Part 401 - All Facilities--Operating Certificates

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Statutory Authority: 
Public Health Law, Section 2803

Section 401.1 - Issuance of operating certificates

Section 401.1 Issuance of operating certificates. (a) For new facilities, an establishment/construction application will contain the information necessary for automatic issuance of the initial operating certificate following final approval of the establishment/construction application. For purposes of this subdivision, final approval of the establishment/construction application shall consist of all final approvals, surveys and satisfaction of any contingency conditions.

(b) An operating certificate issued pursuant to subdivision (a) of this section shall remain in force until revised, annulled, revoked or surrendered, unless an expiration date is specified in the operating certificate as a result of a determination that a subsequent evaluation is necessary to ensure that the facility is operating in compliance with Public Health Law Article 28 and the rules and regulations promulgated thereunder.

(c) Upon the death of any person, party or member of a partnership to whom an operating certificate has been issued, the commissioner may permit the facility to continue operating under the existing operating certificate for such time as in his or her discretion shall be required for the transfer of such decedent's interest in the facility, for the processing of an application to the State Public Health Council for approval of establishment of a transferee of such decedent's interest and for the processing of an operating certificate on behalf of such transferee.

(d) Medical facilities not under the direction of the same governing authority, with each facility separately incorporated or owned and each operated by separate governing authorities, even though located on the same premises, shall each require a separate operating certificate.

(e) In addition to the operating certificate issued to each municipal hospital in a municipality having more than one such hospital, the municipality operating such hospital system shall have a separate operating certificate.

(f) Notwithstanding the limitations of this section, the commissioner upon a showing that efficiency of operations and services will result, may issue one operating certificate to a hospital when the facility is operated by one governing authority. A determination of efficiency of operation shall be based upon the following:

(1) Operational elements:

(i) existence of a single medical staff organization;

(ii) existence of a single credentialling, appointment, and privileges process for medical staff;

(iii) one chief executive officer accountable to the governing body;

(iv) uniform hospital policies;

(v) uniform patient care policies; and

(vi) uniform medical education and allied health programs, if applicable;

(2) Economic elements:

(i) demonstrable long-term economies in construction;

(ii) demonstrable long-term economies in volume purchasing;

(iii) demonstrable long-term economies resulting from an enhanced ability to afford specialized management and related expertise;

(iv) demonstrable long-term economies resulting from standardization of hotel-type services, supplies and equipment; or

(v) demonstrable long-term economies resulting from improved utilization of services and programs, staffing and financial viability of the hospital.

(g) Extension clinic shall mean a clinic which is a component of a general hospital sponsored ambulatory care program, or a diagnostic and treatment center sponsored ambulatory care program, offering services of a nonemergent nature and located on premises other than those of the hospital or diagnostic and treatment center which operates it. An extension clinic of a hospital or diagnostic and treatment center may be certified to provide services, authorized to be provided by a diagnostic and treatment center, other than or in addition to the services provided at the sponsoring hospital or center.

(h) A multi-site facility shall mean two or more general hospitals operated by a single governing authority or operator and located on separate premises.

(i) Except for part-time clinic sites as defined in section 700.2(a)(22) of this Title, an operating certificate shall be issued to each certified site of health care delivery, including extension clinics and shall indicate the specific services approved to be provided at that site.

(j) An established Article 28 network shall mean any arrangement in which operating authority, including, but not necessarily limited to, any of the functions listed under section 405.1(c) of this Title, is legally delegated to a corporation or other entity by hospitals participating in such arrangement and in which the corporation or other entity has received establishment approval by the Public Health Council under Article 28 of the Public Health Law as operator or co-operator of the participating hospitals. An established Article 28 network may, but need not, be a multi-site facility, as such term is defined in subdivision (h) of this section.

Effective Date: 
Wednesday, September 20, 2000
Doc Status: 
Complete

Section 401.2 - Limitations of operating certificates

401.2 Limitations of operating certificates. Operating certificates are issued to established operators subject to the following limitations and conditions:

(a) The medical facility shall control admission and discharge of patients or residents to assure that occupancy shall not exceed the bed capacity specified in the operating certificate, except that a hospital may temporarily exceed such capacity in an emergency.

(b) An operating certificate shall be used only by the established operator for the designated site of operation, except that the commissioner may permit the established operator to operate at an alternate or additional site approved by the commissioner on a temporary basis in an emergency. An operating certificate issued for a facility approved to provide:

(1) chronic renal dialysis services shall also encompass the provision of such services to patients at home;

(2) comprehensive outpatient rehabilitation facility (CORF) services shall also encompass the provision of the following services offsite: physical therapy, occupational therapy, speech pathology and in addition, home visits to evaluate the home environment in relation to the patient's established treatment goals; and

(3) outpatient physical therapy, occupational therapy and/or speech-language pathology services shall also encompass the provision of home visits to evaluate the home environment in relation to the patient's established treatment goals.

(c) An operating certificate shall be posted conspicuously at the designated site of operation.
 

Effective Date: 
Wednesday, March 7, 2012
Doc Status: 
Complete

Section 401.3 - Changes in existing medical facilities

401.3 Changes in existing medical facilities. (a) Proposed changes in physical plant, bed capacity and the extent and kind of services provided shall be submitted to the department in writing, pursuant to the provisions of section 710.1(b) of this Title. Such changes shall not be made until receipt of the appropriate department approval as set forth in section 710.1(b) of this title. The commissioner may, grant administrative approval to such proposed changes in accordance with the provisions and criteria set forth in section 710.1(c) of this Title.

(1) A medical facility shall submit, for all approved projects involving a capital outlay of $100,000 or more, a schedule of costs at the completion of construction, which shall be certified to the satisfaction of the commissioner and subject to audit.

(2) The schedule of costs shall be submitted either at the time of the final construction inspection or within 120 days of such inspection. The commissioner, upon written request to the Division of Health Care Financing, New York State Department of Health, and good cause being shown therefor, may grant an extension of time for such submission.

(3) Upon receipt of the schedule of certified costs, the department shall review the submission, request substantiating material and/or clarification of such submission, when necessary, and determine that the submitted costs are in conformity with the previously approved project concept, generally accepted accounting principles, the approved estimated project cost, and in the event the schedule of certified costs exceeds the approved estimated project cost, that the excess costs are necessary, justified and consistent with efficient production of services.

(b) (1) Any proposed change in the name of a business corporation, partnership or governmental subdivision and any proposed initial use of, or change in, an assumed name of a business corporation, not-for-profit corporation, partnership, governmental subdivision or sole proprietor, operating a medical facility or fundraiser under article 28 of the Public Health Law, or any proposed substitution of the individual or individuals constituting the operator or owner of a proprietary medical facility or any proposed change in the rights, privileges or obligations of any such person shall require the prior written approval of the department or, where appropriate, of the Public Health Council, except that in the event that such change or substitution results from an emergency caused by the severe illness, incompetency or death of such individual or individuals, the department shall be notified immediately, and application shall be made for written approval of such change both to the department and, where appropriate, to the Public Health Council, within 30 days of such emergency.

(2) Prior to any proposed change in the name of a business corporation, partnership or governmental subdivision or initial use of, or change in, an assumed name of a business corporation, not-for-profit corporation, partnership, governmental subdivision or sole proprietor which does not require the approval of the Public Health Council in accordance with section 600.11 of this Title, the operator of the facility shall submit a request for approval of such name change together with the following information and documents, as appropriate, to the department's Bureau of Project Management in Albany:

(i) a photocopy of the executed proposed certificate of amendment of the certificate of incorporation, certificate of authority to conduct business in the State of New York, or a certificate or amended certificate of conducting business under an assumed name;

(ii) a letter specifying the current and proposed names and explaining the nature of and the reasons for the requested name change; and

(iii) such other pertinent information and documents necessary for the department's consideration, as requested.

(3) The approval of the department of a proposed name or assumed name may be withheld if the proposed name or assumed name indicates or implies that the corporation, partnership, governmental subdivision or individual is authorized to engage in activities for which it is not authorized, provide a level of care it is not authorized to provide, is misleading, causes confusion with the identity of another facility, or violates any provision of the law.

(4) Nothing contained within this section shall limit the authority of the Public Health Council to approve or disapprove the initial use of a name or assumed name for a not-for-profit corporation, business corporation, partnership, governmental subdivision or sole proprietor when such name or assumed name is before the Public Health Council as part of an application for the establishment of a facility or fundraiser.

(c) No person or party to whom a current operating certificate has been issued authorizing the operation of a medical facility shall transfer his interest in such facility to any other person or party who intends to continue to operate such facility unless such transferee has been approved by the State Public Health Council, for establishment and has also received assurance by the department that the facility complies with the provisions of this Subchapter. (d) The governing authority or operator of a medical facility to whom a current operating certificate has been issued shall not lease or sublet all or a portion of the facility, unless such facility, its operation, and the service performed conform to and comply with the pertinent provisions of this Subchapter. (d) The governing authority or operator of a medical facility to whom a current operating certificate has been issued shall not lease or sublet all or a portion of the facility, unless such facility, its operation, and the service performed conform to and comply with the pertinent provisions of this Subchapter.

(e) To reduce the operation from the certified bed capacity to a specified lesser bed capacity, the operator shall obtain prior written approval of the department, show satisfactory cause for the requested reduction and maintain for the reduced number of patients or residents the required services and personnel. To increase the operation from a specified lesser bed capacity to a greater certified bed capacity, the operator shall employ such additional personnel as are required after approval thereof by the department. To increase the bed capacity above that permitted in the operating certificate, the operator shall apply to the department for a new operating certificate.

(f) (1) The operator of a medical facility for which a current operating certificate has been issued for health-related facility beds may submit an application, pursuant to the requirements of Part 710 of this Title, for the temporary conversion of health-related facility beds to skilled nursing home care beds. The need for such conversion will be established where it has been determined by the commissioner that the residents within the facility who occupy health-related facility beds actually require a skilled nursing home level of care and there are no skilled nursing home care beds available within the facility to accommodate such residents and the operator is in compliance with applicable provisions of this Subchapter. A facility permanently certified only for health-related facility beds shall not apply for temporary conversion or permanent conversion of beds to the skilled nursing home level of care except in conjunction with an application for prior establishment approval pursuant to article 28 of the Public Health Law and regulations promulgated pursuant thereto. Any approval of such temporary conversion of beds shall be for a maximum period of two years.

(2) If the application for temporary conversion is approved, amended operating certificates shall be issued. The amended operating certificates shall specify the number of beds converted and the duration of the conversion.

(3) At least three months prior to the expiration of the temporary conversion period, the operator of the facility must submit to the department, in writing, an effective, orderly plan, for approval by the commissioner, for returning the temporarily converted beds to their permanent residential health-care facility bed classification status. The plan must be fully implemented by the facility by the expiration of the temporary conversion period or as soon thereafter as is practicable.

(4) At the expiration of the temporary conversion period, the facility shall cease all admissions of patients requiring a skilled nursing home level of care until all beds temporarily converted are returned to their permanent residential health-care facility bed classification status.

(5) With respect to those beds that were temporarily converted because of the need for a skilled nursing home level of care by specific residents in the facility, no additional persons may be admitted to the facility to occupy such beds during the temporary conversion period. This provision will not prohibit the facility from placing in such beds individuals who, at the time of admission to the facility, required only a health-related facility level of care and who were admitted to a health-related facility bed, but whose condition deteriorated so as to require a skilled nursing home level of care.

(6) Any application for an extension of the temporary conversion period shall be subject only to the procedures and requirements of Part 710 of this Chapter.

(7) Immediately after all the temporarily converted beds have returned to their previous permanent classification status as health-related facility beds, the department shall issue the operator appropriately amended operating certificates.

(g) No medical facility shall discontinue operation or surrender its operating certificate unless 90 days' notice of its intention to do so is given to the commissioner and his written approval obtained.

(h) The operator shall notify, and in event of his failure to do so the department shall notify, as appropriate, each patient or resident, his next of kin, his sponsor and his physician, either directly or through the physician's medical society, immediately upon receipt of notification by the department revoking, suspending, limiting, annulling or refusing to issue the operating certificate or approving voluntary surrender of the certificate and shall discharge or transfer all patients or residents to other appropriate facilities prior to discontinuing operation. (i) No medical facility shall discontinue operation or surrender its operating certificate whether voluntarily or pursuant to judicial or administrative proceedings without first obtaining the commissioner's written approval of a plan for the maintenance, storage and safekeeping of its patients' medical records. The plan shall provide adequate safeguards for these records, make them accessible to the patients and their physicians, and may provide for their ultimate disposition. (j) An operating certificate shall be promptly surrendered to the department upon discontinuance of operation, determination of the Public Health Council not to approve an emergency change of operator or owner, or expiration, revocation, suspension, limitation, or annulment of the certificate.
 

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Section 401.4 - Review of operating certificate determinations

401.4 Review of operating certificate determinations. (a) To review a determination of the department made pursuant to the provisions of this Subchapter relating to an operating certificate, an applicant shall forward such request in writing to the commissioner, specifying the relief sought, within 30 days following the determination.

(b) The commissioner may, in his discretion, grant or deny the request; or, prior to making a determination, direct that a hearing be held to recommend whether the relief sought by the applicant shall be granted.

(c) The findings, conclusions and recommendations of the hearing officer may be referred by the commissioner to the council for review and recommendations; the council shall not act upon any such referral until the regional hospital planning councils concerned have had a reasonable time to submit their recommendations.
 

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