S T A T E   O F   N E W   Y O R K
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                                  1750

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             January 9, 2009
                               ___________

Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
  Committee on Health

AN ACT to amend the public health law, in relation to site selection  of
  a hospice residence

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

  Section 1. The public health law is amended by adding  a  new  section
4014-a to read as follows:
  S  4014-A. HOSPICE RESIDENCES; SITE SELECTION.  1. FOR THE PURPOSES OF
THIS SECTION, "MUNICIPALITY" MEANS A VILLAGE; A TOWN,  WITH  RESPECT  TO
ANY  LOCATION  THAT IS IN A TOWN BUT NOT IN A VILLAGE IN THAT TOWN; OR A
CITY, EXCEPT THAT IN THE CITY OF NEW  YORK,  THE  COMMUNITY  BOARD  WITH
JURISDICTION OVER A LOCATION SHALL BE CONSIDERED THE MUNICIPALITY.
  2.  IF  A  HOSPICE  INTENDS  TO ESTABLISH A HOSPICE RESIDENCE WITHIN A
MUNICIPALITY BUT DOES NOT HAVE A SPECIFIC SITE SELECTED, IT  MAY  NOTIFY
THE  CHIEF EXECUTIVE OFFICER OF THE MUNICIPALITY AND THE COMMISSIONER IN
WRITING OF ITS INTENTIONS AND INCLUDE IN THE NOTICE A DESCRIPTION OF THE
NATURE AND SIZE OF THE PROGRAM, INCLUDING THE INTENDED NUMBER  OF  BEDS.
THIS SUBDIVISION SHALL NOT PRECLUDE THE ESTABLISHMENT OF A HOSPICE RESI-
DENCE UNDER SUBDIVISION THREE OF THIS SECTION.
  3.  (A) IF A HOSPICE INTENDS TO ESTABLISH A HOSPICE RESIDENCE WITHIN A
MUNICIPALITY AND HAS A SPECIFIC SITE SELECTED, IT SHALL NOTIFY THE CHIEF
EXECUTIVE OFFICER OF THE MUNICIPALITY AND THE  COMMISSIONER  IN  WRITING
AND  INCLUDE  IN  THE NOTICE A DESCRIPTION OF THE NATURE AND SIZE OF THE
PROGRAM, INCLUDING THE ADDRESS OF THE SITE AND THE  INTENDED  NUMBER  OF
BEDS.  THE  MUNICIPALITY  SHALL HAVE FORTY DAYS AFTER THE RECEIPT OF THE
NOTICE TO:
  (I) APPROVE THE SITE SELECTED BY THE HOSPICE;
  (II) SUGGEST ONE OR MORE ALTERNATIVE SUITABLE SITES WITHIN ITS  JURIS-
DICTION WHICH COULD ACCOMMODATE SUCH A FACILITY AND ARE PREFERRED BY THE
MUNICIPALITY; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01119-01-9
              

A. 1750                             2

  (III)  OBJECT TO THE ESTABLISHMENT OF A HOSPICE RESIDENCE BECAUSE SUCH
ESTABLISHMENT MAY RESULT IN THE OVERSATURATION OF THE MUNICIPALITY  WITH
RESIDENTIAL  FACILITIES  LICENSED  OR OPERATED BY STATE OR LOCAL GOVERN-
MENT, INCLUDING  COMMUNITY  RESIDENCES,  INTERMEDIATE  CARE  FACILITIES,
RESIDENTIAL CARE FACILITIES FOR ADULTS AND RESIDENTIAL TREATMENT FACILI-
TIES  FOR  INDIVIDUALS WITH MENTAL ILLNESS OR DEVELOPMENTAL DISABILITIES
AND ALL SIMILAR RESIDENTIAL FACILITIES, NOTWITHSTANDING  THE  UNIQUENESS
OF  BOTH  THE POPULATION SERVED AND THE SERVICES PROVIDED AT THE HOSPICE
RESIDENCE AND THE NEED FOR THE HOSPICE RESIDENCE IN THE MUNICIPALITY.
  (B) THE MUNICIPALITY SHALL SEND WRITTEN NOTICE  OF  ITS  DETERMINATION
UNDER  PARAGRAPH  (A) OF THIS SUBDIVISION TO THE HOSPICE AND THE COMMIS-
SIONER.  IF THE MUNICIPALITY DOES NOT MAKE A  DETERMINATION  WITHIN  THE
FORTY  DAYS,  THE PROPOSED HOSPICE RESIDENCE SHALL BE DEEMED APPROVED BY
THE MUNICIPALITY FOR PURPOSES OF THIS SECTION.
  (C) PRIOR TO MAKING A DETERMINATION UNDER PARAGRAPH (A) OF THIS SUBDI-
VISION, THE MUNICIPALITY MAY HOLD A PUBLIC HEARING.
  (D) (I) IF THE MUNICIPALITY APPROVES THE SITE PROPOSED BY THE HOSPICE,
THE HOSPICE MAY, FOR PURPOSES OF THIS SECTION,  ESTABLISH  THE  PROPOSED
HOSPICE RESIDENCE AT THE SITE.
  (II) IF AN ALTERNATIVE SITE OR SITES SUGGESTED BY THE MUNICIPALITY ARE
ACCEPTABLE  TO  THE  HOSPICE,  THE  HOSPICE  MAY,  FOR  PURPOSES OF THIS
SECTION, ESTABLISH THE PROPOSED HOSPICE RESIDENCE AT ONE OF THE ALTERNA-
TIVE SITES.
  (III) IF NONE OF THE ALTERNATIVE SITES SUGGESTED BY  THE  MUNICIPALITY
IS  ACCEPTABLE  TO  THE  HOSPICE,  THE HOSPICE MAY SO NOTIFY THE MUNICI-
PALITY, WHICH SHALL HAVE FIFTEEN DAYS AFTER RECEIPT  OF  THE  NOTICE  TO
SUGGEST AN ALTERNATIVE SITE OR SITES FOR THE PROPOSED HOSPICE RESIDENCE.
  (IV)  IF  THE MUNICIPALITY OBJECTS TO ESTABLISHMENT OF A HOSPICE RESI-
DENCE IN THE MUNICIPALITY UNDER SUBPARAGRAPH (III) OF PARAGRAPH  (A)  OF
THIS  SUBDIVISION,  OR THE HOSPICE DOES NOT ACCEPT ANY SITE SUGGESTED BY
THE MUNICIPALITY, AND THE MUNICIPALITY AND THE HOSPICE CANNOT AGREE ON A
SITE, THEN EITHER THE HOSPICE OR THE MUNICIPALITY MAY REQUEST AN IMMEDI-
ATE HEARING BEFORE THE COMMISSIONER OR THE COMMISSIONER'S  DESIGNEE.  IN
REVIEWING  ANY  SUCH OBJECTIONS, THE NEED FOR A HOSPICE RESIDENCE IN THE
MUNICIPALITY SHALL BE CONSIDERED AS SHALL THE EXISTING CONCENTRATION  OF
RESIDENTIAL  FACILITIES  AND  OTHER SIMILAR FACILITIES LICENSED BY OTHER
STATE AGENCIES IN THE MUNICIPALITY OR IN THE AREA IN  PROXIMITY  TO  THE
SITE  SELECTED  AND  ANY  OTHER FACILITIES IN THE MUNICIPALITY OR IN THE
AREA IN PROXIMITY TO THE SITE SELECTED.  THE COMMISSIONER SHALL  SUSTAIN
THE  OBJECTION  IF HE OR SHE DETERMINES THAT THE NATURE AND CHARACTER OF
THE AREA IN WHICH THE FACILITY IS  TO  BE  BASED  MAY  BE  SUBSTANTIALLY
ALTERED  AS  A  RESULT  OF  ESTABLISHMENT  OF  THE HOSPICE RESIDENCE, OR
APPROVE THE ESTABLISHMENT OF THE  PROPOSED  HOSPICE  RESIDENCE  FOR  THE
PURPOSES  OF  THIS  SECTION. THE COMMISSIONER SHALL MAKE A DETERMINATION
WITHIN THIRTY DAYS OF THE HEARING.
  4. A DECISION BY THE COMMISSIONER UNDER THIS SECTION MAY  BE  REVIEWED
IN  A PROCEEDING PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE
LAW AND RULES.
  5. THE DEPARTMENT SHALL  NOT  ISSUE  AN  OPERATING  CERTIFICATE  TO  A
HOSPICE  FOR  OPERATION  OF  A HOSPICE RESIDENCE IF THE HOSPICE DOES NOT
NOTIFY THE MUNICIPALITY OF ITS INTENTION TO ESTABLISH THE HOSPICE  RESI-
DENCE  AS  REQUIRED  BY SUBDIVISION THREE OF THIS SECTION. ANY OPERATING
CERTIFICATE ISSUED WITHOUT COMPLIANCE WITH THIS SECTION SHALL BE CONSID-
ERED NULL AND VOID AND  CONTINUED  OPERATION  OF  THE  FACILITY  MAY  BE
ENJOINED.

A. 1750                             3

  6.  THIS  SECTION  SHALL  NOT  APPLY TO THE ESTABLISHMENT OF A HOSPICE
RESIDENCE WITHIN AN ESTABLISHED FACILITY SUCH AS, BUT NOT LIMITED TO,  A
NURSING HOME OR ADULT HOME.
  7.  A HOSPICE RESIDENCE APPROVED FOR PURPOSES OF THIS SECTION SHALL BE
DEEMED A FAMILY UNIT, FOR THE PURPOSES OF LOCAL LAWS AND ORDINANCES.
  S 2. This act shall take effect immediately.