NY State Senate Bill 2009-S3968

Senate Bill S3968

2009-2010 Legislative Session

Requires commissioner of health to make certain findings concerning access to health care services as condition of approving certain applications

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Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to health
Apr 07, 2009	referred to health

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2009-S3968 (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §§2801-a, 2802 & 2904, add §2801-g, Pub Health L

2009-S3968 (ACTIVE) - Summary

Requires health commissioner to make certain findings concerning access to health care services as a prerequisite to approving applications for establishment, incorporation or construction of certain health care facilities (i.e., that is will not result in the reduction or elimination of a health care service, including the relocation of a facility or service, in the affected community; or that it will result in the reduction or elimination of a health care service necessary to provide comprehensive health care, including the relocation of a facility or service, but the need for the service will continue to be met in the affected community); makes related provisions.

2009-S3968 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3968              REVISED 05/07/09

 TITLE OF BILL :
An act to amend the public health law, in relation to the preservation
of access to health care services


 PURPOSE :
To assure that access to needed health care services within a
geographic area is not diminished as a result of approval of
applications for hospital establishment, incorporation, or
construction.

 SUMMARY OF PROVISIONS :
Section 1 amends section 2801-a of the .Public Health Law to require
that public need determinations by the Public Health Council,
regarding applications for the establishment or incorporation of
hospitals, to be made in a manner consistent with Section 4 of this
act. Section 2 amends section 2802 of the Public Health Law to require
that public need determinations by the Commissioner of Health,
regarding hospital certificate of need applications, be made in
accordance with Section 4 of this act.  Section 3 amends section
2904(e) of the Public Health Law to require that public need
determinations made by the State Hospital Review and Planning Council,
regarding recommendations for the approval or disapproval of
applications for hospital establishment, incorporation, or

construction, be made in accordance with Section 4 of this act.
Section 4 adds a new section 2801-0 to the Public Health Law entitled
"Preservation of Access to Health Care Services." This new section
provides that:  prior to action on an application for hospital
establishment, incorporation or construction, the Commissioner of
Health make an affirmative finding that an application will not result
in: (a) a reduction or elimination of a health care service in a
community; or, (b) unmet need for a health care service in an affected
community; and, set forth standards, consistent with existing public
need determination criteria, which the Commissioner of Health must
consider in making a finding regarding the impact of an application on
the continued availability of a health care service in an affected
community. Section 5 provides for the effective date (immediately).

 EXISTING LAW :
Requires that prior to the approval of an application for hospital
establishment or incorporation the Public Health Council must be
satisfied as to the public need for the facility as proposed by the
applicant. PBH 2801-a(3). Sets forth the factors and standards for
determinations of public need pursuant to PBH 2801-a(3) including,
with regard to applications that involve the elimination or relocation
of a service, the extent to which need for a health service will
continue to be met.  10 NYCRR 670. Requires that prior to the approval
of an application for hospital construction the Commissioner of Health
must be satisfied as to the public need for the facility as proposed
by the application. PBH 2802 (b). Sets forth standards and factors for
determinations of public need in accordance with PBH 2802 similar to
those contained in 10 NYCRR 670. 10 NYCRR 709. Provides that the State
Hospital Review and Planning Council shall consider and advise
relative to applications for establishment, incorporation or
construction under Article 28 of the Public Health Law. PBH 2904(e).

 JUSTIFICATION :
When hospitals merge or affiliate, it is important to ensure that
services can be maintained at an adequate and appropriate level in a
given community.  This legislation seeks to endure a broad review of
substantive issues involved in such circumstances and a finding that
the services will not be reduced or eliminated without appropriate
cause.

 LEGISLATIVE HISTORY :
03/07/07 REFERRED TO HEALTH
01/09/08 REFERRED TO HEALTH

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect immediately and shall apply to any
determination of public need under section 2801-a or 2802 of the
public health law made on or after the effective date of this act.

2009-S3968 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3968

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 7, 2009
                               ___________

Introduced  by  Sen.  OPPENHEIMER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Health

AN ACT to amend the public health law, in relation to  the  preservation
  of access to health care services

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 3 of section 2801-a of the public  health  law,
as  amended  by  chapter  667 of the laws of 1997, is amended to read as
follows:
  3. The public health council shall not approve a certificate of incor-
poration, articles of  organization  or  application  for  establishment
unless  it  is  satisfied,  insofar  as applicable, as to (a) the public
need, DETERMINED IN ACCORDANCE WITH SECTION TWENTY-EIGHT  HUNDRED  ONE-G
OF  THIS  ARTICLE,  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09263-01-9

S. 3968                             2

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 substantial-
ly consistent high level of care is being or was being rendered in  each
such hospital, home, residence, halfway house, hostel, or other residen-
tial  facility  or  institution  with which such person is or was affil-
iated; 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 substantial-
ly 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.
  S  2.  Subdivision  2  of  section  2802  of the public health law, as
amended by chapter 609 of the laws  of  1982,  is  amended  to  read  as
follows:
  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, DETERMINED IN ACCORD-
ANCE WITH SECTION TWENTY-EIGHT HUNDRED ONE-G OF THIS  ARTICLE,  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 subdivi-
sion one of section [four hundred eighty-two-a of the  social  services]
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.
  S  3.  Subdivision  (e)  of  section 2904 of the public health law, as
amended by chapter 795 of the laws  of  1992,  is  amended  to  read  as
follows:
  (e)  The council, in cooperation with the various health systems agen-
cies shall consider and advise in accordance with the provisions of this
chapter relative to applications for the incorporation or  establishment
of  a  new  institution  and  the provisions of this chapter relative to
applications for the construction of a hospital as  defined  in  article
twenty-eight  of  this  chapter. The state council shall consult with or
otherwise obtain the advice of the health systems agency of the area  in
which  the  institution is located or the health systems agency of areas

S. 3968                             3

that might be substantially affected by the  application.  At  the  time
members of the council are notified that an application is scheduled for
consideration,  the  applicant and the health systems agency shall be so
notified in writing.  Before taking any action contrary to the advice of
the  health systems agency involved, the state council shall afford them
an opportunity to request a public hearing in which each such agency and
the applicant shall have the right to  participate;  provided,  however,
that  the  council  may  take  action  without  the advice of the health
systems agency whenever such agency has not submitted such advice within
the time period applicable to the review of such application.  RECOMMEN-
DATIONS OF THE COUNCIL FOR THE APPROVAL OR DISAPPROVAL OF AN APPLICATION
FOR INCORPORATION OR ESTABLISHMENT OR AN  APPLICATION  FOR  CONSTRUCTION
WHICH INVOLVE A DETERMINATION OF PUBLIC NEED SHALL BE MADE IN ACCORDANCE
WITH SECTION TWENTY-EIGHT HUNDRED ONE-G OF THIS CHAPTER.
  S  4.  The public health law is amended by adding a new section 2801-g
to read as follows:
  S 2801-G. PRESERVATION OF ACCESS TO HEALTH CARE SERVICES. 1. AN APPLI-
CATION FOR ESTABLISHMENT, INCORPORATION OR  CONSTRUCTION  UNDER  SECTION
TWENTY-EIGHT  HUNDRED  ONE-A OR TWENTY-EIGHT HUNDRED TWO OF THIS ARTICLE
SHALL NOT BE APPROVED UNLESS THE COMMISSIONER AFFIRMATIVELY FINDS THAT:
  (A) IT WILL NOT RESULT IN THE REDUCTION OR  ELIMINATION  OF  A  HEALTH
CARE  SERVICE, INCLUDING THE RELOCATION OF A FACILITY OR SERVICE, IN THE
AFFECTED COMMUNITY; OR
  (B) IT WILL RESULT IN THE REDUCTION OR ELIMINATION OF  A  HEALTH  CARE
SERVICE  NECESSARY  TO  PROVIDE COMPREHENSIVE HEALTH CARE, INCLUDING THE
RELOCATION OF A FACILITY OR SERVICE, BUT THE NEED FOR THE  SERVICE  WILL
CONTINUE TO BE MET IN THE AFFECTED COMMUNITY.
  2.  IN  MAKING  A  FINDING  UNDER SUBDIVISION ONE OF THIS SECTION, THE
COMMISSIONER SHALL CONSIDER:
  (A) CURRENT UTILIZATION PATTERNS FOR THE AFFECTED SERVICES;
  (B) GEOGRAPHIC ACCESSIBILITY OF PROPOSED ALTERNATIVE SERVICE SITES;
  (C) THE EXTENT TO WHICH THE APPLICANT WILL PROVIDE TIMELY REFERRALS TO
ALTERNATE SERVICE SITES THAT ASSURE ACCESS APPROPRIATE TO THE  PATIENT'S
NEEDS FOR COMPREHENSIVE HEALTH CARE;
  (D)  THE  FINANCIAL  VIABILITY  OF  ANY  ALTERNATIVE SERVICE SITE WITH
RESPECT TO CONTINUED PROVISION OF THE AFFECTED SERVICE; AND
  (E) THE EFFECT OF THE REDUCTION,  ELIMINATION  OR  RELOCATION  OF  THE
PROPOSED  SERVICE  OR  FACILITY  ON  THE  ABILITY OF LOW INCOME PERSONS,
RACIAL AND ETHNIC MINORITIES, WOMEN, PERSONS WITH DISABILITIES AND OTHER
UNDERSERVED GROUPS AND THE ELDERLY TO OBTAIN NEEDED HEALTH CARE.
  S 5. This act shall take effect immediately and  shall  apply  to  any
determination  of public need under section 2801-a or 2802 of the public
health law made on or after the effective date of this act.

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Senate Bill S3968

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Suzi Oppenheimer