S T A T E O F N E W Y O R K
________________________________________________________________________
4641
2019-2020 Regular Sessions
I N A S S E M B L Y
February 4, 2019
___________
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 section 57 of part A of chapter 58 of the laws of 2010, is
amended to read as follows:
3. The public health and health planning 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, DETERMINED IN ACCORDANCE WITH SECTION TWENTY-EIGHT
HUNDRED ONE-H 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 accord-
ance with their religious or ethical convictions, shall be deemed to be
public need; (b) the character, competence, and standing in the communi-
ty, of the proposed incorporators, directors, sponsors, stockholders,
members or operators; with respect to any proposed incorporator, direc-
tor, 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 certif-
icate 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08614-01-9
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approval by the department of mental hygiene, no approval shall be
granted unless the public health and health planning council, having
afforded an adequate opportunity to members of health systems agencies,
if any, having geographical jurisdiction of the area where the institu-
tion is to be located to be heard, shall affirmatively find by substan-
tial 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, resi-
dence, halfway house, hostel, or other residential facility or institu-
tion with which such person is or was affiliated; for the purposes of
this paragraph, the public health and health planning council shall
adopt rules and regulations, subject to the approval of the commission-
er, to establish the criteria to be used to determine whether a substan-
tially consistent high level of care has been rendered, provided, howev-
er, 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.
§ 2. Subdivision 2 of section 2802 of the public health law, as
amended by section 6 of part R of chapter 59 of the laws of 2016, is
amended to read as follows:
2. The commissioner shall not act upon an application for construction
of a hospital until the public health and health 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 and health planning council
pursuant to the provisions of this article) provided, however, that the
commissioner may act upon an application for construction by an appli-
cant possessing a valid operating certificate when the application qual-
ifies for review without the recommendation of the council pursuant to
regulations adopted by the council and approved by the commissioner,
DETERMINED IN ACCORDANCE WITH SECTION TWENTY-EIGHT HUNDRED ONE-H OF THIS
ARTICLE, or as otherwise authorized by this section; and (b) the commis-
sioner 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 oper-
ated by an organization defined in subdivision one of section [four
hundred eighty-two-b of the social services] ONE HUNDRED SEVENTY-TWO-A
OF THE EXECUTIVE law, the needs of the members of the religious denomi-
nation concerned, for care or treatment in accordance with their reli-
gious or ethical convictions, shall be deemed to be public need.
§ 3. The public health law is amended by adding a new section 2801-h
to read as follows:
§ 2801-H. 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,
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(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.
§ 4. 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.