§ 3610. Authorization to provide a long term home health care program.
1. A long term home health care program may be provided only by a
certified home health agency, or by a residential health care facility
or hospital possessing a valid operating certificate issued under
article twenty-eight of this chapter. No agency, facility or hospital
shall provide a long term home health care program without the written
authorization of the commissioner to provide such a program.

2. A hospital, residential health care facility, or certified home
health agency seeking authorization to provide a long term home health
care program shall transmit to the commissioner an application setting
forth the scope of the proposed program. Such application shall be in a
format and shall be submitted in a quantity determined by the
commissioner. The commissioner shall transmit the application to the
public health and health planning council and to the health systems
agency, if any, having geographic jurisdiction of the area where the
proposed program is to be located. The application shall include a
detailed description of the proposed program including, but not limited
to, the following:

(a) an outline of the institution's or agency's plans for the program;

(b) the need for the proposed program;

(c) the number and types of personnel to be employed;

(d) the ability of the agency, hospital, or facility to provide the
program;

(e) the estimated number of visits to be provided;

(f) the geographic area in which the proposed programs will be
provided;

(g) any special or unusual services, programs, or equipment to be
provided;

(h) a demonstration that the proposed program is feasible and adequate
in terms of both short range and long range goals;

(i) such other information as the commissioner may require.

The health systems agency and the public health and health planning
council shall review the application and submit their recommendations to
the commissioner. At the time members of the public health and health
planning council are notified that an application is scheduled for
consideration, the applicant and the health systems agency shall be so
notified in writing. The health systems agency or the public health and
health planning council shall not recommend approval of the application
unless it is satisfied as to:

(a) the public need for the program at the time and place and under
the circumstances proposed;

(b) the financial resources of the provider of the proposed program
and its sources of future revenues;

(c) the ability of the proposed program to meet those standards
established for participation as a home health agency under title XVIII
of the federal Social Security Act; and

(d) such other matters as it shall deem pertinent.

After receiving and considering the recommendations of the public
health and health planning council and the health systems agency, the
commissioner shall make his or her determination. The commissioner shall
act upon an application after the public health and health planning
council and the health systems agency have had a reasonable time to
submit their recommendations. The commissioner shall not take any action
contrary to the advice of either until he or she affords to either an
opportunity to request a public hearing and, if so requested, a public
hearing shall be held. The commissioner shall not approve the
application unless he or she is satisfied as to the detailed description
of the proposed program and

(a) the public need for the existence of the program at the time and
place and under the circumstances proposed;

(b) the financial resources of the provider of the proposed program
and its sources of future revenues;

(c) the ability of the proposed program to meet those standards
established for participation as a home health agency under title XVIII
of the federal Social Security Act; and

(d) such other matters as he or she shall deem pertinent.

If the application is approved, the applicant shall be so notified in
writing. The commissioner's written approval of the application shall
constitute authorization to provide a long term home health care
program. If the commissioner proposes to disapprove the application, he
or she shall notify the applicant in writing, stating his or her reasons
for disapproval, and afford the applicant an opportunity for a public
hearing.

3. Authorization to provide a long term home health program may be
revoked, suspended, limited or annulled by the commissioner on proof
that a provider of a long term home health care program has failed to
comply with the provisions of this article or rules and regulations
promulgated thereunder.

4. (a) Such authorization shall not be revoked, suspended, limited or
annulled without a hearing. However, such authorization may be
temporarily suspended or limited without a hearing for a period not in
excess of thirty days upon written notice to the provider of a long term
home health care program following a finding by the department that the
public health or safety is in imminent danger.

(b) The commissioner shall fix a time and place for the hearing. A
copy of the charges, together with the notice of the time and place of
the hearing, shall be served in person or mailed by registered or
certified mail to the provider of a long term home health care program
at least twenty-one days before the date fixed for the hearing. Such
provider shall file with the department not less than eight days prior
to the hearing, a written answer to the charges.

(c) All orders or determinations hereunder shall be subject to review
as provided in article seventy-eight of the civil practice law and
rules. Application for such review must be made within sixty days after
service in person or by registered or certified mail of a copy of the
order or determination upon the applicant.

5. (a) Notwithstanding the provisions of subdivision four of this
section, the commissioner shall suspend, limit or revoke the
authorization of a provider of a long term home health care program
after taking into consideration the public need for the program and the
availability of other services which may serve as alternatives or
substitutes, and after finding that suspending, limiting, or revoking
the authorization of such provider would be within the public interest
in order to conserve health resources by restricting the level of
services to those which are actually needed.

(c) Whenever any finding as described in paragraph (a) of this
subdivision is under consideration with respect to any particular
provider of a long term home health care program, the commissioner shall
cause to be published, in a newspaper of general circulation in the
geographic area of such provider, at least thirty days prior to making
such a finding an annnouncement that such a finding is under
consideration and an address to which interested persons can write to
make their views known. The commissioner shall take all public comments
into consideration in making such a finding.

(d) The commissioner shall, upon making any finding described in
paragraph (a) of this subdivision with respect to any provider of a long
term home health care program, cause such provider and the appropriate
health systems agency to be notified of the finding at least thirty days
in advance of taking the proposed action. Upon receipt of any such
notification and before the expiration of the thirty days or such longer
period as may be specified in the notice, the provider or the
appropriate health systems agency may request a public hearing to be
held in the county in which the provider is located. In no event shall
the revocation, suspension or limitation take effect prior to the
thirtieth day after the date of the notice, or prior to the effective
date specified in the notice or prior to the date of the hearing
decision, whichever is later.

(e) Except as otherwise provided by law, all appeals from a finding of
the commissioner made pursuant to paragraph (a) of this subdivision
shall be directly to the appellate division of the supreme court in the
third department. Except as otherwise expressly provided by law, such
appeals shall have preference over all issues in all courts.

6. (a) The commissioner shall charge to applicants for the
authorization or construction of long term home health care programs an
application fee of two thousand dollars. Each such applicant shall, at
such time as the commissioner's written approval of a construction
application is granted, pay an additional fee of thirty hundredths of
one percent of the total capital value of the application.

(b) The fees paid by an applicant pursuant to this subdivision for any
application approved in accordance with this section shall be deemed
allowable costs in the determination of reimbursement rates established
pursuant to this article. All fees pursuant to this section shall be
payable to the department of health for deposit into the special revenue
funds - other, miscellaneous special revenue fund - 339, certificate of
need account.