatrist, optometrist or dentist
staff membership or professional privileges in a hospital, or to exclude
or expel a physician, podiatrist, optometrist or dentist from staff
membership in a hospital or curtail, terminate or diminish in any way a
physician`s, podiatrist`s, optometrist`s or dentist`s professional
privileges in a hospital, without stating the reasons therefor, or if
the reasons stated are unrelated to standards of patient care, patient
welfare, the objectives of the institution or the character or
competency of the applicant. It shall be an improper practice for a
governing body of a hospital to refuse to act upon an application or to
deny or to withhold staff membership or professional privileges to a
podiatrist based solely upon a practitioner`s category of licensure.
2. Any person claiming to be aggrieved by an improper practice as
defined in this section may, by himself or his attorney, make, sign and
file with the public health council a verified complaint in writing
which shall state the name and address of the hospital whose governing
body is alleged to have committed the improper practice complained of
and which shall set forth the particulars thereof and contain such other
information as may be required by the council.
3. After the filing of any such complaint, the public health council
shall make a prompt investigation in connection therewith. In conducting
such investigation, the public health council is authorized to receive
reports from the governing body of the hospital and the complainant, as
the case may be, and the furnishing of such information to the public
health council, or by the council to the governing body or complainant,
shall not subject any person or hospital to any action for damages or
other relief. Such information when received by the public health
council, or its authorized representative, shall be kept confidential
and shall be used solely for the purposes of this section and the
improvement of the standards of patient care and patient welfare. The
records of such proceedings shall not be admissible as evidence in any
other action of any kind in any court or before any other tribunal,
board, agency, or person. If the council shall determine after such
investigation that cause exists for crediting the allegations of the
complaint, the council shall promptly so advise the governing body of
the hospital against which the complaint was made, and shall direct that
such governing body make a review of the actions of such body in denying
or withholding staff membership or professional privileges from the
complainant physician, podiatrist, optometrist or dentist or in
excluding or expelling such physician, podiatrist, optometrist or
dentist from staff membership or in curtailing, terminating or in any
way diminishing such physician`s, podiatrist`s, optometrist`s or
dentist`s professional privileges in the hospital.
4. The provisions of this section shall not be deemed to impair or
affect any other right or remedy.
S 2801-c. Injunctions. The supreme court may enjoin violations or
threatened violations of any provisions of this article; and it may
enjoin violations of the regulations of the department adopted
thereunder. Upon request of the public health council or the
commissioner, the attorney general shall maintain an action in the
supreme court in the name of the people of the state to enjoin any such
violation. Notwithstanding any limitation of the civil practice law and
rules, such court may, on motion and affidavit, and upon proof that such
violation is one which reasonably may result in injury to any person,
whether or not such person is a party to such action, grant a temporary
injunction upon such terms as may be just, pending the determination of
the action. No security on the part of the people of this state shall be
required. In any action for injunction brought pursuant to this article,
any finding of the public health council or the commissioner or hearing
officer designated by either shall be prima facie evidence of the fact
or facts found therein.
S 2801-d. Private actions by patients of residential health care
facilities. 1. Any residential health care facility that deprives any
patient of said facility of any right or benefit, as hereinafter
defined, shall be liable to said patient for injuries suffered as a
result of said deprivation, except as hereinafter provided. For purposes
of this section a "right or benefit" of a patient of a residential
health care facility shall mean any right or benefit created or
established for the well-being of the patient by the terms of any
contract, by any state statute, code, rule or regulation or by any
applicable federal statute, code, rule or regulation, where
noncompliance by said facility with such statute, code, rule or
regulation has not been expessly authorized by the appropriate
governmental authority. No person who pleads and proves, as an
affirmative defense, that the facility exercised all care reasonably
necessary to prevent and limit the deprivation and injury for which
liability is asserted shall be liable under this section.
2. Upon a finding that a patient has been deprived of a right or
benefit and that said patient has been injured as a result of said
deprivation, and unless there is a finding that the facility exercised
all care reasonably necessary to prevent and limit the deprivation and
injury to the patient, compensatory damages shall be assessed in an
amount sufficient to compensate such patient for such injury, but in no
event less than twenty-five percent of the daily per-patient rate of
payment established for the residential health care facility under
section twenty-eight hundred seven of this article or, in the case of a
residential health care facility not having such an established rate,
the average daily total charges per patient for said facility, for each
day that such injury exists. In addition, where the deprivation of any
such right or benefit is found to have been willful or in reckless
disregard of the lawful rights of the patient, punitive damages may be
assessed.
3. A patient residing in a residential health care facility may also
maintain an action pursuant to this section for any other type of
relief, including injunctive and declaratory relief, permitted by law.
4. Any damages recoverable pursuant to this section, including minimum
damages as provided by subdivision two of this section, may be recovered
in any action which a court may authorize to be brought as a class
action pursuant to article nine of the civil practice law and rules. The
remedies provided in this section are in addition to and cumulative with
any other remedies available to a patient, at law or in equity or by
administrative proceedings. Exhaustion of any available administrative
remedies shall not be required prior to commencement of suit hereunder.
5. The amount of any damages recovered by a patient, in an action
brought pursuant to this section shall be exempt for purposes of
determining initial or continuing eligibility for medical assistance
under title eleven of article five of the social services law and shall
neither be taken into consideration nor required to be applied toward
the payment or part payment of the cost of medical care or services
available under said title eleven.
6. If judgment in an action maintained under this section is rendered
in favor of the plaintiff, in its discretion the court may, if justice
requires, award attorneys` fees to the plaintiff based on the reasonable
value of legal services rendered and payable by the defendant.
7. Any waiver by a patient or his legal representative of the right to
commence an action under this section, whether oral or in writing, shall
be null and void and without legal force or effect.
8. Any party to an action brought under this section shall be entitled
to a trial by jury and any waiver of the right to a trial by a jury,
whether oral or in writing, prior to the commencement of an action,
shall be null and void, and without legal force or effect.
9. No insurance premium or part thereof paid by any residential health
care facility which is attributable solely to insurance against
liability pursuant to this section shall be allowed as a reimbursable
cost for purposes of any proposed rate schedule for payments for
hospital or health-related service which the commissioner shall
determine and certify pursuant to section twenty-eight hundred seven of
this chapter.
10. a. No person shall discriminate against any patient of a
residential health care facility because such patient has brought or
caused to be brought any action pursuant to this section, or against any
patient or employee of a residential health care facility because such
patient or employee has given or provided or is to give or provide
testimony or other evidence for purposes of said action.
b. Any patient who has reason to believe that he or she may have been
discriminated against in violation of this subdivision may, within
thirty days after such alleged violation occurs, file a complaint with
the commissioner. The commissioner shall investigate any such complaint,
and shall, if such complaint is deemed meritorious, serve upon the
administrator of the subject facility, in his capacity as a
representative of the facility, either by personal service or by
certified mail addressed to the administrator in care of the facility,
return receipt requested, a complaint stating the substance of the
alleged discrimination with reasonable particularity. A hearing shall
be conducted in accordance with section twelve-a of this chapter within
thirty days of the service of such complaint. The hearing officer shall
make a report of his findings to the commissioner, who, if he determines
that a violation of this subdivision has occurred, may grant whatever
relief is necessary and appropriate to remedy the violation, including,
but not limited to readmittance of patients wrongfully discharged. Any
such order of the commissioner shall be appealable by a proceeding under
article seventy-eight of the civil practice law and rules.
c. Whenever the commissioner has issued an order as provided in this
subdivision he may apply to any court of competent jurisdiction for the
enforcement of such order.
d. Any action taken by the commissioner in accordance with the
provisions of this subdivision shall not be exclusive, and may be taken
in conjunction with an action for a civil penalty for a violation of
paragraph a of this subdivision, or any private civil action brought by
an injured party, or both.
e. Any employee who has reason to believe that he or she may have been
discriminated against in violation of this subdivision may bring a
proceeding in accordance with the provisions of article fifteen of the
executive law.
S 2802. Approval of construction. The construction of a hospital,
whether public or private, incorporated or not incorporated, shall
require the prior approval of the commissioner.
1. An application for such construction shall be filed with the
department, together with such other forms and information as shall be
prescribed by, or acceptable to, the department. Thereafter the
department shall forward a copy of the application and accompanying
documents to the state hospital review and planning council and the
health systems agency having geographical jurisdiction of the area where
the hospital is located.
2. The commissioner shall not act upon an application for construction
of a hospital until the state hospital review and planning council and
the health systems agency have had a reasonable time to submit their
recommendations, and unless (a) the applicant has obtained all approvals
and consents required by law for its incorporation or establishment
(including the approval of the public health council pursuant to the
provisions of this article) provided, however, that the commissioner may
act upon an application for construction by an applicant possessing a
valid operating certificate when the application qualifies for review
without the recommendation of the council pursuant to regulations
adopted by the council and approved by the commissioner; and (b) the
commissioner is satisfied as to the public need for the construction, at
the time and place and under the circumstances proposed, provided
however that, in the case of an application by a hospital established or
operated by an organization defined in subdivision one of section four
hundred eighty-two-a of the social services law, the needs of the
members of the religious denomination concerned, for care or treatment
in accordance with their religious or ethical convictions, shall be
deemed to be public need.
2-a. The council shall afford the applicant an opportunity to present
information in person concerning an application to a committee
designated by the council.
2-b. Beginning on January first, nineteen hundred ninety-four, and
each year thereafter, a complete application received between January
first and June thirtieth of each year shall be reviewed by the
appropriate health systems agency and the department and presented to
the state hospital review and planning council for its consideration
prior to June thirtieth of the following year and a complete application
received between July first and December thirty-first of each year shall
be reviewed by the appropriate health systems agency and the department
and presented to the state hospital review and planning council for
consideration prior to December thirty-first of the following year.
3. Subject to the provisions of paragraph (b) of subdivision two, the
commissioner in approving the construction of a hospital shall take into
consideration and be empowered to request information and advice as to
(a) the availability of facilities or services such as preadmission,
ambulatory or home care services which may serve as alternatives or
substitutes for the whole or any part of the proposed hospital
construction;
(b) the need for special equipment in view of existing utilization of
comparable equipment at the time and place and under the circumstances
proposed;
(c) the possible economies and improvements in service to be
anticipated from the operation of joint central services including, but
not limited to laboratory, research, radiology, pharmacy, laundry and
purchasing;
(d) the adequacy of financial resources and sources of future revenue;
and
(e) whether the facility is currently in substantial compliance with
all applicable codes, rules and regulations, provided, however, that the
commissioner shall not disapprove an application solely on the basis
that the facility is not currently in substantial compliance, if the
application is specifically:
(i) to correct life safety code or patient care deficiencies;
(ii) to correct deficiencies which are necessary to protect the life,
health, safety and welfare of facility patients, residents or staff;
(iii) for replacement of equipment that no longer meets the generally
accepted operational standards existing for such equipment at the time
it was acquired; and
(iv) for decertification of beds and services.
3-a. Review of applications from hospitals in epidemic areas and
hospitals serving state correctional facilities to renovate or provide
for capital improvement for the purpose of controlling the spread of
tuberculosis infection may be approved by the commissioner, who to the
extent practicable may, but shall not be required to, consider the
recommendations of the health systems agency and the state hospital
review and planning council for applications for which he grants
approval. In such cases the commissioner shall take further measures
necessary to expedite departmental reviews for such approval.
3-b. Review of applications from rural hospitals seeking approval in
the swing bed program, authorized pursuant to section twenty-eight
hundred three of this article, may be approved by the commissioner who,
to the extent practicable, may consider the recommendations of the
respective health systems agency. In such cases, the commissioner shall
take further measures necessary to expedite departmental reviews for
such approval.
3-c. An application shall state the proposed site or location of the
proposed construction. Where the applicant changes the site or location
after approval of the application, the commissioner may, subject to
regulations under this article, approve the change upon a finding that
the change is in the best interest of the service area. In making such
determination, the commissioner may seek a review of the proposed change
by the state hospital review and planning council and the health systems
agency having geographical jurisdiction.
4. No government agency shall construct any hospital without securing
the written approval of the commissioner in accordance with the
applicable requirements and procedures of the preceding subdivisions.
5. If the commissioner proposes to disapprove an application for
construction of a hospital, he shall afford the applicant an opportunity
to request a public hearing. The commissioner shall not take any action
contrary to the advice of the health systems agency until he affords an
opportunity to the agency to request a public hearing and, if so
requested, a public hearing shall be held.
6. The commissioner, on his own motion, may hold a public hearing on
an application for construction of a hospital.
7. The commissioner shall charge to applicants for construction of
hospitals the following fees and charges for administrative services so
as to recover departmental costs in performing these functions. Each
applicant for construction of a hospital shall pay to the department an
application fee of one thousand two hundred fifty dollars. At such time
as the commissioner`s written approval is granted, each applicant shall
pay an additional fee of forty-five hundredths of one percent of the
total capital value of the application, provided that only those
applications requiring review by the State Hospital Review and Planning
Council shall be subject to such fee. The fees and charges paid by an
applicant pursuant to this subdivision for any application for
construction of a hospital approved in accordance with this section
shall be deemed allowable capital costs in the determination of
reimbursement rates established pursuant to this article. The cost of
such fees and charges shall not be subject to reimbursement ceiling or
other penalties used by the commissioner for the purpose of establishing
reimbursement rates 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.
S 2803. Commissioner and council; powers and duties. 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.
(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.
(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.
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.
S 2803-a. Authority to contract. Hospitals, including hospitals
described in subdivision ten of section 1.03 of the mental hygiene law,
are hereby authorized, under such rules and regulations as the council
may authorize, to enter into contracts and make arrangements among
themselves and among other municipal, state, federal or privately owned
hospitals, or any medical schools, or other health related facilities
having or utilizing hospital services or facilities or voluntary
ambulance services registered or certified pursuant to article thirty of
the public health law or nutrition programs that receive federal, state
or local government funding, whether or not located in this state or
elsewhere, for the
1. mutual use, or exchange of medical resources including, but not
limited to, real or personal property or employment of personnel;
2. joint purchases of goods, supplies and services; or
3. development of medical information, techniques and facilities
useful in the progress of the medical art; reduction of medical costs
and promotion of a more efficient and effective approach to the delivery
of health care services.
Any contract between any such hospitals and such voluntary ambulance
services shall be limited to joint purchases of goods and supplies
necessary for the support of such ambulance services or otherwise used
by such hospitals.
S 2803-b. Uniform reports and accounting systems for hospital costs.
1. The council, after public hearings with respect to its proposed
systems of uniform hospital accounting and reporting, shall, by majority
vote of its members and subject to approval of the commissioner, adopt
and amend approved systems of uniform hospital accounting and reporting
which are designed to enable hospitals to fairly, accurately and
efficiently prepare the financial reports required by subdivision three
of this section. Existing systems of accounting and reporting used by
hospitals shall be examined and taken into consideration by the council
in carrying out its function pursuant to this section. The council shall
take such steps as are necessary to adopt the approved system of uniform
hospital accounting and reporting by January first, nineteen hundred
seventy-five.
2. The council, where appropriate to reflect differences in hospital
size and services or in the method of providing or paying for hospital
and related services, may allow for modifications in the accounting
systems approved pursuant to subdivision one of this section.
3. Every organization which operates, conducts or maintains a
hospital, and the officers thereof, shall furnish to the department with
respect to each licensed hospital operated, conducted or maintained by
the organization, within one hundred twenty days after the close of each
fiscal year commencing after the adoption of systems of uniform hospital
accounting and reporting approved under subdivision one of this section,
all of the following reports on forms specified by the council:
(a) A balance sheet detailing the assets, liabilities and net worth of
the hospital at the end of its fiscal year;
(b) A statement of income, expenses, and operating surplus or deficit
for the annual period ending on the balance sheet date;
(c) A statement detailing the source of application of all funds
expended by the hospital for the period encompassed by the income
statement required by paragraph (b) of this subdivision;
(d) A report of hospital expenditures which allocates the costs of
nonrevenue-producing departments of a hospital to the other
nonrevenue-and revenue-producing centers which they serve. This report
shall be accompanied by a sufficiently detailed statistical report
containing data describing the hospital`s basic services and patient
statistics which identifies costs related to categories of hospital
services delivered to patients by each department of the hospital, in
accordance with a list of such services required by the council pursuant
to subdivision one of this section.
4. The commissioner shall adopt forms of authentication for use by
hospital officers or licensed accountants preparing reports under this
section stating that each such officer or accountant making the
authentication believes that to the extent of his knowledge and
information each statement in the report is true.
5. The council shall report annually to the legislature and the
executive department no later than the fifteenth day of January,
developments under this section and methods currently in use to
implement the provisions of section twenty-eight hundred seven of this
article.
S 2803-c. Rights of patients in certain medical facilities. 1. The
principles enunciated in subdivision three hereof are declared to be the
public policy of the state and a copy of such statement of rights and
responsibilities shall be posted conspicuously in a public place in each
facility covered hereunder.
2. The commissioner shall require that every nursing home and facility
providing health related service, as defined in subdivision two and
paragraph (b) of subdivision four of section twenty-eight hundred one of
this article, shall adopt and make public a statement of the rights and
responsibilities of the patients who are receiving care in such
facilities, and shall treat such patients in accordance with the
provisions of such statement.
3. Said statement of rights and responsibilities shall include, but
not be limited to the following:
a. Every patient`s civil and religious liberties, including the right
to independent personal decisions and knowledge of available choices,
shall not be infringed and the facility shall encourage and assist in
the fullest possible exercise of these rights.
b. Every patient shall have the right to have private communications
and consultations with his or her physician, attorney, and any other
person.
c. Every patient shall have the right to present grievances on behalf
of himself or herself or others, to the facility`s staff or
administrator, to governmental officials, or to any other person without
fear of reprisal, and to join with other patients or individuals within
or outside of the facility to work for improvements in patient care.
d. Every patient shall have the right to manage his or her own
financial affairs, or to have at least a quarterly accounting of any
personal financial transactions undertaken in his or her behalf by the
facility during any period of time the patient has delegated such
responsibilities to the facility.
e. Every patient shall have the right to receive adequate and
appropriate medical care, to be fully informed of his or her medical
condition and proposed treatment unless medically contraindicated, and
to refuse medication and treatment after being fully informed of and
understanding the consequences of such actions.
f. Every patient shall have the right to have privacy in treatment and
in caring for personal needs, confidentiality in the treatment of
personal and medical records, and security in storing personal
possessions.
g. Every patient shall have the right to receive courteous, fair, and
respectful care and treatment and a written statement of the services
provided by the facility, including those required to be offered on an
as-needed basis.
h. Every patient shall be free from mental and physical abuse and from
physical and chemical restraints, except those restraints authorized in
writing by a physician for a specified and limited period of time or as
are necessitated by an emergency in which case the restraint may only be
applied by a qualified licensed nurse who shall set forth in writing the
circumstances requiring the use of restraint and in the case of use of a
chemical restraint a physician shall be consulted within twenty-four
hours.
i. A statement of the facility`s regulations and an explanation of the
patient`s responsibility to obey all reasonable regulations of the
facility and to respect the personal rights and private property of the
other patients.
j. A statement that should the patient be adjudicated incompetent and
not be restored to legal capacity, or if a conservator should be
appointed for the patient, the above rights and responsibilities shall
be exercised by the appointed committee or conservator in a
representative capacity.
k. Every patient shall have the right to receive upon request kosher
food or food products prepared in accordance with the Hebrew orthodox
religious requirements.
l. Pursuant to regulations promulgated by the commissioner, no
facility or individual and no general hospital providing medical care to
persons having been admitted from such facilities or from adult care
facilities covered by the provisions of section four hundred sixty-one-b
of the social services law, or to applicants for readmission to such
facilities or to adult care facilities covered by the provisions of
section four hundred sixty-one-b of the social services law, shall
restrict or prohibit the access to the facility or general hospital nor
interfere with the performance of the official duties, including
confidential visits with residents, of duly designated persons
participating in the long term care ombudsman program as provided for in
sections five hundred forty-four and five hundred forty-five of the
executive law.
m. Pursuant to regulations promulgated by the commissioner in
consultation with the director of the office for the aging, no facility
shall restrict or prohibit access by records access ombudsmen specially
designated under section five hundred forty-four of the executive law to
the medical or personal records of any patient or resident if such
patient or resident, or, where appropriate, committee for an
incompetent, has given express written consent to such disclosure;
provided, however, that (i) in the case of medical records, disclosure
may be exclusive of the personal notes of the physician as defined in
such regulations and (ii) access may be limited to such times as may be
specified in such regulations. Such records shall be made available by a
member or members of the facility`s staff who shall be designated by the
facility to provide access to and, where necessary, interpretation of
such records to such records access ombudsman, who shall have the right
to photocopy such records. The facility may charge a reasonable fee for
photocopying pursuant to such regulations. Disclosure to a records
access ombudsman of records of any patient or resident pursuant to the
written consent of such patient or resident shall not give rise to any
claim against the facility, its staff, or the patient`s or resident`s
physician based solely on the fact of such disclosure pursuant to such
written consent. Nothing in this paragraph shall be construed to limit
or abridge any right of access to records, including financial records,
otherwise available to ombudsmen, patients or residents, or any other
person.
n. Pursuant to regulations promulgated by the commissioner in
consultation with the director of the office for the aging, no facility
or individual shall retaliate or take reprisals against any resident,
employee, or other person for having filed a complaint with, or having
provided information to, any long term care patient ombudsman
functioning in accordance with section five hundred forty-four or five
hundred forty-five of the executive law, nor shall any facility or
individual interfere with the official duties of any such ombudsman.
Such regulations shall provide for appropriate sanctions with respect to
such retaliation, reprisals, or interference.
(o) 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 or resident`s ability to receive visitors.
p. A statement 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.
4. Each facility shall give a copy of the statement to each patient at
or prior to the time of admission to the facility, or to the appointed
personal representative at the time of appointment and to each member of
the facility`s staff.
5. Each facility shall prepare a written plan and provide appropriate
staff training to implement each patient`s right included in the
statement.
S 2803-d. Reporting abuses of persons receiving care or services in
residential health care facilities. 1. The following persons are
required to report in accordance with this section when they have
reasonable cause to believe that a person receiving care or services in
a residential health care facility has been physically abused,
mistreated or neglected by other than a person receiving care or
services in the facility: any operator or employee of such facility, any
person who, or employee of any corporation, partnership, organization or
other entity which, is under contract to provide patient care services
in such facility, and any nursing home administrator, physician, medical
examiner, coroner, physician`s associate, specialist`s assistant,
osteopath, chiropractor, physical therapist, occupational therapist,
registered professional nurse, licensed practical nurse, dentist,
podiatrist, optometrist, pharmacist, psychologist, certified social
worker, speech pathologist and audiologist.
2. In addition to those persons required to report suspected physical
abuse, mistreatment or neglect of persons receiving care or services in
residential health care facilities, any other person may make such a
report if he or she has reasonable cause to believe that a person
receiving care or services has been physically abused, mistreated or
neglected in the facility.
3. Reports of suspected physical abuse, mistreatment or neglect made
pursuant to this section shall be made immediately by telephone and in
writing within forty-eight hours to the department. Written reports
shall be made on forms supplied by the commissioner and shall include
the following information: the identity of the person making the report
and where he can be found; the name and address of the residential
health care facility; the names of the operator and administrator of the
facility, if known; the name of the subject of the alleged physical
abuse, mistreatment or neglect, if known; the nature and extent of the
physical abuse, mistreatment or neglect; the date, time and specific
location of the occurrence; the names of next of kin or sponsors of the
subject of the alleged physical abuse, mistreatment or neglect, if
known; and any other information which the person making the report
believes would be helpful to further the purposes of this section. Such
written reports shall be admissible in evidence, consistent with the
provisions of paragraph (f) of subdivision six of this section, in any
actions or proceedings relating to physical abuse, mistreatment or
neglect of persons receiving care or services in residential health care
facilities. Written reports made other than on forms supplied by the
commissioner which contain the information required herein shall be
treated as if made on such forms.
4. Any person who in good faith makes a report pursuant to this
section shall have immunity from any liability, civil or criminal, for
having made such a report. For the purpose of any proceeding, civil or
criminal, the good faith of any person required to report instances of
physical abuse, mistreatment or neglect of persons receiving care or
services in residential health care facilities shall be presumed.
5. Notwithstanding the provisions of section two hundred thirty of
this chapter, any licensed person who commits an act of physical abuse,
mistreatment or neglect of a person receiving care or services in a
residential health care facility and any licensed person required by
this section to report an instance of suspected physical abuse,
mistreatment or neglect of a person receiving care or services in a
residential health care facility who fails to do so shall be guilty of
unprofessional conduct in the practice of his or her profession.
6. (a) Upon receipt of a report made pursuant to this section, the
commissioner shall cause an investigation to be made of the allegations
contained in the report. Notification of the receipt of a report shall
be made immediately by the department to the appropriate district
attorney if a prior request in writing has been made to the department
by the district attorney. Prior to the completion of the investigation
by the department, every reasonable effort shall be made to notify,
personally or by certified mail, any person under investigation for
having committed an act of physical abuse, mistreatment or neglect. The
commissioner shall make a written determination, based on the findings
of the investigation, of whether or not sufficient credible evidence
exists to sustain the allegations contained in the report or would
support a conclusion that a person not named in such report has
committed an act of physical abuse, neglect or mistreatment. A copy of
such written determination, together with a notice of the right to a
hearing as provided in this subdivision, shall be sent by registered or
certified mail to each person who the commissioner has determined has
committed an act of physical abuse, neglect or mistreatment. A letter
shall be sent to any other person alleged in such report to have
committed such an act stating that a determination has been made that
there is not sufficient evidence to sustain the allegations relating to
such person. A copy of each such determination and letter shall be sent
to the facility in which the alleged incident occurred.
(b) The commissioner may make a written determination, based on the
findings of the investigation, that sufficient credible evidence exists
to support a conclusion that a person required by this section to report
suspected physical abuse, mistreatment or neglect had reasonable cause
to believe that such an incident occurred and failed to report such
incident. A copy of such written determination, together with a notice
of the right to a hearing as provided in this subdivision, shall be sent
by registered or certified mail to each person who the commissioner has
determined has failed to report as required by this section.
(c) All information relating to any allegation which the commissioner
has determined would not be sustained shall be expunged one hundred
twenty days following notification of such determination to the person
who made the report pursuant to this section, unless a proceeding
pertaining to such allegation is pending pursuant to article
seventy-eight of the civil practice law and rules. Whenever information
is expunged, the commissioner shall notify any official notified
pursuant to paragraph (a) of this subdivision that the information has
been expunged.
(d) At any time within thirty days of the receipt of a copy of a
determination made pursuant to this section, a person named in such
determination as having committed an act of physical abuse, neglect or
mistreatment, or as having failed to report such an incident, may
request in writing that the commissioner amend or expunge the record of
such report, to the extent such report applies to such person, or such
written determination. If the commissioner does not comply with such
request within thirty days, such person shall have the right to a fair
hearing to determine whether the record of the report or the written
determination should be amended or expunged on the grounds that the
record is inaccurate or the determination is not supported by the
evidence. The burden of proof in such hearing shall be on the
department. Whenever information is expunged, the commissioner shall
notify any official notified pursuant to paragraph (a) of this
subdivision that the information has been expunged.
(e) Except as hereinafter provided, any report, record of the
investigation of such report and all other information related to such
report shall be confidential and shall be exempt from disclosure under
article six of the public officers law.
(f) Information relating to a report made pursuant to this section
shall be disclosed under any of the following conditions:
(i) pursuant to article six of the public officers law after
expungement or amendment, if any, is made in accordance with a hearing
conducted pursuant to this section, or at least forty-five days after a
written determination is made by the commissioner concerning such
report, whichever is later; provided, however, that the identity of the
person who made the report, the victim, or any other person named,
except a person who the commissioner has determined committed an act of
physical abuse, neglect or mistreatment, shall not be disclosed unless
such person authorizes such disclosure;
(ii) as may be required by the penal law or any lawful order or
warrant issued pursuant to the criminal procedure law; or
(iii) to a person who has requested a hearing pursuant to this
section, information relating to the determination upon which the
hearing is to be conducted; provided, however, that the identity of the
person who made the report or any other person who provided information
in an investigation of the report shall not be disclosed unless such
person authorizes such disclosure.
(g) Where appropriate, the commissioner shall report instances of
physical abuse, mistreatment or neglect or the failure to report as
required by this section, to the appropriate committee on professional
conduct for the professions enumerated in subdivision one of this
section when a determination has been made after the commissioner has
provided an opportunity to be heard. The commissioner shall report
instances of physical abuse, mistreatment, neglect or misappropriation
of resident property by a nurse aide or other unlicensed individual and
any brief statement by the nurse aide or other unlicensed individual
disputing the finding to the nursing home nurse aide registry
established pursuant to section twenty-eight hundred three-j of this
article when a determination has been made after the commissioner has
provided an opportunity to be heard.
7. In addition to any other penalties prescribed by law, any person
who commits an act of physical abuse, neglect or mistreatment, or who
fails to report such an act as provided in this section, shall be deemed
to have violated this section and shall be liable for a penalty pursuant
to section twelve of this chapter after an opportunity to be heard
pursuant to this section.
8. No residential health care facility or officer or employee thereof
shall discharge or in any manner discriminate or retaliate against any
person in any residential health care facility, or any relative, or
sponsor thereof, or against any employee of the facility, or against any
other person because such person, relative, legal representative,
sponsor or employee has made, or is about to make, a report pursuant to
this section, or has testified, or is about to testify, in any
proceeding relating to physical abuse, mistreatment or neglect of a
person receiving care or services in a residential health care facility.
The supreme court may grant injunctive relief to any person subject to
such retaliation or discrimination. Any violation of this subdivision
shall be punishable pursuant to section twelve of this chapter.
9. No later than March fifteenth of every year the commissioner shall
prepare and transmit to the governor and the legislature a report on the
incidents of physical abuse, mistreatment and neglect of persons
receiving care or services in residential health care facilities. No
information concerning any individual or facility shall be disclosed in
a report made pursuant to this subdivision, or in any other report,
except information which would be available pursuant to article six of
the public officers law as provided in this section. Nothing in this
section shall be construed to prohibit the maintenance or disclosure of,
or require the expungement of, statistical data which would not reveal
the identity of any person or facility.
10. An investigation shall be made of each incident reported pursuant
to this section, but only the provisions of paragraphs (e) and (f) of
subdivision six, and subdivisions two, four, eight and nine shall apply
to physical abuse by persons receiving care or services in residential
health care facilities.
11. The commissioner shall adopt rules and regulations necessary to
implement this section.
* S 2803-e. Residential health care facilities; return and
redistribution of unused medication. 1. Notwithstanding any inconsistent
provision of law, rule or regulation to the contrary, the commissioner
is hereby authorized and directed to permit either a resident or
consultant pharmacist in a residential health care facility to return to
the pharmacy from which it was purchased any unused medication provided
that such medication is sealed in unopened, individually packaged units
and within the recommended period of shelf life, and provided that such
medication is not a controlled substance as defined in section
thirty-three hundred six of the public health law.
2. The pharmacy to which such medication as described in subdivision
one of this section is returned shall be permitted to receive, restock
and redistribute that medication.
3. The pharmacy to which such medication as described in subdivision
one of this section is returned shall be required to reimburse or credit
the purchaser of that medication for the unused medication that is
restocked and redistributed. No pharmacy shall be required to accept any
medication returned under subdivision one of this section.
4. Neither an individual patient or the state, if a patient is a
recipient of a state funded program, shall be charged for unused
medication which according to the provisions of this law is returned for
reimbursement or credit.
* NB There are 2 S 2803-e`s
* S 2803-e.* Reporting incidents of possible professional misconduct.
1. (a) Hospitals and other facilities approved pursuant to this article
shall make a report or cause a report to be made within thirty days of
the occurrence of any of the following: the suspension, restriction,
termination or curtailment of the training, employment, association or
professional privileges or the denial of the certification of completion
of training of an individual licensed pursuant to the provisions of
title eight of the education law or of a medical resident with such
facility for reasons related in any way to alleged mental or physical
impairment, incompetence, malpractice or misconduct or impairment of
patient safety or welfare; the voluntary or involuntary resignation or
withdrawal of association or of privileges with such facility to avoid
the imposition of disciplinary measures; or the receipt of information
which indicates that any professional licensee or medical resident has
been convicted of a crime; the denial of staff privileges to a physician
if the reasons stated for such denial are related to alleged mental or
physical impairment, incompetence, malpractice, misconduct or impairment
of patient safety or welfare.
(b) Hospitals and other facilities approved pursuant to this article
shall make a report or cause a report to be made within thirty days of
obtaining knowledge of any information which reasonably appears to show
that a physician is guilty of professional misconduct as defined in
section sixty-five hundred thirty or sixty-five hundred thirty-one of
the education law. A violation of this paragraph shall not be subject to
the provisions of section twelve-b of this chapter.
2. Reports of possible professional misconduct made pursuant to this
section shall be made in writing to the education department with
respect to all individuals licensed pursuant to title eight of the
education law except that such reports shall be made to the department
of health in the case of physicians, physician`s assistants and
specialist`s assistants. Written reports shall include the following
information:
(a) name, address, profession and license number of the individual;
(b) a description of the action taken by the hospital including the
reason for the action and the date thereof, or the nature of the action
or conduct which led to the resignation or withdrawal, and the date
thereof, stated with sufficient specificity to allow a reasonable person
to understand which of the reasons enumerated in subdivision one of this
section led to the action of the hospital or the resignation or
withdrawal of the individual, and, if the reason was an act or omission
of the individual, the particular act or omission;
(c) any criminal conviction of which the hospital has knowledge; and
(d) such other information as the education department or the
department of health shall require.
3. (a) Any report or information furnished to the education department
or department of health in accordance with the provisions of this
section shall be deemed a confidential communication and shall not be
subject to inspection or disclosure in any manner except upon formal
written request by a duly authorized public agency or pursuant to a
judicial subpoena issued in a pending action or proceeding.
(b) Any person, facility or corporation which makes a report pursuant
to this section in good faith and without malice shall have immunity
from any liability, civil or criminal, for having made such a report.
For the purpose of any proceeding, civil or criminal, the good faith of
any person required to make a report shall be presumed.
* NB There are 2 S 2803-e`s
S 2803-f. Respite projects. Residential health care facilities shall
be permitted, with the prior approval of the commissioner in
consultation with the director of the state office for the aging, to
participate in respite projects pursuant to section five hundred
thirty-six-f of the executive law. No person shall receive services
providing respite in a residential health care facility unless such
person is medically eligible for admission to such facility.
Reimbursement for services in a residential health care facility shall
be as provided in sections twenty-eight hundred seven and twenty-eight
hundred eight of this article for skilled nursing facility services or
health-related services. The commissioner, in consultation with the
director of the state office for the aging, shall promulgate rules and
regulations to implement the provisions of this section.
S 2803-g. Board of visitors in county owned residential health care
facility. 1. Each public residential health care facility owned by a
county may have a board of visitors consisting of at least seven
members. Members shall be appointed by the county executive of the
county in which the facility is located where the county charter or, in
the absence of such, county law provides that members of county boards,
commissions, authorities or agencies are to be appointed by such an
officer. Such appointments shall be made with the approval of the local
legislative body of that county. In those counties without a county
executive, appointments shall be made by the legislative body of the
county. A visitor may be removed by the county legislative body for
cause after notice and an opportunity for hearing on the charges.
2. Unless provided otherwise by local law, each board shall elect
annually one member to serve as president of the board and one member to
serve as secretary.
3. Visitors shall not receive compensation but may be reimbursed for
their actual expenses in connection with their service as visitors by
the facility they serve.
4. The board of visitors shall hold no less than six regular meetings
annually, but a greater number of regular meetings may be scheduled by
the board. The conditions under which special meetings may be called
shall be established by local law or in by-laws of the board. The board
may require the head administrator of the facility to submit a report at
each meeting. The board shall keep a record of its proceedings and
activities. A member of a board of visitors who has failed to attend
three consecutive meetings shall be considered to have vacated his
office unless the board has adopted rules to the contrary.
5. Upon the request of the head administrator of the facility or upon
the board`s initiative, the board shall consult, advise and work with
the director with respect to community relations, conditions at the
facility, preliminary plans for construction and alterations and
programs and activities of the facility.
6. The board or any member of the board may visit and inspect the
facility at any time without prior notice and may report on conditions
to the local legislative body or the county executive and the
commissioner of the New York state department of health. In addition,
the board shall insure that a member or a committee of members shall
inspect the facility once every three months without prior notice. A
member of a board of visitors who has failed to visit and inspect the
facility at least twice a year shall be considered to have vacated his
office unless otherwise ordered by the board.
7. The board shall have the power to investigate all charges against
the administrator of the facility, all cases of alleged patient abuse or
mistreatment, and any other complaint filed against the facility. The
board shall receive from the facility copies of all accident reports and
any reports of abuse or neglect involving patients of the facility. The
board or any member of the board shall have the right to examine any
books or papers of the facility at anytime, except that access to
patient medical records shall be with the written consent of the patient
or his legal representative. Unless provided otherwise by local law, the
board shall have the power, in accordance with the civil practice law
and rules, to require the production of any books or papers deemed
relevant to the investigation. The board or a member may include in the
report of their investigation or separately at any time, any matter
pertaining to the management and affairs of the facility and may make
recommendations to the county executive, or in the absence of such, the
county legislative body and to the commissioner.
8. Once each year, the board shall make an independent assessment of
conditions at the facility and shall submit a report on the assessment
and recommendations to the commissioner and to the county executive, or
in the absence of such, the county legislative body.
9. The county executive or the local legislative body shall notify the
board of visitors of a residential health care facility of the proposed
appointment of a head administrator to such facility with a request that
the board report an expression of its opinion of the appointment and, if
it objects thereto, the reasons for such an objection.
10. The board may establish by-laws which shall be available for
public inspection at the facility and the office of the county attorney.
11. Members of the board of visitors shall be considered officers of
the county by which they are compensated for purposes of section four
hundred nine of the county law. The county legislative body shall
establish a code of ethics for the members of such board, including but
not limited to provisions on conflict of interest and course of conduct.
S 2803-h. Health related facility; pet therapy programs.
Notwithstanding any inconsistent provision of law, rule or regulation to
the contrary, and subject to the approval of the commissioner, every
residential health care facility, as defined in section twenty-eight
hundred one of this article, may, at the discretion of such facility,
board animals in such facility where such boarding would, in the
determination of the commissioner and such facility, tend to promote the
general well-being of the residents of such facility. The commissioner
shall adopt rules and regulations necessary to implement the provisions
of this section.
S 2803-i. General hospital inpatient discharge review program. 1. A
general hospital inpatient discharge review program applicable to all
patients other than beneficiaries of title XVIII of the federal social
security act (medicare) shall be established in accordance with this
section. No general hospital inpatient subject to the provisions of this
section may be discharged on the basis that inpatient hospital service
in a general hospital is no longer medically necessary and that an
appropriate discharge plan has been established unless a written notice
of such determinations and a copy of the discharge plan have been
provided to the patient or the appointed personal representative of the
patient. The patient or the appointed personal representative of the
patient shall have the opportunity to sign the notice and a copy of the
discharge plan and receive a copy of both signed documents. Every
general hospital shall use a common notice developed and disseminated in
accordance with rules and regulations adopted by the council and
approved by the commissioner which shall indicate that the patient is to
be discharged, shall state the reasons therefor and shall state that the
patient may request a review of such determinations. The patient, or the
appointed personal representative of the patient may request a review of
such determinations by the appropriate independent professional review
agent (or "review agent") in accordance with subdivision four of this
section. Notwithstanding that the patient discharge review process
provided in accordance with federal law and regulation shall apply to
beneficiaries of title XVIII of the federal social security act
(medicare), a written copy of the discharge plan, and discharge notice
shall be provided to the beneficiary or the appointed personal
representative of the beneficiary. The beneficiary or the appointed
personal representative of the beneficiary shall have the opportunity to
sign the documents and receive a copy of the signed documents.
2. (a) For patients eligible for payments by state governmental
agencies for general hospital inpatient services as the patient`s
primary payor, an independent professional review agent shall mean the
commissioner or his designee. In conducting general hospital inpatient
discharge reviews in accordance with this section, the commissioner may
utilize the services of department personnel or other authorized
representatives, including a review agent approved in accordance with
paragraph (b) of this subdivision.
(b) For patients who are not beneficiaries of title XVIII of the
federal social security act (medicare) nor eligible for payments by
state governmental agencies as the patient`s primary payor, an
independent professional review agent shall mean a third party payor of
hospital services or other corporation approved by the commissioner in
writing for purposes of conducting general hospital inpatient discharge
reviews in accordance with this section. For a third party payor of
hospital services or other corporation to be approved as an independent
professional review agent in accordance with this paragraph, such third
party payor or other corporation must meet the following criteria: (i)
the review agent shall employ or otherwise secure the services of
adequate medical personnel qualified to determine the necessity of
continued inpatient hospital services and the appropriateness of
hospital discharge plans; (ii) the review agent shall demonstrate the
ability to render review decisions in a timely manner as provided in
this section; (iii) the review agent shall agree to provide ready access
by the commissioner to all data, records and information it collects and
maintains concerning its review activities under this section; (iv) the
review agent shall agree to provide to the commissioner such data,
information and reports as the commissioner determines necessary to
evaluate the review process provided pursuant to this section; (v) the
review agent shall provide assurances that review personnel shall not
have a conflict of interest in conducting a discharge review for a
patient based on hospital or professional affiliation; and (vi) the
review agent meets such other performance and efficiency criteria
regarding the conduct of reviews pursuant to this section established by
the commissioner. The commissioner may withdraw approval of an
independent professional review agent where such review agent fails to
continue to meet approval criteria established pursuant to this
paragraph.
(c) (i) Each general hospital shall enter into contracts with one or
more independent professional review agents approved by the commissioner
in accordance with paragraph (b) of this subdivision for purposes of
conducting general hospital inpatient discharge reviews in accordance
with this section for patients, including uncompensated care patients,
who are not beneficiaries of title XVIII of the federal social security
act (medicare) nor eligible for payments by state governmental agencies
as the patients` primary payor; provided, however, a payor of hospital
service included in the payor categories specified in paragraph (a) of
subdivision one of section twenty-eight hundred seven-c of this article,
other than state governmental agencies, may designate the review agent
for their subscribers or beneficiaries or enrolled members and shall
reimburse such designated review agent for costs of the discharge review
program.
(ii) Notwithstanding any inconsistent provision of law, general
hospital contract costs incurred in accordance with subparagraph (i) of
this paragraph may be included as an additional charge for general
hospital inpatient services in determining patient charges for payors
included in the payor categories specified in paragraph (c) of
subdivision one of section twenty-eight hundred seven-c of this article,
or as a charge in addition to rates of payment for general hospital
inpatient services in determining payment due for payors included in the
payor categories specified in paragraph (b) of subdivision one of
section twenty-eight hundred seven-c of this article, or paragraph (a)
of such subdivision one if a payor has not designated a review agent for
such payor`s subscribers or beneficiaries or enrolled members, or
paragraph (a) or (b) of subdivision two of section twenty-eight hundred
seven-c of this article. Such additional charges shall not be subject to
maximum charge or rate of payment ceilings determined in accordance with
section twenty-eight hundred seven-c of this article for such payors.
3. (a) If a general hospital and the attending physician agree that
inpatient hospital service in a general hospital is no longer medically
necessary for a patient, other than a beneficiary of title XVIII of the
federal social security act (medicare), and an appropriate discharge
plan has been established for such patient, at that time the hospital
shall provide the patient or the appointed personal representative of
the patient with a written discharge notice and a copy of the discharge
plan, meeting the requirements of subdivision one of this section.
(b) If a general hospital has determined that inpatient hospital
service in a general hospital is no longer medically necessary for a
patient, other than a beneficiary of title XVIII of the federal social
security act (medicare)