S T A T E O F N E W Y O R K
________________________________________________________________________
5805
2009-2010 Regular Sessions
I N A S S E M B L Y
February 20, 2009
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee 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.
LBD09263-02-9
A. 5805 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
A. 5805 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) APPROVING THE APPLICATION WILL NOT 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, IN THE
AFFECTED COMMUNITY; OR,
(B) APPROVING THE APPLICATION WILL RESULT IN THE REDUCTION OR ELIMI-
NATION 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;
OR,
(C) APPROVING THE APPLICATION IS THE ONLY FEASIBLE WAY TO AVOID A MORE
SUBSTANTIAL REDUCTION IN, OR ELIMINATION OF, HEALTH CARE SERVICE MORE
ESSENTIAL TO THE PROVISION OF COMPREHENSIVE HEALTH CARE IN THE AFFECTED
COMMUNITY; OR,
(D) THE REDUCTION OR ELIMINATION OF THE HEALTH CARE SERVICE NECESSARY
TO PROVIDE COMPREHENSIVE HEALTH CARE IN THE AFFECTED AREA IS REASONABLY
NECESSARY BECAUSE SUBSTANTIAL REDUCTIONS IN LEVELS OF USE OF THE SERVICE
ARE INCONSISTENT WITH REASONABLY MAINTAINING RECOGNIZED STANDARDS OF
CARE.
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.