§ 4008. Certification of hospices. 1. The commissioner shall not issue
a certificate of approval to any hospice unless it complies with the
provisions of this article and the rules and regulations promulgated
pursuant thereto, in accordance with the standards and procedures
adopted by the state hospital review and planning council, and is
qualified to participate as a hospice under title XVIII of the Federal
Social Security Act, provided, however that the commissioner shall issue
a certificate of approval to a hospice if he is satisfied that the
hospice cannot qualify to participate as a hospice under title XVIII of
the Federal Social Security Act solely because it proposes to provide
nursing services by arrangement with a certified home health agency. No
person, partnership or organization shall hold itself out as a hospice
unless it shall possess a valid certificate of approval.

2. Any hospice demonstration program participant applying for a
certificate of approval by the first day of June nineteen hundred
eighty-four and meeting all applicable standards shall be issued a
certificate of approval.

3. Subject to the provisions of this section and section four thousand
ten of this article, contractual agreements between a hospice and other
providers of other care and services shall not be prohibited, and a
hospice may employ and enter into contracts with any licensed healthcare
professional or any lawful combination thereof in relation to services
provided by the hospice under this article, provided that the hospice
maintains full responsibility for the planning, coordination and quality
of such services and the adherence to the plan of care established for
the patients.

4. A hospice certificate of approval may be revoked, suspended,
limited or annulled by the commissioner on proof that the hospice has
failed to comply with the provisions of this article or rules and
regulations promulgated thereunder.

5. No hospice certificate of approval shall be revoked, suspended,
limited or annulled without a hearing. However, a certificate may be
temporarily suspended or limited without a hearing for a period not in
excess of thirty days upon written notice to the hospice following a
finding by the department that the public health or safety is in
imminent danger.

6. 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 hospice at least twenty-one days before the date
fixed for the hearing. The hospice shall file with the department not
less than eight days prior to the hearing, a written answer to the
charges.

7. 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.

8. (a) Notwithstanding the provisions of subdivisions five through
seven of this section, the commissioner shall suspend, limit or revoke a
hospice certificate of approval after taking into consideration the
public need for the hospice and the availability of other services which
may serve as alternatives or substitutes, and after finding that
suspending, limiting, or revoking the certificate of approval of the
hospice would be within the public interest in order to conserve health
resources by restricting the level of services to those which are
actually needed.

(b) Whenever any finding as described in paragraph (a) of this
subdivision is under consideration with respect to any particular
hospice, the commissioner shall cause to be published, in a newspaper of
general circulation in the geographic area of the hospice, at least
thirty days prior to making such a finding an announcement that such
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.

(c) The commissioner shall, upon making any finding described in
paragraph (a) of this subdivision with respect to any hospice, cause
such hospice and the appropriate health systems agency to be notified of
the finding at least thirty days in advance of taking the proposed
action to revoke, suspend or limit the hospice's certificate of
approval. 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 hospice or the appropriate health systems agency may
request a public hearing to be held in the county in which the hospice
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.

(d) 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.