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

 A. 4641                             2
 
 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,

 A. 4641                             3
 
   (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.