SubChapter L - Hospitals and Related Facilities

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Part 81 - Residential Health Care Facilities; Patient Abuse

Effective Date: 
Friday, October 10, 1980
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Statutory Authority: 
Public Health Law Section 2803-d

Section 81.1 - Definitions

Section 81.1 Definitions. For the purposes of this section, the following words shall have the following meanings:

(a) The term abuse shall mean inappropriate physical contact with a patient or resident of a residential health care facility, while such patient or resident is under the supervision of the facility, which harms or is likely to harm the patient or resident. Inappropriate physical contact includes, but is not limited to, striking, pinching, kicking, shoving, bumping and sexual molestation.

(b) The term mistreatment shall mean inappropriate use of medications, inappropriate isolation or inappropriate use of physical or chemical restraints on or of a patient or resident of a residential health care facility, while such patient or resident is under the supervision of the facility.

(c) The term neglect shall mean failure to provide timely, consistent, safe, adequate and appropriate services, treatment, and/or care to a patient or resident of a residential health care facility while such patient or resident is under the supervision of the facility, including but not limited to: nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living.

(d) The term reasonable cause shall mean that upon a review of the circumstances, there is sufficient evidence for a prudent person to believe that physical abuse, mistreatment, or neglect has occurred. Circumstances to be reviewed shall include, but not be limited to any of the following: a statement that physical abuse, mistreatment or neglect has occurred, the presence of a physical condition at variance with the history or course of treatment of the patient or resident, and the visual or aural observation of an act or condition of physical abuse, mistreatment or neglect.

(e) The term expunge shall mean:

(1) in the case of a reported incident or circumstance which is not supported by sufficient credible evidence, the obliteration of any information, contained in any document, which identifies any individual or facility; or

(2) in the case where there is not sufficient credible evidence to support an accusation against an individual, the obliteration of any information, contained in any document, which identifies such individual.
 

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Section 81.2 - Persons required to report

81.2 Persons required to report.

(a) All persons listed in subdivision (1) of section 2803-d of the Public Health Law are required to report, and all other persons may report, physical abuse, mistreatment or neglect in accordance with this Part.
 

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Section 81.3 - Abuse by patients

81.3 Abuse by patients. Reports of abuse of one patient or resident by another may be reported to the New York State Department of Health, Office of Health Systems Management, but such reports are not a requirement of this Part. Only the provisions of sections 81.8 and 81.9, subdivisions (a), (b) and (c) of section 81.1, subdivision (a) of section 81.5, and subdivision (b) of section 81.7 of this Part shall apply to reports of abuse of one patient or resident by another.
 

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Section 81.4 - Contents of reports; procedures

81.4 Contents of reports; procedures.

(a) Reports of physical abuse, mistreatment or neglect made pursuant to this Part shall be made immediately by telephone and followed within 48 hours in writing to the New York State Department of Health, Office of Health Systems Management.

(b) The New York State Department of Health, Office of Health Systems Management shall maintain at all times a toll-free telephone line for the receipt of such reports.

(c) Written reports shall be made on forms supplied by the commissioner and shall include the following information: the identity of the person making the report and where he or she can be located; the name and address of the residential health care facility; the names of the operator and administrator of the facility, if known; the name of the subject of the alleged physical abuse, mistreatment or neglect, if known; the name of the person accused of committing the alleged physical abuse, mistreatment or neglect, if known; the nature and extent of the physical abuse, mistreatment or neglect; the date, time, and specific location of the occurrence; the names of next of kin or sponsors of the subject of the alleged physical abuse, mistreatment or neglect, if known; and any other information which the person making the report believes would be helpful to further the investigation. Written reports made other than on forms supplied by the commissioner which contain the information required herein shall be treated as if made on such forms. Such written reports shall be admissible in evidence, consistent with the provisions of this Part, in any actions or proceedings relating to physical abuse, mistreatment or neglect of persons receiving care or services in residential health care facilities.

(d) In any case where more than one person (as enumerated in section 2803-d of the Public Health Law) is required to report by law, a single telephone report followed by a single written report (as specified in subdivision (c) of this section) containing the names and signatures of those persons required to report will serve as proof that those persons required to report have complied.

(e) Each facility shall make available in a conspicuous public place such forms (as specified in subdivision (c) of this section) to patients, staff and visitors.

(f) Each facility shall be required to post conspicuously a poster, provided by the New York State Department of Health, Office of Health Systems Management, containing information regarding the filing of reports of physical abuse, mistreatment or neglect.
 

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Section 81.5 - Investigation and determination

81.5 Investigation and determination.

(a) Upon receipt of a report made pursuant to this section, the New York State Department of Health, Office of Health Systems Management, shall initiate within 48 hours an onsite investigation of the allegations contained in the report.

(b) Notification of the receipt of a report shall be made immediately by the New York State Department of Health, Office of Health Systems Management, to the appropriate district attorney, if a prior standing request in writing has been made to the department by the district attorney.

(c) Prior to the completion of the investigation by the New York State Department of Health, Office of Health Systems Management, every reasonable effort shall be made to notify, personally or by certified mail, any person under investigation for having committed an act of physical abuse, mistreatment or neglect.

(d) The commissioner shall make a written determination, based on the findings of the investigation, of whether or not sufficient credible evidence exists to sustain the allegations contained in the report or supports a conclusion that a person not named in such report has committed an act of physical abuse, neglect or mistreatment.

(1) A copy of such written determination, together with a notice of the right to a hearing as provided in this subdivision, shall be sent by registered or certified mail to each person who the commissioner has determined has committed an act of physical abuse, neglect or mistreatment.

(2) A letter shall be sent to any other person alleged in such report to have committed such an act stating that a determination has been made that there is not sufficient evidence to sustain the allegations relating to such person.

(3) A copy of each such determination and letter shall be sent to the facility in which the alleged incident occurred.

(e) The commissioner may make a written determination, based on the findings of the investigation, that sufficient credible evidence exists to support a conclusion that a person required by this section to report physical abuse, mistreatment or neglect had reasonable cause to believe that such an incident occurred and failed to report such incident. A copy of such written determination, together with a notice of the right to a hearing as provided in this Part, shall be sent by registered or certified mail to each person who the commissioner has determined has failed to report as required by this Part.

(f) All information relating to any allegation which the comimssioner has determined is not sustained shall be expunged as provided in section 81.1 of this Part. Whenever information is expunged, the commissioner shall notify any official notified pursuant to this section that the information has been expunged.
 

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Section 81.6 - Hearing

81.6 Hearing.

(a) Any time within 30 days of the receipt of a copy of a determination made pursuant to this Part, a person named in such determination as having committed an act of physical abuse, neglect or mistreatment, or as having failed to report such an incident, may request in writing that the commissioner amend or expunge the record of such report, to the extent such report applies to such person, or such written determination.

(b) If the commissioner does not comply with such request within 30 days, such person shall have the right to a fair hearing to determine whether the record of the report or the written determination should be amended or expunged on the grounds that the record is inaccurate or the determination is not supported by the evidence.

(c) The burden of proof in such hearing shall be on the department.

(d) Whenever information is expunged, the commissioner shall notify any official notified pursuant to this Part that the information has been expunged.
 

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Section 81.7 - Penalties

81.7 Penalties.

(a) In addition to any other penalties prescribed by law, any person who commits an act of physical abuse, mistreatment or neglect or who fails to report such an act may be liable for a penalty pursuant to section 12 of the Public Health Law after an opportunity to be heard.

(b) If upon review of the record, the commissioner determines that a violation of article 28 of the Public Health Law or rules and regulations promulgated pursuant thereto has occurred, the commissioner may pursue remedies against the facility or individual, including but not limited to, those set forth in sections 12, 12-b, 16, and 2803 of the Public Health Law.
 

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Section 81.8 - Retaliation

81.8 Retaliation.

(a) No residential health care facility or officer or employee thereof shall discharge or in any manner discriminate or retaliate against any person in any residential health care facility or any relative or sponsor thereof, or against any employee of the facility, or against any other person because such person, relative, legal representative, sponsor, or employee has made, or is about to make, a report in good faith pursuant to this section, or has testified or is about to testify in any proceeding relating to physical abuse, mistreatment or neglect of a person receiving care or services in a residential health care facility.

(b) Any violation of this section may be punishable pursuant to section 12 of the Public Health Law.
 

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Section 81.9 - Confidentiality

81.9 Confidentiality.

(a) Except as hereinafter provided, any report, record of the investigation of such report and all other information related to such report shall be confidential and shall be exempt from disclosure under article 6 of the Public Officers Law.

(b) Information relating to a report made pursuant to this Part shall be disclosed under any of the following conditions:

(1) pursuant to article 6 of the Public Officers Law, after expungement or amendment, if any, is made in accordance with a hearing conducted pursuant to this Part, or at least 45 days after a written determination is made by the commissioner concerning such report, whichever is later, provided, however, that the identity of the person who made the report, the victim, or any other person named, except a person who the commissioner has determined committed an act of physical abuse, neglect or mistreatment, shall not be disclosed unless such person authorizes such disclosure;

(2) as may be required by the Penal Law or any lawful order or warrant issued pursuant to the Criminal Procedure Law; or

(3) to a person who has requested a hearing pursuant to this Part, information relating to the determination upon which the hearing is to be conducted; provided, however, that the identity of the person who made the report or any other person who provided information in an investigation of the report shall not be disclosed unless such person authorizes such disclosure.
 

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Part 82 - Health Systems Agencies

Effective Date: 
Wednesday, November 7, 1990
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Statutory Authority: 
Public Health Law, Section 2904

SubPart 82-1 - Organization and Functions of Health Systems Agencies

Effective Date: 
Wednesday, November 7, 1990
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Section 82-1.1 - Definitions

Section 82-1.1 Definitions. As used in this subpart, the following words have the following meanings:

(a) "Commissioner" means the State Commissioner of Health.

(b) "Health facilities" shall include, but not be limited to hospitals as defined pursuant to section 2801(1) of the Public Health Law, facilities as defined pursuant to section 1.03(6) of the Mental Hygiene Law (other than community residences), certified home health agencies and long term home health care programs as defined pursuant to article 36 of the Public Health Law, hospices as defined pursuant to article 40 of the Public Health Law, and health maintenance organizations as defined pursuant to article 44 of the Public Health Law.

(c) "Health resources" shall include health services (including the provision of health care to individuals and the administration of health facilities), health professional personnel, and health facilities.

(d) "Provider of health care" means an individual: (1) who is a direct provider of health care (including but not limited to a physician, licensed midwife, dentist, nurse practitioner, licensed nurse, podiatrist, optometrist, physician's assistant, or ancillary personnel employed under the supervision of a physician) and whose primary current activity is the provision of health care to individuals or the administration (including trustees or members of boards of directors) of health facilities in which such care is provided; or (2) who holds a fiduciary position with, or has a fiduciary interest in, any entity which has as its primary purpose the delivery of health care, the conduct of research into or instruction for health professionals in the provision of health care, or the production of or supply of drugs or other articles for individuals or entities for use in the provision of or in research into or instruction in the provision of health care; or (3) who is a professional employee of a health professions school; or (4) who is the spouse of an individual described in paragraphs (1) or (2) or (3) of this subdivision.
 

Effective Date: 
Wednesday, May 31, 2000
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Section 82-1.2 - Health service areas

82-1.2 Health service areas.

(a) Geographical description.Health service areas have been established for health systems agencies such that:

(1) the area is a geographic region appropriate for the effective planning and development of health services, determined on the basis of factors including population and the availability of resources to provide all necessary health services for residents of the area.

(2) the boundaries of health service areas have been determined so as to recognize the differences in health planning and health services development needs between metropolitan and nonmetropolitan areas.

(3) in order for a bi-state health service area to be designated, a bi-state planning agreement must be established. The bi-state planning agreement shall include but need not be limited to the following provisions: standards for equitable representation of board membership from each state; boundaries that are consistent with medical trade patterns; provisions for financial support from each state; and comparable policies and procedures to be implemented by the bi-state health systems agency in evaluating the availability and need for hospital or other health care facilities or services and governing the collection of data and statistics for health planning. Any such bi-state agreement shall be signed by the executives of each state.

(b) The geographical boundaries and territorial extent of the health services areas in New York State for health systems agencies are based on county groupings, approved by the governor, as described below:

Area 1: the counties of Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Orleans, Niagara and Wyoming.

Area 2: the counties of Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne and Yates.

Area 3: the counties of Cayuga, Cortland, Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence and Tompkins.

Area 4: the counties of Broome, Chenango, Tioga, Bradford, Sullivan and Susquehanna provided a bi-state planning agreement with the State of Pennsylvania exists.

Area 5: the counties of Albany, Clinton, Columbia, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Montgomery, Otsego, Rensselaer, Saratoga, Schenectady, Schoharie, Washington and Warren.

Area 6: the counties of Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster and Westchester.

Area 7: the counties of Bronx, Kings, New York, Queens and Richmond.

Area 8: the counties of Nassau and Suffolk.

Effective Date: 
Wednesday, November 7, 1990
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Section 82-1.3 - Legal structure

82-1.3 Legal structure.

A health systems agency shall be a corporation organized pursuant to the not-for-profit corporation law which is incorporated in New York State, which is not a subsidiary of, or otherwise controlled by, any other private or public corporation or other legal entity, and which only engages in health planning and development activities and functions as defined in section 82-1.6 of this subpart.
 

Effective Date: 
Wednesday, November 7, 1990
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Section 82-1.4 - Staffing

82-1.4 Staffing.

(a) A health systems agency shall have appropriate staff to fulfill health planning and development activities and functions as defined in section 82-1.6 of this subpart.
 

Effective Date: 
Wednesday, November 7, 1990
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Section 82-1.5 - Governing body

82-1.5 Governing Body.

A health systems agency shall have a governing body which shall have exclusive authority to perform the health systems agency functions described in section 82-1.6 of this subpart. The "governing body" shall mean the board of directors of the health systems agency or a standing committee designated by the board of directors.

(a) Responsibilities. The governing body shall be responsible for:

(1) appointing an executive director who shall be responsible for the internal affairs of the health systems agency including matters related to the staff of the agency and the agency's budget;

(2) the approval or disapproval of the agency's annual budget, health systems and other plans, reports, and products prepared by the agency as appropriate;

(3) issuing an annual report concerning the activities of the agency, and making the report readily available to the residents of the health service area and to the various communications media serving the area;

(4) performing any other duties and functions of the health systems agency required by law; and

(5) approving major planning initiatives not specifically required in section 82-1.6 of the subpart.

(b) Meetings. The governing body shall:

(1) meet at a minimum four times per calendar year;

(2) hold public meetings as if it were a public body to conduct the business of the agency;

(3) give adequate notice to the public of such meetings;

(4) provide an opportunity for parties directly affected by a decision of the agency to request a public meeting and, when good cause is shown, to conduct a public meeting for the purpose of considering additional information provided by the affected party(ies); and

(5) act by vote of at least a majority of the members of the governing body present at the time of the vote, provided a quorum is present at such time. (A quorum for the governing body shall be not less than a majority of its members.)

(c) Composition. Each health systems agency shall establish a process for the selection of the members of its governing body which assures a rotation of membership and that the members are broadly representative of the residents of the health service area and that the participation of such residents is encouraged and facilitated. A member of the governing body shall serve no more than two consecutive fixed terms of three years each in any period of twelve consecutive years or no more than a total of six years in any twelve-year period. Persons appointed as board members prior to March 1, 1990 shall be eligible to serve a full term subject to the conditions and limitations of section 2904 of the Public Health Law. Full compliance with this requirement shall be required as of March 1, 1993.

The membership of the board of directors of a health systems agency and any executive committee designated by the board of directors shall meet the following criteria:

(1) A majority (but not more than sixty percent of the members) shall be (i) residents of the health service area served by the agency who are consumers of health care, and (ii) broadly representative of the health service area and shall include individuals representing the principal social, economic, linguistic, handicapped, ethnic and racial populations and geographic areas of the health service area and major purchasers of health care, including labor organizations and business corporations, in the area. A consumer shall mean a person who is not a "provider of health care" as defined in accordance with section 82-1.1(d) of this subpart. Full compliance with this requirement shall be required as of March 1, 1993.

(2) The remainder of the members shall be residents of, or have their principal place of business in, the health service area served by the agency who are providers of health care and who, to the extent practicable, are representative of the variety of disciplines and interests of the health care system including (i) physicians, dentists, nurse practitioners, licensed midwives, licensed nurses, optometrists, podiatrists, physician's assistants, and other health professionals, (ii) health facilities, (iii) health care insurers, (iv) health professional schools, (v) the allied health professions, and (vi) other providers of health care.

Not less than one-half of the providers of health care of the governing body of a health systems agency shall be direct providers of health care and of such direct providers of health care, at least one shall be a person engaged in the administration of a health facility.

(3) At least sixty percent of board membership shall be nominated by local government, local provider organizations and local community organizations.

(4) The members shall (i) include public elected officials or other representatives of units of general purpose local government in the agency's health service area and representatives of public and private agencies in the area concerned with health, (ii) include persons who reside in nonmetropolitan areas within the health services area proportionate to the percentage of residents of the area who reside in nonmetropolitan areas, (iii) include persons who are knowledgeable about mental hygiene services, and (iv) if the agency serves an area in which there are one or more health maintenance organizations, include at least one member who is representative of such organizations. (5) To the extent practicable, all standing committees, subcommittees, and advisory groups appointed by the governing body of the health systems agency shall be appointed in such a manner as to provide broad representation in such a manner that a majority of the members shall be consumers of health care.

(d) Conflicts of interest.

(1) Annual statement. Each member of the governing body and staff shall submit annually to such governing body a written statement identifying all health facilities in which he or a member of his family has an interest, financial or otherwise, whether as owner, officer, director, fiduciary, employee or consultant, or supplier of goods or services where the health facility or health facilities represent a significant portion of the business of the supplier. For purposes of this subdivision, "family" shall, at a minimum, include a spouse and dependent children. Each health systems agency may expand the definition of family in their bylaws. The chair of the governing body shall distribute to each member and staff a copy of the annual statements submitted by all other members and staff.

(2) Pending matters. Each health systems agency shall adopt bylaws regarding disclosure and conflicts of interest which shall provide at a minimum:

(i) Disqualification. Where a member of the governing body and standing committees or his family has an interest, financial or otherwise, whether as owner, officer, director, fiduciary, employee or consultant of a health facility under consideration, or supplier of goods or services regarding a health facility under consideration where the health facility represents a significant portion of the business of the supplier, that member shall identify such interest and shall not participate in any vote on the matter.

(ii) Disclosure and possible disqualification. Where a member of the governing body and standing committees or his family has any of the aforesaid interests in a health facility, the status of which might reasonably be affected by another health facility under consideration before the body and which serves or is proposed to serve the same community or service areas as does the health facility in which the member of his family has an interest, or in any event where a member has an interest or association which might reasonably raise suspicion among the public that participation by him in the matter under consideration would be in violation of his trust, he shall, at the time of formal consideration of such matters before the body, disclose such interests or association so that the chair and, if necessary, the body can then determine whether his participation in the discussion of or vote on the matter would be proper.

(iii) Procedure. Prior to discussion or vote, all actual or potential conflicts shall be announced and, where appropriate, explained by the members holding such conflicts. In the case of disqualification, the members holding such conflicts shall absent themselves from the meeting during the period when the matter is under formal consideration unless the body, upon request of the member for good cause, by affirmative vote of the majority of those present determines to permit such member to remain. The minutes of each meeting of the body shall reflect all disclosures regarding conflicts of interest as well as the abstention from voting of the interested member.

(3) Advisory groups. Each health systems agency shall adopt conflicts of interest bylaws for advisory groups which advise the governing body or its standing committees.

(e) Records.

(1) The governing body of each health systems agency shall ensure that records and data of the agency are available, upon request, to the public, other than records or data that would not be subject to disclosure if the agency were a public agency subject to the Freedom of Information Law (article 6 of the Public Officers Law). Such records include, but are not limited to, applications and related documents concerning the establishment or construction of health facilities as defined in this subpart. Records, or portions thereof, which are not subject to disclosure shall be kept confidential.

(2) (i) Routine requests for access to records in which it appears clear that the requested information is disclosable shall be processed by the health systems agency.

(ii) Requests for access to records in which there is a question as to whether the information is subject to disclosure shall be forwarded to the Department of Health's records access officer, Corning Tower, Empire State Plaza, Albany, New York 12237 for a determination.

(3) A health systems agency may impose a reasonable charge for all inspections and copies, not exceeding the costs incurred by such agency. (f) Other requirements. Each health systems agency shall:

(1) submit a semi-annual report to the Senate and Assembly health committees, and the commissioner detailing the activities of each agency during that reporting period,

(2) annually submit a copy of its operating budget to the chairman of the Senate Finance Committee, the chairman of the Assembly Ways and Means Committee, the Director of the Budget and the Commissioner of Health. Such operating budget shall contain information detailing contributions received and the type and sources of contributions eligible for matching grants,

(3) provide for such fiscal control consistent with generally accepted accounting principles as the commissioner may require to assure proper disbursement of, and accounting for, funds received by the health systems agency from the state and other sources, and

(4) retain for a period of six years and permit the commissioner, the State Comptroller and the Attorney General, or their duly authorized representatives, to have access for the purpose of audit, inspection and copying to all books, documents, papers, accounts and records pertinent to the disposition of funds received by the health systems agency from the state and other sources.
 

Effective Date: 
Wednesday, May 31, 2000
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Section 82-1.6 - Functions

82-1.6 Functions.

(a) Health systems agencies shall conduct regional health planning for the purposes of:

(1) improving the health of residents of a health service area,

(2) improving the availability, accessibility, continuity, quality, effectiveness and efficiency of the health services provided,

(3) controlling unnecessary increases in the cost of providing health services,

(4) preventing unnecessary duplication of health resources, and

(5) promoting of the development of health services, manpower, and facilities which meet identified needs, reduce inefficiencies, respond to local health planning priorities and implement the health plans of the agency.

(b) A health systems agency shall perform the following functions on behalf of the state based upon available resources:

(1) assess the health status and health service needs of the population in the health service area, with attention to variations by location, socio-economic category, ethnicity, environment, age and disability and prepare and submit to the commissioner a comprehensive regional health plan which identifies priorities, goals, and implementation strategies for the health care system of the health service area;

(2) convene multiprovider and consumer planning groups for the purpose of identifying unmet needs affecting health status and to examine, at the community level, and report to the appropriate state agency, ways to develop primary and preventive services to meet those needs;

(3) assess health facility construction needs and submit to the commissioner, in a mutually agreed upon format and time frame, priority rankings of the capital expenditure and health service needs identified in its health service area;

(4) convene multifacility planning groups for the purpose of health facilities planning pursuant to Part 710 of Subchapter C of Chapter V of this Title in order to assist the commissioner to identify excess capacity, duplications, and unmet needs for health facilities, equipment, and services;

(5) convene providers of health care for the purpose of developing and implementing plans subject to approval by the appropriate state agency which respond to unmet needs and/or improve the allocation and distribution of health care services;

(6) assist appropriate state agencies, the Public Health Council, the State Hospital Review and Planning Council and appropriate councils under the Mental Hygiene Law in the development of standards and guidelines to determine public need for hospital and other health, including mental health services;

(7) coordinate its activities with other appropriate general or special purpose regional health and human services planning or administrative agencies including area agencies on aging, local and regional alcohol abuse, drug abuse, and mental health planning agencies, social services agencies, county public health departments, and local health officers. The health systems agency shall, as appropriate, obtain data from such other agencies for use in the health systems agency's planning and development activities, enter into agreements with such other agencies, and to the extent practicable, provide technical assistance to such other agencies;

(8) review and comment on the standards, criteria, findings, and recommendations proposed by the Department of Health concerning the appropriateness of selected health services in the health service area;

(9) conduct public hearings related to applications for the establishment or construction of a hospital as defined in Article 28 of the Public Health Law, the certification of home health agencies and the authorization to provide a long term home health care program as defined in Article 36 of the Public Health Law, the establishment or construction of a hospice as defined in Article 40 of the Public Health Law, and the establishment or construction of mental hygiene services and facilities other than community residences as defined in section 1.03(6) and pursuant to Article 31 of the Mental Hygiene Law;

(10) recommend to the commissioner and to the Public Health Council as appropriate approval or disapproval of applications for the establishment or construction of a hospital as defined in Article 28 of the Public Health Law, the certification of home health agencies and the authorization to provide a long term home health care program as defined in Article 36 of the Public Health Law, the establishment or construction of a hospice as defined in Article 40 of the Public Health Law;

(11) recommend to the appropriate state agency approval or disapproval of applications for the establishment or construction of mental hygiene services and facilities other than community residences as defined in section 1.03(6) and pursuant to Article 31 of the Mental Hygiene Law; (12) perform and issue special reports and engage in other planning and implementation activities at the request of the commissioner (or other appropriate state agency); such reports may be related to:

(i) the health status (and its determinants) of the residents of the health service area;

(ii) the status of the health care delivery system in the area and the use of that system by the residents of the area;

(iii) the effect the area's health care delivery system has on the health of the residents of the area;

(iv) the number, type, and location of the area's health resources including health services, manpower, and facilities; and

(v) the patterns of utilization of the area's health resources.

(c) The commissioner shall, in consultation with the health systems agencies, determine what specialized plans and reports are required as well as the time frame and format for the development of such plans and reports.

(d) In addition to the functions described in section 82-1.6(b) of this subpart, a health systems agency, to carry out its purposes, functions, and activities as described in section 82-1.6(a) of this subpart, may enter into agreements or contracts with and receive grant funds, contributions or donations from various entities interested in fostering the health planning goals and objectives of this subsection. A health systems agency may enter into agreements and contracts with and receive grant funds, contributions or donations from such entities as: (i) local, county, and state government; (ii) not-for-profit organizations exempt from taxation pursuant to section 501(c)(3) of Title 26 of the United States Code, private industry, insurers of health services, and other organizations, excluding, however, any such entities that are providers of health care operating facilities licensed or certified pursuant to the Public Health Law or Mental Hygiene Law except as may be authorized in accordance with paragraph (1) of subdivision (e) of this section; and (iii) associations of health facilities or associations of providers of health care.

(e) (1) A health systems agency shall not engage in any fee for service activity with a provider or potential provider of health care services except local government without prior approval of the State Hospital Review and Planning Council. Approval shall be issued or denied in a timely manner.

(2) The governing body of a health systems agency shall be responsible for developing and periodically revising policies and procedures, governing the agency's ability to sell resources and engage in fee-for- service activities or other contractual arrangements. Such policies and procedures shall be submitted to the State Hospital Review and Planning Council for review.
 

Effective Date: 
Wednesday, November 7, 1990
Doc Status: 
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SubPart 82-2 - State Funding for Health Systems Agencies

Effective Date: 
Wednesday, November 7, 1990
Doc Status: 
Complete

Section 82-2.1 - Grants, general

Section 82-2.1 Grants, general. The Commissioner of Health, contingent upon appropriation by the legislature, shall annually make a grant to each health systems agency for health planning and development. A grant under this subpart shall be made on such conditions, including the submission of the agency's budget and annual programmatic and administrative plans, as the Commissioner of Health determines is necessary and appropriate, and shall be used by the health systems agency for compensation of health systems agency personnel, collection of data, planning, and the performance of the functions of the health systems agency.

A health systems agency may use grant funds to make payments under contracts with other entities to assist the health systems agency in the performance of its functions as defined in section 82-1.6 of subpart 82-1 of this part; but an agency may not use grant funds to make payments under a grant or contract with another entity for the development or delivery of health services or resources.
 

Effective Date: 
Wednesday, November 7, 1990
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Section 82-2.2 - Computation of grants

82-2.2 Computation of grants. The amount of any grant made to a health systems agency pursuant to this subpart shall be determined by the Commissioner of Health, in accordance with appropriations made pursuant to law.

(a) Base support. The Commissioner of Health shall allocate at least $250,000, contingent upon appropriation level, as base support for each health systems agency and shall distribute any base support according to an equitable formula.

(b) Matching support. Matching support shall be provided based on the level of appropriation and shall be calculated based on a ratio of the appropriation and funds raised and received during the previous calendar year from other qualified sources including grants by local and county governments, interest income, and grants or contributions made by individuals or private entities excluding grants or contributions made by individuals, private entities, or health maintenance organizations having a financial, fiduciary, or other direct interest in the development, expansion, or support of health resources. The calendar year shall be applied to promote consistency and uniformity in measuring funds raised notwithstanding any overlap that may occur in the initial year in measuring funds raised on which state matching funds are calculated. For purposes of this paragraph, an individual or entity shall not be considered to have such an interest solely on the basis of (i) providing, directly or indirectly, health care for their employees, nor (ii) engaging in issuing any policy or contract of individual or group health insurance or hospital or medical service benefits. Further, for purposes of this paragraph, an association of health facilities or providers of health care shall not be considered to have such an interest. The funds raised and received from other qualified sources on which state matching funds are calculated and allocated shall be used solely for the purposes specified in section 82-1.6 of subpart 82-1 of this part.
 

Effective Date: 
Wednesday, November 7, 1990
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Section 82-2.3 - Termination

82-2.3 Termination.

(a) A grant may be terminated by the Commissioner of Health before the expiration of the established funding period if (1) the health service area of the agency is revised during the funding period or (2) the Commissioner of Health determines that the health systems agency cannot effectively carry out the functions as defined in section 82-1.6 of subpart 82-1 of this part.

(b) Before the Commissioner of Health may terminate the funding of a health systems agency, the commissioner shall provide written notice of the reasons for termination and shall provide the health systems agency with an opportunity to meet with the Department of Health, present information and resolve the deficiencies.
 

Effective Date: 
Wednesday, November 7, 1990
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Section 82-2.4 - Accounting

82-2.4 Accounting.

The health systems agency shall maintain full and complete books, records and accounts, consistent with generally accepted accounting principles, pertinent to the receipt and disposition of state grant funds and other funds. Such books, records and accounts shall be retained for a period of six years from the date of disbursement of such grant funds and other funds by the health systems agency and shall at all times be made available for audit, inspection and copying by the Commissioner of Health, the State Comptroller and the Attorney General, or by their duly authorized representatives.
 

Effective Date: 
Wednesday, November 7, 1990
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Section 82-2.5 - Limitations on non-state sources of funding

82-2.5 Limitations on non-state sources of funding.

A health systems agency may enter into agreements and contracts with and receive grant funds, contributions or donations from such entities as: (i) local, county, and state governments; (ii) not-for-profit organizations exempt from taxation pursuant to section 501(c)(3) of Title 26 of the United States Code, private industry, insurers of health services, and other organizations, excluding, however, any such entities that are providers of health care operating facilities licensed or certified pursuant to the Public Health Law or Mental Hygiene Law except as may be authorized in accordance with section 82-1.6(e)(1) of subpart 82-1 of this part; and (iii) associations of health facilities or associations of providers of health care.
 

Effective Date: 
Wednesday, November 7, 1990
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Part 83 - Shared Health Facilities

Effective Date: 
Monday, December 19, 1977
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Statutory Authority: 
Public Health Law, Section 4712

SubPart 83-1 - Shared Health Facilities

Effective Date: 
Wednesday, December 24, 2014
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Statutory Authority: 
Public Health Law, Section 4712

Section 83-1.1 - Applicability

83-1.1 Applicability.

The requirements and standards set forth in this Part shall apply to shared health facilities as defined.
 

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Section 83-1.2 - Definitions

83-1.2 Definitions.

(a) Shared health facility or facility shall mean any arrangement or operation for the delivery of medical or heath care or services which meets all of the following requirements:

(1) Any combination of four or more practitioners licensed under:

(i) article 131 of the Education Law (physician); or

(ii) article 131 A of the Education Law (physical therapist, physiotherapist, physician's associate, specialist's assistant); or

(iii) article 132 of the Education Law (chiropractor); or

(iv) article 133 of the Education Law (dentist, dental hygienist); or

(v) article 137 of the Education Law (pharmacist); or

(vi) article 139 of the Education Law (registered professional nurse, licensed practical nurse); or

(vii) article 141 of the Education Law (podiatrist); or

(viii) article 143 of the Education Law (optometrist); or

(ix) article 144 of the Education Law (ophthalmic dispensor, optician); or

(x) article 156 of the Education Law (occupational therapist); or

(xi) article 159 of the Education Law (speech pathologist, audiologist).

(2) One or more of the practitioners receives payment under the Medical Assistance Program on a fee-for-service basis;

(3) The total aggregate remuneration from the Medical Assistance Program of one or more of the practitioners exceeds $5,000 for any one month during the preceding 12 months;

(4) The practitioners practice their professions at a common physical location;

(5) The practitioners share:

(i) common waiting rooms or areas; or

(ii) examining rooms; or

(iii) treatment rooms; or

(iv) other space; or

(v) the services of supporting staff; or

(vi) equipment.

(6) A person, whether a practitioner or not:

(i) is in charge of, controls, manages or supervises substantial aspects of the arrangement or operation for the delivery of health or medical services at the practitioners' common physical location; or

(ii) makes available to the practitioners the services of administrative, nursing, clerical, secretarial, maintenance, or other supporting staff who are not employees of the practitioners.

(b) Practitioner shall mean a person who is engaged in the practice of human medicine, dentistry or related professions and duly licensed in accordance with the provisions of title VIII of the New York State Education Law.

(c) Provider shall mean any qualified physicians, dentists, nurses, optometrists and other related professional personnel receiving reimbursement from the program.

(d) Purveyor shall mean any person who, whether or not located in a building which houses a shared health facility, engages in the business of supplying to patients, directly or indirectly, any medical supplies, equipment or services for which reimbursement under the program is received, including, but not limited to, clinical laboratory services or supplies, X-ray laboratory services or supplies; inhalation therapy services or equipment; ambulance services; sick room supplies; physical therapy services or equipment; orthopedic or surgical appliances or supplies; drugs, medication or medical supplies; eyeglasses, lenses, or other optical supplies or equipment; hearing aids or devices; and any other goods, services, supplies, equipment or procedures prescribed, ordered, recommended or suggested for medical diagnosis, care or treatment.

(e) Program shall mean the New York State program of medical assistance for needy persons (Medicaid) as provided in title II of article 5 of the New York State Social Services Law.

(f) Patient shall mean anyone eligible to receive or receiving benefits under the provisions of the New York State program of medical assistance for needy persons, as provided in title XI of article 5 of the New York State Social Services Law.

(g) Commissioner shall mean the Commissioner of Health of the State of New York.

(h) Department shall mean the New York State Department of Health.

(i) Operator shall mean the owner of the premises in which a shared health facility is located, or the lessee, if the structure in which the shared health facility is located has been leased pursuant to a lease.

(j) Manager or administrator shall mean an individual designated by the shared health facility owner or operator to assume functional responsibility for the management and coordination of the activities within the facility.

(k) For purposes of this Part, a combination of four or more practitioners shall be deemed to exist for the remainder of the shared health facility registration period if at any time during such registration period four or more practitioners occupy professional office space or practice their professions at a common physical location.
 

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Section 83-1.3 - Applicability of other laws, codes, rules and regulations

83-1.3 Applicability of other laws, codes, rules and regulations.

Shared health facility providers, purveyors, operators, administrators, managers and employees shall comply with all Federal, State and local laws, codes, rules, and regulations pertaining to participation in the Medical Assistance Program, including, but not limited to pertinent sections and provisions of title XIX of the Social Security Act, the New York State Social Services Law, the New York State Public Health Law and codes, rules and regulations enacted pursuant thereto; the New York State Medical Handbook, medical plans of local social services districts, and with local laws, ordinances, codes, rules and regulations having general application.
 

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Section 83-1.4 - Registration of shared health facilities required

83-1.4 Registration of shared health facilities required.

(a) No shared health facility shall be operated in New York State after the effective date of this Part unless the facility operator shall possess a valid facility registration issued by the department.

(b) The registration may specify the kind or kinds of medical care, services or supplies which may be provided in the shared health facility. Such determinations may be based on the availability of space, equipment and appropriate trained personnel in the facility.
 

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Section 83-1.5 - Registration of shared health facilities

83-1.5 Registration of shared health facilties.

(a) Application for the registration of a shared health facility shall be made upon forms prescribed by the department and shall contain the information required therein.

(b) Each operator of a shared health facility shall apply for renewal of the registration not earlier than 90 days and not later than 30 days prior to the expiration of the current facility registration.

(1) Applications for registration of shared health facilities shall be obtained from the department regional office having responsibility for the administration and supervision of the Medical Assistance Program in the local social services district in which the shared health facility is located.

(2) The shared health facility registration and registration number shall be issued in the name of the facility and the facility operator, and shall not be transferred or discontinued except upon written approval or demand of the department.

(3) A shared health facility registration, issued pursuant to the application specified in this section, shall be issued for a period not to exceed two years, shall be used by the facility operator only for the designated place of operation and shall be prominently posted within the designated premises.

(4) The department may verify the information submitted on the application or a registration. Such verification may be by onsite visit to the applicant operator's premises and may include interview of any owner, operator, practitioner, provider, purveyor, patient or employee encountered on the premises, inspection of any business records, patient records, leases or other contracts executed by any provider or purveyor maintaining a professional practice or business on the premises, and any equipment or instruments used therein.
 

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Section 83-1.6 - Denial of applications for registration; suspension or revocation of registrations

83-1.6 Denial of applications for registration; suspension or revocation of registrations.

(a) The department may deny the issuance of a registration, revoke or suspend the registration of a shared health facility upon one or more of the following grounds:

(1) a finding by the department that false information was submitted as part of the application;

(2) a finding of fraudulent practices on the part of any of the facility's providers or purveyors;

(3) a finding by the department that the facility is not in substantial compliance with the minimum physical or environmental standards for shared health facilities as set forth in this Part, provided, however, that a provisional registration may be issued to a facility operating prior to September 1, 1977, which is not in substantial compliance with these regulations when the condition of the premises does not constitute an immediate danger to the public health; the physical deficiencies are capable of correction within a set period of time; and the applicant or applicants warrant that the specified deficiencies will be corrected within that period;

(4) a finding by the department that the facility has failed to comply with the rules and regulations set forth in this Part;

(5) a finding by the department that any individual having a direct or indirect interest in the facility operation or business, or the manager or administrator of such facility is not of the requisite good moral character:

(i) no application for registration shall be denied solely on the basis that an individual has been convicted of a crime without consideration having been given to:

(a) the public policy of the State to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

(b) the specific duties and responsibilities necessarily related to the operation of a shared health facility;

(c) the bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more of such duties and responsibilities;

(d) the time which has elapsed since the occurrence of the criminal offense or offenses;

(e) the age of the person at the time of occurrence of the criminal offense or offenses;

(f) the seriousness of the offense or offenses;

(g) any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

(h) the legitimate interest of the department in preventing abuses in shared health facilities and in ensuring the quality, continuity and coordination of medical care provided in such facilities.

(ii) In making a determination as to the moral character of any such person, the department shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to such person, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.

(b) Upon denial of an application for registration, the applicant will be notified by the department of the denial, the basis for the denial, and will be afforded an opportunity for a hearing. A request for a hearing must be made within 15 days of the notice of denial. All hearings under this section will be conducted in accordance with the procedures set forth in paragraphs (2) and (3) of this subdivision:

(1) The registration of a shared health facility shall be suspended or revoked, pursuant to a hearing as further described in paragraphs (2) and (3) of this subdivision; provided, however, that a registration may be suspended or limited for a period not in excess of 30 days upon written notice to the shared health facility operator following a determination by the commissioner that the public health or safety is in imminent danger.

(2) A notice of hearing which sets forth the time, place and nature of the hearing; the legal authority and jurisdiction under which the hearing is to be held; a reference to the particular sections of the statutes and rules involved; and a short and plain statement of the matters asserted shall be served in person or mailed by certified mail to the facility at least 21 days before the date fixed for the hearing. The shared health facility shall file with the department, not less than eight days prior to the hearing, a written answer to the charges.

(3) Hearings shall be conducted in accordance with section 12-a of the Public Health Law and pursuant to the provisions of the State Administrative Procedure Act by the commissioner or by a hearing officer appointed by the commissioner. The hearing officer shall not determine, but shall submit his report to the commissioner setting forth his findings of facts, his conclusions and his recommendations. (4) Final appropriate action shall be taken upon waiver of the right to a hearing by the shared health facility operator or upon failure by the operator of a shared health facility to appear at a hearing.

(5) All orders or determinations hereunder shall be subject to review as provided in article 78 of the Civil Practice Law and Rules. Application for such review must be made within 60 days after service in person or by certified mail of a copy of the order or determination upon the applicant.

(6) Any shared health facility provider or purveyor who violates any provision of article 47 of the Public Health Law pertaining to shared health facilities or of this Part may, subject to the review and hearing procedures specified in 18 NYCRR Part 515, be barred from collecting any payments under the program from the date such violation occurs.
 

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Section 83-1.7 - Required notifications

83-1.7 Required notifications.

(a) The owner, operator or manager of a shared health facility shall notify the department within 15 days of any change in: (1) the persons, partnerships or corporations having ownership (including leasehold ownership) of the shared health facility;

(2) the persons, partnerships or corporations holding any mortgage, lien, leasehold or other security interest in the shared health facility; and

(3) the individual designated to assume functional responsibility for coordination and management of the activities within the shared health facility.

(b) The owner, operator or manager of a shared health facility shall notify the department within 15 days of:

(1) any termination of services of any practitioner in the shared health facility;

(2) the identity of each practitioner newly participating in the facility.

(c) All required notifications shall be made in writing upon forms provided, and shall contain such information as prescribed, by the department.
 

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Section 83-1.8 - Quality of care requirements

83-1.8 Quality of care requirements. (a) Each shared health facility shall:

(1) have an individual designated as a manager or administrator, who shall have functional responsibility for the management and coordination of activities within the facility, and who shall help to ensure that the facility and its providers, purveyors and employees comply with the various provisions of this Part;

(2) have an appropriate means of ensuring that:

(i) patients will be scheduled to return to the facility for follow-up care or services when such follow-up care or services are deemed necessary and appropriate; and

(ii) each patient will be treated or served by practitioners, providers or purveyors familiar with the patient's medical history.

(b) Each individual provider or purveyor practicing his profession or conducting his business in the facility shall maintain proper records, which at a minimum shall contain:

(1) the full name, address and medical assistance program number of each patient treated or served in the facility;

(2) the date of each patient visit to the individual provider or purveyor;

(3) the patient's chief complaint for each visit;

(4) the patient's pertinent medical history and the findings for any physical examination performed by any provider;

(5) the diagnostic impressions for each visit;

(6) a notation of all medication prescribed and the precise dosage and prescription regimen for each medication prescribed;

(7) a description of any X-rays, laboratory tests and electrocardiograms ordered or performed and a notation of the results thereof;

(8) a notation as to any referral by any provider or purveyor in the facility to another provider, practitioner or purveyor, a statement as to the reason for such referral, and the results of such referral; and

(9) a statement as to whether or not the patient is expected to return for further treatment, and the prospective dates for all return appointments.

(c) Each individual provider and purveyor practicing his profession or conducting his business in a shared health facility shall furnish to patients only services and supplies which are of high quality and necessary to prevent, diagnose, correct or cure conditions that cause acute suffering, endanger life, result in illness or infirmity, interfere with the patients' capacity for normal activity or threaten some significant handicap.

(d) Each shared health facility shall:

(1) provide suitable space and equipment for the storage of medical records, and maintain in a centralized location within the facility, original or true copies of each provider's or purveyor's medical records and medical assistance program invoices submitted for reimbursement;

(2) assign an individual and clearly identified practitioner to each patient requesting treatment or services in the shared health facility, provided, however, that the assignment may be changed at any time at the patient's discretion;

(3) conspicuously post and otherwise make available to patients either:

(i) the manned central answering service telephone number of each patient's designated practitioner or such designated colleague(s); or

(ii) the telephone number of the facility's centralized 24 hour-a-day, 7 days-a-week manned telephone line for off-hour emergency patient questions.

(e) Each shared health facility shall provide equipment and space which will ensure that all patients have a maximum of privacy during interview, examination and treatment.

(f) Each shared health facility shall post in a location and manner conspicuous to visiting and waiting patients a notice which shall provide the telephone number and identity of the New York State Department of Health agency which is responsible for providing information concerning shared health facilities and for receiving complaints concerning the provision of health care services in shared health facilities. Such notices may be provided to the facility by the department, and if so provided, shall be posted in lieu of any notices to the same or similar effect.

(g) The facility shall post in a location and manner conspicuous and comprehensible to visiting and waiting patients the names and scheduled office hours of all practitioners practicing in the facility.

(h) Nothing in this Part shall in any way be interpreted as infringing upon the patient's right to free selection of a personal practitioner.

(i) The department shall have the right to inspect patient medical records, business records, leases and other contracts executed by any provider or purveyor in a shared health facility. Such inspection may be by onsite visits to the facility.
 

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Section 83-1.9 - Daybook registry

83-1.9 Daybook registry. Each shared health facility shall maintain a central daybook registry which shall as a minimum record:

(a) the full name and Medical Assistance Program number of all patients requesting or receiving care or services at the facility;

(b) the chief complaint of each patient;

(c) the names of providers or purveyors whose services the patient requested and the names of all providers and purveyors to whom the patient was directed or assigned; and

(d) the name of the provider, practitioner or purveyor from whom the patient was referred.
 

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Section 83-1.10 - Shared health facility report and audit requirements

83-1.10 Shared health facility report and audit requirements.

(a) Each shared health facility shall establish and maintain a system of uniform reports and internal utilization review audits as prescribed by the commissioner.

(b) The information contained in the required reports and audits shall be made available from time to time in such manner and form as required by the department.
 

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Section 83-1.11 - Provider and purveyor leases

83-1.11 Provider and purveyor leases.

(a) Each shared health facility operator shall file with the department a true copy of any lease and any renewal of a lease executed by the facility operator and any provider or purveyor practicing his profession in the facility. If a lease or lease renewal is verbally made, the operator shall file with the department an accurate written account of the terms of such verbal agreement signed by all parties to such agreement.

(b) Copies of existing provider and purveyor leases shall be submitted to the department together with the application for registration of a shared health facility. Leases or lease renewals executed subsequent to the initial issuance of a facility registration shall be filed with the department within 15 days of execution.
 

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Section 83-1.12 - Prohibited practices-additional requirements

83-1.12 Prohibited practices-additional requirements.

(a) The fee for letting of space, provision of services by supporting staff and employees, use or control of equipment or for other considerations necessary for the provision of medical care and services shall not be calculated or paid as a percentage of the earnings or billings of the providers or purveyors for services rendered on the facility premises.

(b) No purveyor, whether or not located in a building which houses a shared health facility shall directly or indirectly offer, pay or give to any provider, and no provider shall directly or indirectly solicit, request, receive or accept from any purveyor any sum of money, credit or other valuable consideration for:

(1) recommending or procuring goods, services or equipment of such purveyor; or (2) directing patronage or clientele to such purveyor; or

(3) influencing any person to refrain from using or utilizing goods, services or equipment of any purveyor.

(c) No provider or purveyor shall demand or collect from any patient compensation for care or services in excess of the fee specified in the appropriate program fee schedule.

(d) No purveyor shall provide to a patient eligible to receive or receiving benefits under the provisions of the program any services, equipment, pharmaceutical or other medical supplies differing in quantity in any other respect from that described in the payment invoice submitted by such purveyor to the department. No purveyor shall provide to any patient eligible to receive or receiving under the provisions of the program any services, equipment, pharmaceutical or medical supplies differing in quality, quantity or in any other respect from that prescribed by the provider.

(e) No provider or purveyor in a shared health facility or person employed in a facility shall refer a patient to another provider or purveyor located in such facility unless there is a medical need for such referral and unless the records of the referring provider or purveyor pertaining to such patient clearly sets forth the justification for such referral.

(f) Every provider or purveyor practicing in a shared health facility who treats a patient referred to him by another provider practicing in the same facility shall communicate in writing to the referring provider the diagnostic evaluation and the therapy rendered. The referring provider or purveyor shall incorporate such information into the patient's permanent record.

(g) The invoice submitted to the program by the provider or purveyor to whom such patient has been referred shall:

(1) contain the name and program number of the referring provider or purveyor; and

(2) identify the medical problem or condition which necessitated the referral.

(h) All provider and purveyor invoices submitted to the program for reimbursement for services rendered at a shared health facility shall:

(1) contain the registration code of the facility at which the service was performed;

(2) clearly identify the provider or purveyor who provided the service; and

(3) be signed by the provider or purveyor only after the service has been performed.

(i) Invoices submitted to the program for care, supplies or services rendered at a shared health facility lacking a valid, current registration issued by the department are not eligible for reimbursement by the program.

(j) All orders issued by providers for ancillary clinical services, including but not limited to x-rays, electrocardiograms, clinical laboratory services, electroencephalograms, as well as orders for medical supplies and equipment, shall contain the registration number assigned to the facility at which the order was written.

(k) Any pharmacy maintaining a business in or adjacent to the building in which a shared health facility is located shall prominently post a notice informing patients that all pharmaceuticals prescribed in the program may be obtained at any pharmacy of the patient's choice enrolled in the program.

(l) No purveyor who maintains a business in the building in which a shared health faculty is located shall maintain a door or window opening into the space occupied by the facility, except where the profession of a provider permits the provider to function simultaneously as a purveyor.

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Section 83-1.13 - Engineering and maintenance

83-1.13 Engineering and maintenance.

(a) Water supplies of shared health facilities shall be operated in conformance with the following requirements:

(1) water shall be adequate in volume and pressure for all medical purposes; (2) the water system shall not be operated with physical connections to other piping systems or connections to fixtures that may permit contamination of the water supply;

(3) the water system shall be operated with a hot water system adequate for all medical purposes; and

(4) the hot water supply shall be regulated by thermostatic or other control devices which shall be either locked or located in places not accessible to patients or the general public so that the hot water used by patients and the public is maintained at an even temperature which cannot cause personal injury.

(b) Plumbing and plumbing fixtures shall be properly maintained.

(c) Ventilation, heating, air conditioning and air changing systems shall be: (1) sufficient to provide for patient health and comfort;

(2) sufficient to assure that relative humidity is maintained at a minimum of 50 percent in those areas where conductive floors are required; and

(3) maintained in good repair and operated in a manner to prevent the spread of infection.

(d) Grounds and buildings shall be maintained:

(1) in a clean condition free of safety hazards;

(2) in such manner as will prevent standing water, flooding or leakage; and

(3) free of excessive noise, odors, pollens, dusts or other environmental pollutants and such nuisances as may adversely affect the health or welfare of patients.
 

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Section 83-1.14 - Housekeeping

83-1.14 Housekeeping.

(a) The entire facility, including, but not limited to the floors, walls, windows, doors, ceilings, fixtures, equipment and furnishings shall be maintained in good repair, clean and free of insects, rodents and trash.

(b) Dusting, mopping and vacuum cleaning shall be done in a manner which will not spread dust or other particulate matter.

(c) Adequate supplies and equipment for housekeeping functions shall be provided; cleaning compounds and hazardous substances shall be properly labeled and stored.

(d) Solid wastes, including garbage, rubbish and other refuse, biological wastes and infectious material, shall be collected, stored and disposed of in a manner that will prevent the transmission of disease and not create a nuisance or fire hazard, nor provide a breeding place for insects or rodents.

(e) Adequate measures shall be instituted for the handling and disposal of infectious wastes, including needles and syringes, dressings, surgical and biological wastes.
 

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Section 83-1.15 - Fire and safety

83-1.15 Fire and safety.

(a) Buildings and equipment shall be so maintained as to prevent fire and other hazards to personal safety.

(b) Exits, stairways, doors and corridors shall be kept free of obstructions. Corridors or passageways that do not provide a clear, unobstructed path to the outside shall not be marked as exits.

(c) Flammable and nonflammable medical gases shall be labeled, stored, handled and used in compliance with the requirements of the National Fire Protection Association No. 56A Inhalation Anesthetics, 1973 Edition, 56B Respiratory Therapy 1973 Edition, and 56F Non-Flammable Medical Gas Systems, 1973 Edition. These standards were published by the National Fire Protection Association, Batterymarch Park, Quincy, MA and a copy of each of these standards is available for inspection and copying at the offices of the records access officer of the Department of Health, Corning Tower, Empire State Plaza, Albany, NY.

(d) Flammable and combustible liquids shall be labeled, stored, handled and used in compliance with the requirements of the National Fire Protection Association No. 30, Flammable and Combustible Liquids Code, 1973 Edition. This standard was published by the National Fire Protection Association, Batterymarch Park, Quincy, MA and a copy is available for inspection and copying at the offices of the records access officer of the Department of Health, Corning Tower, Empire State Plaza, Albany, NY.

(e) The facility shall exercise proper safeguards for the prevention of accidents to patients, staff and employees.

(f) Portable fire extinguishers shall be provided in accordance with the National Fire Protection Association No. 10, Installation of Portable Fire Extinguishers, 1973 Edition, and shall be inspected at least annually, recharged or repaired as needed and labeled with the date of the last inspection. This standard was published by the National Fire Protection Association, Batterymarch Park, Quincy, MA and a copy is available for inspection and copying at the offices of the records access officer of the Department of Health, Corning Tower, Empire State Plaza, Albany, NY.
 

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Section 83-1.16 - Infection control

83-1.16 Infection control.

(a) Shared health facilities shall assure that effective procedures in aseptic technique are followed by all personnel.

(b) Shared health facilities shall provide disposable covers for examination tables and for dental chair headrests and assure that such covers are changed after each patient's use.

(c) Physicians practicing in shared health facilities shall report the presence of any communicable disease as defined in section 2.1 of the State Sanitary Code, directly to the city, county or district health officer and to the department within 24 hours from the time the case is first seen by the physician.
 

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Section 83-1.17 - Linen and laundry

83-1.17 Linen and laundry.

(a) Shared health facilities shall:

(1) provide a sufficient quantity of clean linen to meet the requirements of patients;

(2) separately bag or enclose used linens from infectious patients in readily identified containers distinguishable from other laundry; and

(3) transport and store clean linen in a manner to prevent its contamination.
 

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Section 83-1.18 - Disinfection and sterilization

83-1.18 Disinfection and sterilization.

(a) Shared health facilities shall:

(1) assure proper cleaning, disinfection, sterilization and storage of all equipment and supplies that require such treatment;

(2) provide for monthly bacteriological tests of sterilization processes, and keep a record of the results of such tests; and

(3) assure proper cleaning and disinfection or sterilization of gas, oxygen, aspirating and vaporizing equipment.
 

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Section 83-1.19 - General structural equipment and safety standards

83-1.19 General structural equipment and safety standards.

(a) Compliance with local laws and regulations. Shared health facilities shall conform with all local laws, regulations and codes relating to fire and safety, sanitation, plumbing and other health requirements, where such laws, regulations and codes impose standards in addition to those required by this Part.

(b) Shared health facilities shall comply with pertinent provisions of the American National Standard Institute (ANSI) Standard No. A117.1, American Standard Specifications for making buildings and facilities accessible to, and usable by, the physically handicapped (1961). Copies of this publication are available from the publisher, American National Standards Institute, Inc., 1430 Broadway, New York, NY, and a copy is available for inspection and copying at the offices of the records access officer of the Department of Health, Corning Tower, Empire State Plaza, Albany, NY.

(c) Office space and public areas. There shall be:

(1) a lobby which shall include:

(i) an information counter or desk;

(ii) adequate waiting space; however, no corridor, subcorridor or passageway shall be used as waiting space; and

(iii) public toilet facilities;

(2) suitable storage facilities for sterile supplies, clinical laboratory specimens, pharmaceutical supplies, housekeeping supplies, and equipment.

(d) Clinical facilities shall include:

(1) general purpose examination room(s) for medical, dental, obstetrical and similar examinations shall have a minimum floor area of 64 square feet excluding such spaces as vestibule, toilet and closet. A lavatory or sink equipped for handwashing and a counter for shelf space for writing shall be provided. Room sizes for specialized examinations or procedures, such as eye, dental, and ear, nose and throat, shall provide sufficient space for treatment of patients and accommodation of equipment.

(2) a drug distribution center, if required by facility needs, which shall include double-locked storage for controlled substances; and

(3) sterilizing facilities for the sterilization of equipment and supplies if supplies, or equipment requiring sterilization are used.

(e) Diagnostic facilities shall meet the following requirements:

(1) Radiographic installations, when provided, shall conform to the applicable requirements of Part 16 of the State Sanitary Code, and shall include:

(i) dressing areas with convenient access to a public toilet;

(ii) radiographic room(s);

(iii) film processing facilities;

(iv) viewing and administrative areas; and

(v) film storage facilities.

(2) Laboratory facilities shall contain at least a specimen collection room, which may be a public toilet that contains a water closet and lavatory.

(f) Janitor's closet or area. Each facility shall have at least one janitor's closet or separate area for the storage of housekeeping equipment and supplies, and a floor receptor or service sink.

(g) Details and finishes.

(1) Toilet rooms which may be used by patients shall be equipped with hardware which will permit access from the outside in any emergency.

(2) Soap and towel dispensers and waste receptacles shall be provided at all hand-washing fixtures. Handwashing sinks in examination rooms shall be provided with other than hand controls and with hot and cold water.

(3) Cubicle curtains and draperies shall be noncombustible and shall pass both the large and small scale tests of the National Fire Protection Association, Standard 701, Standard Methods of Fire Tests for Flame-Resistant Textiles and Films, 1969 edition. This standard was published by the National Fire Protection Association, Batterymarch Park, Quincy, MA, and a copy is available for inspection and copying at the offices of the records access officer of the Department of Health, Coming Tower, Empire State Plaza, Albany, NY.

(4) Floor materials shall be easily cleanable and have wear resistance appropriate for the location involved.

(5) Wall finishes shall be washable and, in the immediate area of plumbing fixtures, shall be smooth and moisture resistant.

(h) Construction, including fire safety requirements. Shared health facilities shall comply with the National Fire Protection Association No. 1O1, Chapter 13, Life Safety Code for Business Occupancies, 1973 Edition. The Life Safety Code is published by the National Fire Protection Association, Batterymarch Park, Quincy, MA, and a copy of the 1973 edition is available for inspection and copying at the offices of the records access officer of the Department of Health, Corning Tower, Empire State Plaza, Albany, NY.

(i) mechanical requirements.

(1) The facility shall maintain a minimum temperature of 65 degrees Fahrenheit during operating hours.

(2) Toilet rooms shall be provided with mechanical exhaust of air or screened windows which open to the outside. (3) Vacuum breakers shall be provided on all plumbing fixtures to which hoses or tubing can be attached.

(j) Electrical requirements.

(1) Adequate electrical outlets shall be provided in all areas of the facility to accommodate necessary equipment without the use of receptacle adapters which allow multiple appliances to be plugged into a single outlet or which adapt three-pronged, grounded plugs to two-wire, ungrounded circuits.

(2) Sufficient lighting to permit normal operation and to avoid any hazards to personal safety shall be provided.

(k) The commissioner may, upon application, waive the specific requirements of section 83-1.19 of this Part for any shared heath facility, upon a satisfactory showing by the applicant and a determination that:

(1) there are specified practical difficulties in conforming with the pertinent provisions of section 83-1.19 of this Part;

(2) the waiver of such requirement does not adversely affect the health and safety of the patients, visitors or staff;

(3) the construction of the facility when reviewed in its entirety provides adequate protection to the health and safety of the patients, visitors and staff.
 

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SubPart 83-2 - Certificate of Public Advantage

Effective Date: 
Wednesday, December 17, 2014
Doc Status: 
Complete
Statutory Authority: 
Public Health Law, Section 2999-bb

Section 83-2.1 - Definitions

83-2.1 Definitions. The following terms shall have the following meanings for purposes of this Article:

(a) “Attorney General” means the Attorney General of the State of New York.

(b) “Certificate of Public Advantage” or “Certificate” means a Certificate issued by the Department pursuant to this Subpart signifying the approval of a Cooperative Agreement or of a planning process.

(c) “Cooperative Agreement” means an executed agreement among a health care provider and one or more persons or entities, including other health care providers, governing any of the following:

(1) The sharing, allocation, or referral of patients, personnel, instructional programs, information technology resources, support services and facilities, or medical, diagnostic, or laboratory facilities or equipment, or procedures or other services traditionally offered by health care providers or health care-related entities, including but not limited to, the implementation of clinical integration programs and payment mechanisms that involve the sharing of data and resources to develop, implement, and monitor the effectiveness of, and adherence to, performance standards, clinical protocols and evidence-based practices; or

(2) A merger, consolidation, purchase of stock or assets, partnership, joint venture, or any other transaction or affiliation by which ownership or control over all or substantially all of the stock, assets, or activities of one or more health care providers, or health care-related entities, is transferred to another entity who controls a health care provider or health care-related entity.

“Cooperative Agreement” shall not include any Agreement that would permit a health care provider to act in a manner which would be otherwise prohibited by law, except as authorized pursuant to Article 29-F of the Public Health Law.

(d) “Federal or state antitrust laws” means any and all federal or state laws prohibiting monopolies or agreements in restraint of trade, including the federal Sherman Act, Clayton Act, Federal Trade Commission Act and laws set forth in Article 22 of the New York General Business Law, including amendments thereto.

(e) “Health care provider” shall include, but not be limited to, a facility, agency or program licensed or certified pursuant to Article twenty-eight, thirty-six, or forty of the Public Health Law; a health care professional licensed pursuant to title eight of the Education Law or a lawful combination of such health care professionals; or an entity licensed, certified or funded pursuant to Article sixteen, thirty-one, thirty-two or forty-one of the Mental Hygiene Law.

(f) “Mental hygiene agency” means one of the autonomous offices of the state Department of Mental Hygiene established under section 5.01 of the Mental Hygiene Law.

(g) “Person” means any individual, firm, partnership, corporation, association, public or private institution, political subdivision, or government agency.

(h) “Planning process” means a process, including a process convened and overseen by a planning entity approved by the Department, intended to plan for and result in a Cooperative Agreement.

(i) “Primary service area” means the lowest number of postal zip codes from which the party draws at least 75 percent of its patients for each service or group of services provided.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.2 - Certificate of Public Advantage

83-2.2 Certificate of Public Advantage.

(a) Effect. Parties that have received a Certificate of Public Advantage issued by the Department shall be provided state action immunity under federal antitrust laws and immunity from private claims under state antitrust laws and may negotiate, enter into, and conduct business pursuant to, a Cooperative Agreement or a planning process covered by a duly issued Certificate of Public Advantage. The Attorney General may seek relief under state antitrust law after:

(i) consulting with the Department, the mental hygiene agencies as appropriate, and the parties to the Certificate of Public Advantage; and

(ii) providing the parties with a reasonable opportunity to modify their conduct or Agreement, if the challenged conduct is inconsistent with or beyond the scope of the Certificate of Public Advantage or if the Attorney General determines that the anticompetitive effects of the parties’ conduct or business arrangement outweigh the benefits of the conduct or business arrangement.

(b) Application.

(1) Parties to a Cooperative Agreement or planning process may apply to the Department for a Certificate of Public Advantage governing that Cooperative Agreement or planning process. The application must be submitted in a format determined by the Department and shall be provided by the Department to the Attorney General and, as appropriate, the mental hygiene agencies.

(2) The application for a Certificate of Public Advantage governing a Cooperative Agreement must include a copy of the Cooperative Agreement, any related agreements or side letters (including a description of any related oral agreement), a description of the nature and scope of the activities and cooperation included in the Cooperative Agreement, a full description of any consideration passing to any party under the Cooperative Agreement and any additional documentation or information required by the Department.

(3) The application for a Certificate of Public Advantage governing a planning process must include a detailed letter of intent with respect to the potential Cooperative Agreement, a description of the nature and scope of the activities and cooperation likely to be included in the potential Cooperative Agreement and any additional documentation or information required by the Department.

(4) The applicants must supply any additional documentation or information requested by the Department within 30 days, or any other stated time frame of such request, or must obtain from the Department an extension of the time in which to provide such documentation or information which is requested during the review of the application. Any request for an extension of time shall set forth reasons why such documentation or information could not be obtained within the prescribed time. The granting of a request for an extension shall be at the discretion of the Department.

(5) Failure to provide such documentation or information within the time prescribed or as extended by the Department shall constitute an abandonment or withdrawal of the application without any further action from the Department, the Attorney General, mental hygiene agencies as appropriate, or the Public Health and Health Planning Council.

(c) To the extent that the Cooperative Agreement contemplates activities that are subject to certificate of need or other approval or notice submission requirements pursuant to law or regulation, the parties shall also submit the required applications or notices.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.3 - Public notice

83-2.3 Public notice.

(a) Upon submission of an application for a Certificate of Public Advantage or an application to renew a Certificate of Public Advantage, each party to be covered by the Certificate shall conspicuously post on its public website, in a form determined by the Department, a description of the application with an electronic link to the section of the Department’s public website where applications for Certificates of Public Advantage are summarized. If the party has no public website, it shall provide notice to the public in a manner acceptable to the Department.

(b) The Department shall publish on the Department’s public website a notice of the receipt of each application for a Certificate of Public Advantage, with a brief summary of the application and instructions for persons wishing to provide comments.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.4 - Fees for applications and monitoring

83-2.4 Fees for applications and monitoring.

(a) An application filing fee of $5,000 must be paid to the Department at the time an application for a Certificate of Public Advantage or for renewal of a Certificate of Public Advantage is submitted pursuant to this Subpart.

(b) The applicant shall also cover the cost of consultants needed by the Department to assist in the review of the application for a Certificate of Public Advantage and any subsequent applications for renewal and in periodic monitoring, as determined by the Department.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.5 - Review process

83-2.5 Review process. The Department shall review applications pursuant to this Subpart, in consultation with the Attorney General and, as appropriate, the mental hygiene agencies. The factors to be considered in evaluating applications shall include, but shall not be limited to:

(a) the financial condition of the parties to the Cooperative Agreement, including whether any health care provider party is experiencing financial distress and may be forced to cease operations or eliminate a service in the absence of the Cooperative Agreement;

(b) the dynamics of the relevant primary service area, including the availability of suitable and accessible health care services and the level of competition in the primary service area, the likelihood that other health care providers will enter or exit the primary service area, the health care workforce and the existence of unique challenges such as difficulties in recruiting and retaining health care professionals;

(c) the potential benefits of a Cooperative Agreement or planning process, including but not limited to the likelihood that one or more of the following may result from such Cooperative Agreement or planning process:

(1) Preservation of needed health care services in the relevant primary service area that would be at risk of elimination in the absence of a Cooperative Agreement;

(2) Improvement in the nature or distribution of health care services in the primary service area, including expansion of needed health care services or elimination of unnecessary health care services;

(3) Enhancement of the quality of health care provided by the parties to the Cooperative Agreement;

(4) Expansion of access to care by medically-underserved populations;

(5) Lower costs and improved efficiency of delivering health care services, including reductions in administrative and capital costs and improvements in the utilization of health care provider resources and equipment; or

(6) Implementation of payment methodologies that control excess utilization and costs, while improving outcomes;

(d) the potential disadvantages of a Cooperative Agreement or planning process, including but not limited to the likelihood that one or more of the following may result from such Cooperative Agreement or planning process:

(1) Increased costs or prices of health care in the primary service area resulting from the Cooperative Agreement, after taking into consideration improvements in quality and outcomes;

(2) Diminished quality, availability, and efficiency of health care services;

(3) Inability of health care payers or health care providers to negotiate reasonable payment and service arrangements; or

(4) Reduced competition among physicians, allied health professionals, other health care providers, or other persons furnishing goods or services to, or in competition with, health care providers and the potential for adverse health system quality, accessibility and cost consequences;

(e) the availability of arrangements that are less restrictive to competition and achieve the same benefits or a more favorable balance of benefits over disadvantages attributable to any reduction in competition;

(f) other benefits or disadvantages identified in the course of review; and

(g) the extent to which active supervision is likely to mitigate the disadvantages.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.6 - Issuance of a Certificate of Public Advantage

83-2.6 Issuance of a Certificate of Public Advantage.

(a) The Department shall not issue a Certificate of Public Advantage without first consulting with the Attorney General and, as appropriate, the mental hygiene agencies, and consulting with, and receiving a recommendation from, the Public Health and Health Planning Council.

(b) After consulting with the Attorney General, the mental hygiene agencies as appropriate, and the Public Health and Health Planning Council, and receiving a recommendation from the Public Health and Health Planning Council, the Department may issue a Certificate of Public Advantage for the Cooperative Agreement or planning process, if it determines that the benefits likely to result from the Agreement or planning process outweigh the disadvantages.

(c) The Certificate shall include any conditions that the Department, in consultation with the Attorney General, the mental hygiene agencies as appropriate, and the Public Health and Health Planning Council, and receiving a recommendation from the Public Health and Health Planning Council, determines to be appropriate in order to ensure that the Cooperative Agreement or the planning process and the activities conducted under it are consistent with Article 29-F of the Public Health Law and its purpose to improve health care quality, access, efficiency and clinical outcomes. Such conditions shall be related to the proposed activities and goals of the Cooperative Agreement or the planning process and may include, but need not be limited to:

(1) Implementation of a clinical integration plan;

(2) Achievement of quality benchmarks, implementing evidence-based practices and clinical protocols, reducing preventable admissions and readmissions and sub-optimal emergency department use, and achieving other outcomes as identified by the Department;

(3) Maintaining or expanding certain services or levels of access by under-served populations;

(4) Investment in primary care and population health activities;

(5) Improvement in population health benchmarks;

(6) Measures to prevent unwarranted price increases and achieve savings;

(7) Measures to promote efficiencies and achieve savings, including reductions in duplication of services, unnecessary or preventable utilization, capital expenditures, and administrative overhead;

(8) Improvement in recruitment and retention of needed health care professionals; and

(9) Conditions reasonably necessary to ameliorate likely disadvantages, including potential disadvantages identified in section 83-2.5(d) of this Subpart.

(d) A Certificate of Public Advantage may be issued for a period to be determined by the Department, which shall be no less than two years in duration, and shall be subject to active supervision as provided in this Subpart and renewal, as applicable, pursuant to the procedure set forth in sections 83-2.10 and 83-2.11 of this Subpart.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.7 - Record keeping

83-2.7 Record keeping.

The Department shall maintain on file each Cooperative Agreement for which a Certificate of Public Advantage is in effect and a copy of the Certificate, including any conditions imposed on it.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.8 - Modification and termination

83-2.8 Modification and termination.

(a) Any material modification of a Cooperative Agreement or planning process which is the subject of a Certificate of Public Advantage issued pursuant to this Subpart shall be subject to the prior review and approval of the Department in consultation with the Attorney General, the mental hygiene agencies as appropriate, and the Public Health and Health Planning Council, and the receipt of a recommendation from the Public Health and Health Planning Council.

(b) Any party to a Cooperative Agreement covered by a Certificate of Public Advantage that terminates such Agreement shall file a notice of termination with the Department at least 30 days prior to termination of the Agreement, in addition to any other notices or approvals required by applicable law or regulations. Such notice of termination shall be provided by the Department to the Attorney General and, as appropriate, the mental hygiene agencies, and shall be deemed a voluntary surrender of a Certificate of Public Advantage pursuant to section 83-2.14.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.9 - Periodic reports

83-2.9 Periodic reports.

(a) A report of activities pursuant to the Cooperative Agreement or the planning process shall be filed with the Department in such form as the Department, in consultation with the Attorney General and the mental hygiene agencies as appropriate, may require. Such report of activities shall be provided by the Department to the Attorney General and, as appropriate, the mental hygiene agencies. Subject to the terms of the Certificate of Public Advantage and any extensions thereof, such reports shall be filed annually after the issuance of the Certificate of Public Advantage, on or before the anniversary date on which the Certificate was issued, for each year that the Certificate is in effect and at such other times as the Department, in consultation with the Attorney General and the mental hygiene agencies as appropriate, may require.

(b) Such report shall include the following, unless waived by the Department:

(1) A description of the activities conducted pursuant to the Cooperative Agreement or planning process.

(2) Price, cost, and savings information, including efficiencies achieved and additional information requested by the Department, the Attorney General or the mental hygiene agencies as appropriate, related to conditions required under section 83-2.6(c)(9) of this Subpart.

(3) The nature and scope of the activities expected to be undertaken pursuant to the Cooperative Agreement or planning process during the next two years or for the remainder of the Certificate of Public Advantage, if the balance of the Certificate’s term is less than two years, and the likely effect of those activities.

(4) Data concerning the utilization of services in the communities served by the Cooperative Agreement and quality of care delivered by the health care provider parties to the Agreement, including any data on progress in achieving quality benchmarks or targets for reducing preventable hospital admissions or readmissions or sub-optimal emergency department use specified by the Department.

(5) Most recent available data concerning population health in the communities served by the Agreement and progress in meeting any population health benchmarks.

(6) Data concerning health care professional recruitment and retention under the Cooperative Agreement or planning process.

(7) An analysis of the benefits and/or expected benefits of the Cooperative Agreement or planning process under the Certificate of Public Advantage, taking into account any conditions imposed by the Department, and how they outweigh the disadvantages or likely disadvantages of any reduction in competition from the Agreement.

(8) A description of the measures taken to comply with conditions imposed by the Department in issuing the Certificate of Public Advantage, along with an assessment of compliance with, and the effectiveness of, such measures.

(9) Any additional information requested by the Department, the Attorney General or, as appropriate, the mental hygiene agencies.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.10 - Review after issuance of Certificate of Public Advantage

83-2.10 Review after issuance of Certificate of Public Advantage.

(a) The Department shall review each periodic report, application for renewal, and any information submitted in response to a request under this Subpart, and consult with the Attorney General and, as appropriate, the mental hygiene agencies, to determine, based on the factors set forth in section 83-2.5 of this Subpart, whether:

(1) the benefits or likely benefits of the Cooperative Agreement or the planning process continue to outweigh the disadvantages or likely disadvantages that flow from the Cooperative Agreement or planning process; and

(2) the parties to the Cooperative Agreement or planning process are in compliance with the conditions imposed on the Certificate of Public Advantage.

(b) If upon review of a periodic report or application for renewal and any information submitted in response to a request, or at any time following the issuance of a Certificate of Public Advantage, it appears to the Department, in consultation with the Attorney General and, as appropriate, the mental hygiene agencies, that the parties to the Cooperative Agreement or planning process have failed to comply with any condition of the Certificate or that the benefits or likely benefits resulting from a Cooperative Agreement or planning process no longer outweigh the disadvantages or likely disadvantages resulting from the Agreement, the Department shall advise the parties to the Agreement and request any documentation or information necessary to complete a review of the matter.

(c) The parties must supply any additional documentation or information requested by the Department within 30 days, or any other stated time frame, of such request, or must obtain from the Department an extension of the time in which to provide such documentation or information which is requested. Any request for an extension of time shall set forth reasons why such documentation or information could not be obtained within the prescribed time. The granting of a request for an extension shall be at the discretion of the Department. Failure to provide such documentation or information within the time prescribed or as extended by the Department may result in revocation of the Certificate of Public Advantage pursuant to section 83-2.12 of this Subpart.

(d) Following a review of a periodic report, an application for renewal, or of information submitted in response to a request made pursuant to this Subpart, if the Department determines, in consultation with the Attorney General and, as appropriate, the mental hygiene agencies, that the standards set forth in subdivision (a) of this section are satisfied, the Certificate of Public Advantage shall be continued or, if appropriate, renewed.

(e) The Department may, in consultation with the Attorney General and the mental hygiene agencies, as appropriate, at any time following the issuance of a Certificate of Public Advantage, require modifications to the Cooperative Agreement or the planning process and impose changes in the conditions of the Certificate of Public Advantage to promote the goals of Article 29-F of the Public Health Law and assure that the benefits or likely benefits of the Cooperative Agreement or planning process continue to outweigh the disadvantages or likely disadvantages.

(f) The parties shall be notified in writing of the Department's decision and any required modifications to the Cooperative Agreement or planning process and/or changes in the conditions of the Certificate of Public Advantage and shall be given an opportunity to implement any required modifications by a date set by the Department.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.11 - Application for renewal

83-2.11 Application for renewal.

(a) The parties to a Certificate of Public Advantage issued for a definite term may renew such Certificate. An application to renew the Certificate of Public Advantage shall, no later than 120 days prior to the expiration of the Certificate, be submitted to the Department in a format determined by the Department and shall be provided by the Department to the Attorney General and, as appropriate, the mental hygiene agencies.

(b) The application for renewal shall include the information required pursuant to subdivision (b) of section 83-2.9 of this Subpart, unless waived by the Department, and any other information requested by the Department, and shall be accompanied by the fee set forth in section 83-2.4 of this Subpart.

(c) A Certificate of Public Advantage may be renewed pursuant to the procedure set forth in section 83-2.10 of this Subpart for a period determined by the Department, which shall be no less than two years in duration, and shall be subject to active state supervision pursuant to this Subpart.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.12 - Revocation

83-2.12 Revocation.

(a) The Department may revoke, at any time, the Certificate of Public Advantage, if any of the following occur:

(1) the Department, after consultation with the Attorney General and, as appropriate, the mental hygiene agencies, determines that the parties to a Certificate of Public Advantage have not complied with a condition or terms of such Certificate of Public Advantage;

(2) the Department, after consultation with the Attorney General and, as appropriate, the mental hygiene agencies, determines that the benefits or likely benefits of the Cooperative Agreement and the unavoidable costs of terminating the Agreement do not continue to outweigh the disadvantages or likely disadvantages resulting from the Agreement;

(3) the Attorney General or, as appropriate, the mental hygiene agencies, objects to the continuation of a Certificate of Public Advantage and the Department determines, after consultation with the Attorney General and, as appropriate, the mental hygiene agencies, that such objections are not overcome by modifying the Cooperative Agreement or planning process or changing the conditions imposed on the Certificate of Public Advantage. Any modifications or changed conditions must be satisfied by a date set or agreed to by the Department;

(4) the holder of a Certificate of Public Advantage fails to file a report required by this Subpart or fails to provide information requested pursuant to a review under this Subpart, after notice of default; or

(5) a change in state or federal law or regulations warrants revocation of the Certificate of Public Advantage.

(b) Upon a decision to revoke the Certificate of Public Advantage, the Department shall notify the parties to the Certificate of Public Advantage in writing of its determination, and any objections or concerns of the Department that are part of the basis for the determination. The parties to the Certificate of Public Advantage shall have 90 days to respond to such determination, and any objections or concerns. If the objections or concerns are not resolved to the satisfaction of the Department based on its review of such response, the Department may revoke the Certificate.

(c) If the Certificate is revoked, the parties shall be entitled to no benefits under Article 29-F of the Public Health Law and this Subpart, beginning on the date of revocation.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.13 - Hearing rights

83-2.13 Hearing rights.

No Certificate of Public Advantage shall be revoked without affording the applicant an opportunity to request a hearing pursuant to part 51 of this title.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.14 - Voluntary Surrender

83-2.14 Voluntary Surrender.

(a) The parties to a Cooperative Agreement or a planning process may mutually agree to voluntarily surrender their Certificate of Public Advantage. At least 30 days prior to the surrender of the Certificate of Public Advantage, the parties shall file a notice of such decision with the Department. Such notice shall be provided by the Department to the Attorney General and, as appropriate, the mental hygiene agencies.

(b) The termination of the Cooperative Agreement which is the subject of the Certificate of Public Advantage by one or more parties to such Cooperative Agreement shall be considered to result in a voluntary surrender.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.15 - Effect of consultation or recommendations

83-2.15 Effect of consultation or recommendations.

The response and recommendations of the Attorney General, the mental hygiene agencies as appropriate, and the Public Health and Health Planning Council, when sought or required pursuant to any provision of this Subpart, shall be considered by the Department; provided however that such recommendations or the result of such consultation shall not be binding on the Department.

Effective Date: 
Wednesday, December 17, 2014
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Section 83-2.16 - Certificate of need and other requirements

83-2.16 Certificate of need and other requirements.

Nothing in this Subpart shall relieve parties from any responsibility for compliance with laws or regulations governing certificate of need or other approval or notice submission requirements.

Effective Date: 
Wednesday, December 17, 2014
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Part 84 - Attendance Rules For Hospital Teachers

Effective Date: 
Friday, November 19, 1965
Doc Status: 
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Statutory Authority: 
Public Health Law, Section 452; Civil Service Law, Section 136

ATTENDANCE RULES FOR HOSPITAL TEACHERS

Section 84.1 - Purpose

GENERAL PROVISIONS

Section 84.1 Purpose.

The purpose of these rules is to ensure equitable treatment of persons employed in positions the principal duty of which is the teaching or instruction of patients, or the direct supervision of such teaching or instruction, and to provide uniformity in matters of attendance and leave for such persons, insofar as practicable and consistent with the efficient conduct of the department's business, who are employed on the basis of an annual school calendar year adopted by the department which shall be consistent with the school calendar year of public school teachers in New York State.
 

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Section 84.2 - Applicability

84.2 Applicability.

(a) Except as otherwise expressly provided in any rule or rules, these attendance rules shall apply to the following employees in the department who are employed in positions the principal duty of which is the teaching or instruction of patients or the direct supervision of such teaching or instruction, who are employed on the basis of a calendar year similar to the school calendar year of public school teachers in New York State, and who are compensated in accordance with section 136 of the New York State Civil Service Law.

(1) Institution Teachers, G-12

(2) Institution Teachers (T.B.S.), G-13

(3) Senior Institution Teachers, G-15

(4) Senior Institution Teachers (T.B.S.), G-16

(5) Institution Education Supervisors (group of classes), G-17

(b) These rules shall not be construed to require or allow extension of leave with pay except for periods during which the employee is normally paid his regular salary.
 

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Section 84.3 - Suspension of rules

84.3 Suspension of rules.

These rules may be suspended in whole or in part, in an emergency, for the duration of same and to the extent made necessary by the nature of the emergency, on approval by the New York State Civil Service Commission of a written request by the department.
 

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Section 84.4 - Amendment of rules

84.4 Amendment of rules.

These rules may not be amended except on approval by the New York State Civil Service Commission of a written request by the department.
 

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Section 84.5 - Agreement between State and employee organization

84.5 Agreement between State and employee organization.

The provisions of these attendance rules, insofar as they apply to employees in the negotiating units, established pursuant to article 14 of the Civil Service Law, shall be continued; provided, however, that during periods of time when there is in effect an agreement between the State and an employee organization reached pursuant to the provisions of said article 14, the provisions of such agreement and the provisions of such rules shall both be applicable. In the event the provisions of the agreement are different from the provisions of the attendance rules, the provisions of the agreement shall be controlling.
 

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ATTENDANCE

Section 84.10 - Basic workweek

ATTENDANCE

84.10 Basic workweek. The basic workweek: for annual salaried employees of State departments, agencies and institutions, other than those employed on a part-time basis only and other than employees excluded from the application of overtime compensation under the rules of the Director of the Budget adopted pursuant to section 134 of the Civil Service Law, shall be 40 hours; provided, however, that where a shorter workweek would not interfere with the proper performance of government functions an appointing authority may establish a basic workweek of not less than 37-1/2 hours and five days for any employees under its appointive jurisdiction as may be designated by it with the approval of the Division of the Budget; provided, however, that this section shall not be construed to increase the workweek of any employee for whom a workweek of less than 40 hours was prescribed by law, rule or administrative regulation as of January 2, l957.
 

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Section 84.11 - Record of attendance

84.11 Board of attendance.

All employees are required to maintain a daily record of absences and time and leave credits earned and used in accordance with these rules. A daily record of attendance shall be maintained during the period covered by the school calendar and for any periods during which an employee may receive compensation which is in addition to his regular salary.
 

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Section 84.12 - Overtime

84.12 Overtime.

Overtime shall not be earned for time worked in excess of the basic workweek during the 10-month period an employee is paid his regular salary. An employee who is required to work in his position or in any other position allocated to a salary grade in section 130 of the Civil Service Law for the two-month period during which his regular salary is not paid shall receive additional compensation for such service.
 

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ABSENCE WITH PAY

Section 84.15 - Saturdays, Sundays and holidays

ABSENCE WITH PAY
84.15 Saturdays, Sundays and holidays. (a) All Saturdays, Sundays and legal holidays shall, so far as practicable, be allowed as days off. Employees required to work on any of these days shall not be entitled to compensatory time off in lien thereof.
(b) The days prescribed as holidays by the department's annual calendar for the school year shall be observed as holidays.

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Section 84.16 - Absences during school year

84.16 Absences during school year.

Except as provided by these rules and except as provided by the department's annual calendar for the school year, employees shall not be entitled to any leave of absence with pay during the school year; provided, however, that the department may grant time off with pay for religious observance, teacher conferences and other appropriate professional meetings, and for extraordinary or emergency absences. Employees may be required to make up such time off by appropriate adjustments in their daily or weekly work schedules.
 

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Section 84.17 - Sick leave

84.17 Sick leave.

(a) Sick leave is absence with pay necessitated by the illness or disability of the employee including illness or disability caused by pregnancy or childbirth.

(b) Employees shall earn sick leave credits at the rate of one-half day per biweekly pay period during periods they are paid their regular salary and may accumulate such credits up to a total of 150 days; provided, however, that an employee shall not earn sick leave credit for any biweekly pay period unless he is in full pay status for at least seven workdays during such biweekly pay period. A part-time employee who is required to work a fixed number of hours, five days per week, shall also earn sick leave credit as provided herein, but his total pay when absent on such leave shall be the amount which would have been due him had he been working regularly at his usual hours for such period.

(c) An employee absent on sick leave shall notify his supervisor of such absence and the reason therefor on the first day of such absence and within two hours after the beginning of the employee's workday; provided, however, that where the work is such that a substitute may be required, the department may require earlier notification, but not more than two hours prior to the beginning of the employee's workday. An employee who fails to so notify his supervisor may be deemed to be on leave without pay for that day. Sick leave credits shall not be used in units of less than one-half hour.

(d) Before absence for personal illness may be charged against accumulated sick leave credits, the department may require such proof of illness as may be satisfactory to it, or may require the employee to be examined, at the expense of the department, by a physician designated by the department. In the event of failure to submit proof of illness upon request, or in the event that, upon such proof as is submitted or upon the report of medical examination, the department finds that there is not satisfactory evidence of illness sufficient to justify the employee's absence from the performance of his duties, such absence may be considered as unauthorized leave and shall not be charged against accumulated sick leave credits. Abuse of sick leave privileges shall be cause for disciplinary action.

(e) The department may require an employee who has been absent because of personal illness, prior to and as a condition of his return to duty, to be examined, at the expense of the department, by a physician designated by the department, to establish that he is not disabled from the performance of his normal duties and that his return to duty will not jeopardize the health of other employees.

(f) In addition to personal illness of the employee, the following types of absence, when approved by the department, may be charged against accumulated sick leave credits: illness or death in the employee's family, provided, however, that charge for such absence shall not exceed a maximum of 15 days in any one school year; and personal visits to doctor or dentist. Proof of the need for such absences, satisfactory to the department, may be required.

(g) When an employee is transferred to another position in the same or a different department or agency and such position is subject to attendance rules approved by the New York State Civil Service Commission, his accumulated sick leave credits shall be transferred with him. When an employee is separated from service for other than disciplinary reasons and is subsequently reinstated or reemployed within one year after such separation, or is reinstated by action of the State Civil Service Commission, or is reinstated or reemployed while eligible for reinstatement from a preferred list, his sick leave credits accumulated and unused at the time of his separation shall be restored; provided, however, that such sick leave credits shall not be restored except when leave records satisfactory to the appointing authority are available.

(h) Every employee shall, on the date on which he becomes subject to these rules, be credited with the number of days of sick leave which he had accumulated under the Attendance Rules for Employees in New York State Departments and Institutions (see 4 NYCRR Chapter II) and had remaining to his credit as of such date.

(i) This section shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate by operation of law, rule or regulation.
 

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Section 84.18 - Extended sick leave

84.18 Extended sick leave.

(a) The department may, in its discretion, advance sick leave credits to an employee absent due to personal illness who has exhausted his accumulated sick leave credits. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty, from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to any employee under the provisions of this section shall not at any time exceed a total of five days.

(b) Upon termination of the employee's services any such advance of sick leave not offset by subsequent accumulations of sick leave credits, shall be deducted from salary or wages due the employee.
 

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Section 84.19 - Sick leave at half pay

84.19 Sick leave at half pay.

The department may, in its discretion, grant sick leave at half pay for personal illness to a permanent employee having not less than a year of service after all of his sick leave credits have been used; provided, however, that the cumulative total of all sick leave at half pay granted to any employee after January 2, 1957, shall not exceed one pay period for each complete six months of his State service
 

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Section 84.20 - Workmen's compensation leave

84.20 Workmen's compensation leave.

(a) Leave or absence necessitated by occupational injury or disease. Except as otherwise provided in subdivision (b) and (c) hereof, an employee necessarily absent from duty because of occupational injury or disease as defined in the Workmen's Compensation Law, upon giving notice to the department that he is absent on account of such injury or disease and that he claims benefits under such law, shall be allowed leave from his position for the period of absence necessitated by such injury or disease, up to cumulatively one year including any periods of such absence during which the employee draws sick leave credits. Such leave may be extended for further periods in the discretion of the appointing authority.

(b) Controverted cases. If the employee's claim for benefits under the Workmen's Compensation Law is controverted by the State Insurance Fund (at the request of the department or on its own initiative) and the department is so notified, the employee shall not be entitled to leave under this section. This shall not, however, adversely affect the employee's eligibility for leave under other provisions of these rules. If final determination of the controverted claim is in favor of the employee, he shall be entitled to leave under this section, and all absences before such final determination, to the extent that the same were necessitated by his occupational injury or disease, shall be deemed to have been pursuant to leave under this section.

(c) Permanent incapacity. Leave under this section may be withheld or terminated if the department determines that the occupational injury or disease suffered by the employee is of such a nature as to permanently incapacitate him for the performance of the duties of his position.

(d) Pay during leave. An employee on leave under this section may receive pay, as follows:

(1) The department upon finding that the employee is in fact disabled from the performance of his duties, may grant the employee full pay during such leave not exceeding cumulatively six months. Such full pay may be granted irrespective of the employee's accrued credits under these rules.

(2) Except when on full pay status under paragraph (1) of this subdivision, the employee may draw accrued sick leave credits, subject to the provisions of these rules pertaining thereto.

(3) If not drawing full pay under paragraph (1) or paragraph (2) of this subdivision, an employee may, in the discretion of the department, be allowed to draw sick leave at half pay for which he may be eligible under these rules.

(e) Accrual of leave credits. An employee who receives full pay for any period of leave under this section shall earn sick leave credits during such period.

(f) Award credited to State. An award by the Workmen's Compensation Board of compensation for any period for which the employee receives or received pay from the State shall be credited to the State as reimbursement of wages paid.

(g) Restoration of leave credits. Sick leave credits, including sick leave at half pay, used by an employee during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid shall be restored to him in full; provided, however, that no restoration shall be made for any absence of less than a full day. Credits so restored may not again be used for future absences attributable to the same injury. An employee restored to service after absence on leave under this section shall have one year from the date of such restoration to reduce his accrued leave credits to the limits prescribed in these rules.

(h) Reinstatement. Upon request of the employee for reinstatement at or prior to the expiration of the maximum period of allowed leave, the department, if in doubt as to whether the employee is physically and mentally fit to perform the duties of his position, may require the employee to undergo medical examination, by a physician designated by the department, before the employee may be reinstated. If reinstatement is denied, the employee may make application therefor in the manner prescribed by section 71 of the Civil Service Law. If an employee continues absent after the expiration of the maximum period of allowed leave, his eligibility for reinstatement shall be governed by section 71 of the Civil Service Law.

(i) Medical examination. In order to enable the department to make such determinations as are authorized or required under this section, the department may rule an employee at any time to be examined by a physician designated by the department.

(j) Where the department has refused to grant the employee pay during leave pursuant to subdivision (d) above or has withheld or terminated a leave of absence on ground that the occupational injury or disease is of such a nature as to permanently incapacitate the employee for the performance of the duties of his position, the employee may request the Civil Service Commission to review the determination of the department. If the commission finds that such determination of the department is arbitrary or unreasonable, it may reverse or modify such determination. (k) Construction. This section shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate.
 

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Section 84.21 - Leave for subpoenaed appearance and jury attendance

84.21 Leave for subpoenaed appearance and jury attendance.

On proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this section shall not apply to any absence by an employee occasioned by such an appearance if he is a party.
 

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Section 84.22 - Leave for civil service examinations

84.22 Leave for civil service examinations.

Employees shall be allowed leave with pay to take New York State Civil Service examinations at the appropriate center provided that due notice is given by the employee to the department.
 

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Section 84.23 - Leave for quarantine

84.23 Leave for quarantine. If an employee who is not ill himself is required to remain absent because of quarantine and presents a written statement of the attending physician or local health officer proving the necessity of such absence, he shall be granted leave with pay for the period of his required absense, without charge against accumulated sick leave credits. Prior to return to duty, such employee may be required to submit a written statement from the local health officer having jurisdiction that his return to duty will not jeopardize the health of other employees.
 

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Section 84.24 - Leaves required by law

84.24 Leaves required by law. The department shall grant any leave of absence, with pay, required by law.

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Section 84.25 - Leave for civil defense duties

Leave for civil defense duties. Upon certification by the State Director of Civil Defense of the necessity for the participation in State or local civil defense drills of an employee enrolled as a civil defense volunteer and required to perform civil defense duties pursuant to the State Defense Emergency Act, the department may allow such employee to absent himself from his position, without loss of pay or charge against leave credits, for such time as is necessary for participation in such drills, but not exceeding cumulatively five work days per calendar year.

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LEAVES WITHOUT PAY

Section 84.30 - Leave of absence; duration

84.30 Leave of absence; duration

(a) A permanent employee or an employee holding a position by permanent or temporary appointment who requests leave because of pregnancy or childbirth may, in the discretion of the department, be granted a leave of absence from his position, without pay, for a period not exceeding two years. Such leave may be extended beyond two years, for periods aggregating not in excess of an additional two years, only with the approval of the Civil Service Commission. In an exceptional case, a further extension may be permitted by the commission for good cause shown and where the interests of the government would be served. For the purposes of this section, time spent in active service in the military forces of the United States or of the State of New York shall not be considered in computing the period of leave.
 

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Section 84.31 - Successive leaves of absence

84.31 Successive leaves of absence. Where a leave of absence without pay has been granted for a period which aggregates two years, or more if extended pursuant to section 84.30 of this Part, a further leave of absence without pay shall not be granted unless the employee returns to his position and serves continuously therein for six months immediately preceding the subsequent leave of absence.

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Part 85 - Medical Assistance Benefits

Effective Date: 
Wednesday, February 13, 2013
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Statutory Authority: 
Public Health Law, Sections 576, 2164, 2500-a, 2522(6), 2528, 2803, 2904, 2904-b, 3612(6), 4175; Social Services Law, Sections 364(2), 365-a, 365-a(4); Education Law, Section 6816(2)

LIMITATIONS ON HOSPITALIZATION INCLUDING SURGERY

Section 85.1 - Emergency or urgent surgery

LIMITATIONS ON HOSPITALIZATION, INCLUDING SURGERY

Section 85.1 Emergency or urgent surgery. (a) To be a covered benefit under medical assistance for the needy as provided in section 365-1(5)(a) of the Social Services Law, any emergency or urgent surgery shall be for alleviation of severe pain or for the immediate diagnosis and/or treatment of conditions which threaten disability or death if not promptly diagnosed or treated. No such emergency or urgent surgery requires prior determination of coverability.

In each case, a person designated by the Commissioner of Health shall determine coverability of this benefit based upon the documented existence of one or more conditions such as the following:

(1) obstetrical crises and/or labor;

(2) acute trauma;

(3) reparative or reconstructive surgical procedures performed within 60 days of acute trauma;

(4) malignancy, confirmed or suspected;

(5) hemorrhage or threat of hemorrhage;

(6) serious infection;

(7) severe pain;

(8) shock or impending shock;

(9) decompensated vital functions or threat to vital functions such as sensorium, respiration, circulation, excretion and sensory organs;

(10) congenital defects or abnormalities in a newborn infant best managed by prompt intervention;

(11) any condition the management of which requires prompt diagnostic procedures necessarily performed on an inpatient basis such as biopsy and endoscopy; or

(12) any other condition which causes severe pain or threatens disability or death if not promptly diagnosed or treated.

(b) The first three days of inpatient care, services and supplies for persons admitted to inpatient hospital care under this section shall be deemed a covered benefit under medical assistance for the needy. To be a covered benefit after the third day of inpatient care, there shall be a determination of benefit coverability prior to the end of the third day by a person designated by the Commissioner of Health. Such initial determination shall be for a specified period of time not to exceed the 50th percentile of length of stay norms for comparable patients which have been authorized by the Commissioner of Health or the 20th day of stay, whichever is less. If the stay is for rehabilitation of physical disability as described in section 85.5(a) of this Part, such specified period of time shall not exceed the 40th day of stay. Determination of coverability shall be based upon the existence of one or more conditions such as those listed in subdivision (a) of this section which can be treated only on an inpatient hospital basis, as documented in the patient's medical record. Subsequent to this initial determination of coverability, extensions of benefit coverability shall be subject to length of stay limitations of sections 85.5 and 85.7 of this Part.

(c) Determination of benefit coverability under this section shall be made by a designated physician or nonphysician under a designated physician's supervision. A determination of noncoverability shall be made only by a designated physician. If such determination of noncoverability is made, any care, supplies or services provided beyond three days shall not be a covered benefit under medical assistance for the needy.

(d) Notice of determination shall be given to the patient's surgeon, the hospital administrator and, if there is a determination of noncoverability, to the patient. The hospital shall keep any such notification on file, accessible for review by representatives of the State or of the local social services district. The patient's surgeon or hospital administrator may, within three days of the date of such notification, appeal a determination of noncoverability in writing to the physician or physicians designated by the commissioner for such purpose. Notification of the decision on appeal shall be given to the patient's surgeon, the hospital administrator and the patient. If the determination of noncoverability is affirmed on appeal, any inpatient hospital care, supplies or services provided beyond three days shall not be a covered benefit.

(e) If the person designated by the Commissioner of Health decides in the course of making determinations of coverability under this section or it is determined from other sources that a physician, physicians or the hospital are admitting patients under this section for medical conditions which are not for alleviation of severe pain or for the immediate diagnosis and/or treatment of conditions which threaten disability or death if not promptly diagnosed or treated, the designated person shall give written notification to the physician(s) and the hospital that if such admissions continue, the initial three-day period of stay will no longer be deemed a covered benefit. If patients are thereafter admitted for medical conditions which are not for the aforesaid purposes, the designated person shall notify the physician(s) and the hospital that to be a covered benefit, the first three days of inpatient stay will be subject to a determination of coverability. Such determination of coverability shall be made prior to the end of the third day of inpatient hospital stay in accordance with the procedures in subdivisions (a), (b), (c) and (d) of this section. If there is a determination of non-coverability, any inpatient hospital care, supplies or services provided shall not be a covered benefit under medical assistance for the needy.

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Section 85.2 - Standards for surgical intervention

85.2 Standards for surgical intervention.

(a) To be covered benefit under medical assistance for the needy as provided in section 365-a(b)(5) of the Social Services Law, specified surgical procedures shall meet the standards for intervention established in this section. The specified procedures are:

(1) cataract surgery to restore vision.

(2) eye muscle surgery to correct strabismus and to prevent functional loss when binocular vision still exists.

(3) myringotomy, with or without tube insertion to preserve hearing.

(4) tubal ligation or vasectomy to interdict conception.

(5) termination of pregnancy.

(b) The patient's surgeon shall ensure that the applicable standards for any of the specific procedures specified in subdivision (a) of this section are met and documented within the hospital medical record of the patient. Such medical record shall be accessible to the commissioner, or his designee, for review.

(c) The first three days of inpatient care, services and supplies for persons admitted to inpatient hospital care under this section shall be deemed a covered benefit under medical assistance for the needy. To be a covered benefit after the third day of inpatient care, there shall be a determination of benefit coverability prior to the end of the third day by a person designated by the Commissioner of Health. Such initial determination shall be for a specified period of time not to exceed the 50th percentile of length of stay norms for comparable patients which have been authorized by the Commissioner of Health or the 20th day of stay, whichever is less. If the stay is for rehabilitation of physical disability as described in section 85.5(a) of this Part, such specified period of time shall not exceed the 40th day of stay. Determination of coverability shall be based upon the performance of one or more of the procedures which meet the standards for surgical intervention listed in subdivision (a) of this section and the need for treatment on an inpatient hospital basis as documented in the patient's medical record. Subsequent to this initial determination of coverability, extensions of benefit coverability shall be subject to length of stay limitations of sections 85.5 and 85.7 of this Part.

(d) A determination of benefit coverability under this section shall be made by a designated physician or non-physician under a designated physician's supervision. A determination of non-coverability shall be made only by a designated physician. If such non-coverability determination is made, any care, supplies or services provided beyond three days shall not be a covered benefit under medical assistance for the needy.

(e) Notice of determination shall be given to the patient's surgeon, the hospital administrator and, if there is a determination of non-coverability to the patient. The hospital shall keep any such notification on file, accessible for review by representatives of the State or the local social services district. The patient's surgeon or hospital administrator may within three days of the date of such notification, appeal a determination of non-coverability in writing to the physician or physicians designated by the commissioner for such purpose. Notification of decision on appeal shall be given to the patient's surgeon, the hospital administrator and the patient. If the determination of non-coverability is affirmed on appeal, any inpatient care, supplies or services provided beyond three days shall not be a covered benefit.

(f) If the person designated by the Commissioner of Health decides in the course of making determinations of coverability under this section or it is determined from other sources that a physician, physicians or the hospital are admitting patients under this section for the performance of procedures which do not meet the standards established in this section, the designated person shall give written notification to the physician(s) and the hospital that if such admissions continue, the initial three day period of stay will no longer be deemed a covered benefit. If patients are thereafter admitted for medical conditions which do not meet the standards established in this section to be a covered benefit, the designated person shall notify the physician(s) and the hospital that the first three days of inpatient stay will be subject to a determination of coverability. Such determination of coverability shall be made prior to the end of the third day of inpatient hospital stay in accordance with the procedures in subdivisions (a) through (e) of this section. If there is a determination of non-coverability, any inpatient hospital care, supplies or services provided shall not be a covered benefit under medical assistance for the needy.
 

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Section 85.3 - Deferrable surgery

85.3 Deferrable surgery.

(a) To be a covered benefit under medical assistance for the needy as provided in section 365-a(5)(c) of the Social Services Law, any surgery not coverable as emergency or urgent surgery under section 365-a(5)(a) or which does not meet standards for surgical intervention under section 365-a(5)(b) shall require a determination of coverability by a person designated by the Commissioner of Health prior to admission. A determination of coverability shall be based on the likelihood that deferral of the proposed surgery for six months or more may jeopardize life or essential function, or cause severe pain.

(b) A determination of coverability shall be for a specified period of time not to exceed the 50th percentile of length of stay norms for comparable patients which have been authorized by the commissioner or the 20th day of stay, whichever is less. If the stay is for rehabilitation of physical disability as described in section 85.5(a) of this Part, such specified period of time shall not exceed the 40th day of stay. Subsequent to this initial determination of coverability, extensions of benefit coverability shall be subject to length of stay limitations of sections 85.5 and 85.7 of this Part.

(c) The required determination of coverability shall be initiated by written request from the proposing surgeon, with information adequate for making the determination. A determination of coverability shall be made by a designated physician or non-physician under supervision of a designated physician. A determination of non-coverability shall be made only by a physician.

(d) Prior to making a determination, the designated person may require a written second opinion from a qualified specialist designated by the Commissioner of Health. A written second opinion shall be based upon an examination of the patient and a review of information about the patient provided by the proposing surgeon. A second written opinion under this section shall in every instance be required for the following surgical procedures except when performed as urgent or emergency surgery as set forth in this Part, or when not required under the provisions of the physically handicapped children's program:

(1) tonsillectomy and/or adenoidectomy.

(2) herniorrhapy.

(3) hemorrhoidectomy.

(4) hysterectomy.

(5) cholecystectomy.

(6) spinal fusion or laminectomy.

(7) joint cartilage surgery.

(e) If, in any area, reasonable patient access to specialists designated to give second opinion is lacking, the Commissioner of Health may provide for other mechanisms to assist his designee in making determination of coverability.

(f) A written second opinion may be required by the department for any deferrable surgery to be performed within specific hospitals or by specific surgeons when review reveals unusual, aberrant or questionable practices, or practices not in conformity with provisions of this section.

(g) Notice of determination shall be given to the proposing surgeon who shall, if coverability is determined, incorporate such notice in the hospital record at admission.

(h) The proposing surgeon may appeal any determination of non-coverability to a physician or physicians designated by the Commissioner of Health for such purpose. Notification of decision on appeal shall be given to the proposing surgeon who shall incorporate any notice of determination of coverability in the hospital record at admission.

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Section 85.4 - One-day presurgical stay limitation

85.4 One-day presurgical stay limitation.

(a) To be a covered benefit under medical assistance for the needy, provided in section 365-a(5)(d) of the Social Services Law, any presurgical hospital stay of more than one day for surgical benefits covered by sections 365-a(5)(b) and 365-a(5)(c) shall require a determination of coverability prior to admission by a person designated by the Commissioner of Health. Such determination of coverability shall be for a specified maximum period of presurgical stay. A written request for such determination shall be made by the patient's surgeon, proposing the total length of presurgical stay, and citing conditions requiring such exceptional stay. A determination of coverability shall be based upon existence of conditions which require inpatient preparation of more than one day to improve operative risk status such as:

(1) correction of significant fluid or electrolyte imbalance.

(2) transfusion to correct significant anemia.

(3) stabilization of congestive heart failure.

(4) improvement of pulmonary function or drainage.

(5) hyperalimentation to correct significant malnutrition.

(6) gastrointestinal preparation before gastrointestinal surgery.

(7) stabilization of significant endocrine disorder.

(8) hematologic and immunologic preparation for organ transplant.

(9) management of infection.

(10) essential preliminary studies and procedures performable only on an inpatient basis.

(b) Determination of coverability shall be made by a designated physician or non-physician under physician supervision. A determination of non-coverability shall be made only by a designated physician. Notice of determination shall be given to the patient's physician who shall, in case of extended coverability, incorporate such notice in the patient's medical record at admission. No presurgical stay of more than one day will be a covered benefit without such prior determination of coverability and its incorporation in the patient's medical record.

(c) The patient's physician may appeal any determination of non-coverability to a physician or physicians designated by the commissioner for such purpose. Notification of decision on appeal shall be given to the patient's physician, who shall incorporate such notification in the patient's medical record at admission.
 

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LIMITATION ON HOSPITAL STAY

Section 85.5 - Limitation on hospital stay

LIMITATION ON HOSPITAL STAY

85.5 Limitation on hospital stay.

(a) To be a covered benefit under medical assistance for the needy as provided in section 365-a(2)(b) of the Social Services Law, any hospital stay beyond 20 days per spell of illness, except for rehabilitation care as hereinafter provided, during which all or any part of the cost of such care, services and supplies are claimed as items of medical assistance shall require a prior determination of coverability by a person designated by the Commissioner of Health. Any hospital stay for care under an established plan for rehabilitation of physical disability in a rehabilitation hospital or rehabilitation unit, beyond 40 days shall require such prior determination of coverability. A written request for such determination shall be made by the patient's physician. Such request shall include evidence documented in the patient's medical record showing that in order to preserve life or to prevent substantial risk of continuing disability, an additional period of care is required of such complexity or intensity that it can be provided only in a hospital. Care of such complexity or intensity shall include, but not be limited to:

(1) severe burns requiring continued therapy in a burns unit.

(2) continuing cardiovascular, renal or pulmonary decompensation requiring care in a coronary care unit, intensive care unit, pulmonary care unit or other acute care setting in the hospital.

(3) central nervous system damage with threatened or impaired consciousness.

(4) persistent fever or serious infection.

(5) persistent hemorrhage or threat of recurrent hemorrhage.

(6) life threatening conditions including malignancy when chemotherapy, radiotherapy or other therapy can be provided and monitored effectively only in a hospital.

(7) conditions requiring physical rehabilitation under an established rehabilitation plan when such treatment can be carried out only in a hospital setting.

(b) Such request for determination of coverability for continued care shall be made before the 20th but not before the 16th day of stay. The determination of coverability shall be for an additional period not to exceed 10 days after the 20th day of stay. Determination of coverability shall be made for additional periods of stay not to exceed 10 days each pursuant to written requests submitted as aforesaid prior to expiration of the last period for which there has been a determination of coverability.

(c) In the case of care under an established plan for rehabilitation of physical disability referred to in subdivision (a) of this section, the request for extended coverability determination shall be made before the 40th but not before the 36th day of stay, and determination of coverability shall not exceed 20 days for the initial additional period of stay and for any additional period thereafter.

(d) Spell of illness, for the purpose of this section, shall begin on the first day of hospital care and shall end 60 days following discharge from the hospital inpatient service. Except in case of emergency or urgency, readmission during said 60 day period shall be subject to the prior approval of the commissioner's designee upon a showing of necessity to preserve life or to prevent substantial risk of disability.

(e) A determination of coverability may be granted by a designated physician or non-physician under the supervision of a physician. A determination of noncoverability shall be made only by a designated physician. Notice of determination shall be given to the patient's physician, the hospital administrator, and if there is a determination of noncoverability to the patient. A written record of determinations made of such coverability or noncoverability shall be entered in the hospital records and made available for review.

(f) The patient's physician or hospital administrator may, within three days of the date of such notification, appeal such determination of noncoverability in writing to the physician or physicians designated by the Commissioner of Health for such purpose. Notification of decision on appeal shall be given to the patient's physician, the hospital administrator and the patient. If there is a determination of noncoverability or such determination of noncoverability is affirmed on appeal, any inpatient hospital care, services or supplies provided during the additional period of stay requested shall not be a covered benefit under medical assistance for the needy.
 

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Section 85.6 - Admissions and hospital stays

85.6 Admissions and hospital stays.

(a) Inpatient hospital admissions which do not require a determination of benefit coverability under sections 85.1 through 85.4 of this Part and except for admissions under subdivision (f) of this section shall be deemed a covered benefit under medical assistance for the needy as provided in section 365-a(2)(b) of the Social Services Law for the first three days of inpatient hospital care. To be a covered benefit after the third day of inpatient hospital care, there shall be a determination of benefit coverability prior to the end of the third day by a person designated by the Commissioner of Health. Such determination shall be for a specified period of time not to exceed the 50th percentile of length of stay norms for comparable patients which have been authorized by the Commissioner of Health or the 20th day of stay, whichever is less. If the stay is for rehabilitation of physical disability as described in subdivision (a) of section 85.5 of this Part, such specified period of time shall not exceed the 40th day of stay. Determination of coverability shall be based upon existence of medical conditions which can be treated only on an inpatient hospital basis, as documented in the patient's medical record. Subsequent to this initial determination of coverability, extensions of benefit coverability shall be subject to length of stay limitations of sections 85.5 and 85.7 of this Part.

(b) A determination of benefit coverability under this section shall be made by a designated physician or nonphysician under a designated physician's supervision. A determination of noncoverability shall be made only by a designated physician. If such determination of noncoverability is made, any inpatient hospital care, supplies or services provided beyond three days shall not be a covered benefit under medical assistance for the needy.

(c) Notice of determination shall be given to the patient's physician, the hospital administrator and, if there is a determination of noncoverability, to the patient.

(d) The patient's physician or hospital administrator may, within three days of the date of such notification, appeal a determination of noncoverability in writing to the physician or physicians designated by the commissioner for such purpose. Notification of the decision on appeal shall be given to the patient's physician, the hospital administrator and the patient. If determination of noncoverability is affirmed on appeal, any inpatient hospital care, supplies or services provided beyond three days shall not be a covered benefit under medical assistance for the needy.

(e) If the person designated by the Commissioner of Health decides in the course of making determinations of coverability under this section or it is determined from other sources that a physician, physicians or the hospital are admitting patients for medical conditions which can be treated on other than an inpatient hospital basis, the designated person shall give written notification to the physician(s) and the hospital that if such admissions continue, the initial three-day period of stay will no longer be deemed a covered benefit. If patients are thereafter admitted for medical conditions which can be treated on other than an inpatient hospital basis, the designated person shall notify the physician(s) and the hospital that to be a covered benefit, the first three days of inpatient stay will be subject to a determination of coverability. Such determination of coverability shall be made prior to the end of the third day of inpatient hospital stay in accordance with the procedures in subdivisions (a) through (d) of this section. If there is a determination of noncoverability, any inpatient hospital care, supplies or services provided shall not be a covered benefit under medical assistance for the needy.
(f)(1) During such period of time as sections 85.2 and 85.3 of this Part do not apply, all surgery, other than emergency or urgent surgery, within "medical assistance" as defined in section 365-a of the Social Services Law, shall require a determination of coverability by a person designated by the Commissioner of Health prior to admission. A determination of coverability shall be based on a finding that the proposed surgery can be performed properly only on an inpatient hospital basis.
(2) A determination of coverability shall be for a specified period of time not to exceed the 50th percentile of length of stay norms for comparable patients which have been authorized by the commissioner or the 20th day of stay, whichever is less. If the stay is for rehabilitation of physical disability as described in section 85.5(a) of this Part, such specified period of time shall not exceed the 40th day of stay. Subsequent to this initial determination of coverability, extensions of benefit coverability shall be subject to length of stay limitations of sections 85.5 and 85.7 of this Part. (3) The required determination of coverability shall be initiated by written request from the proposing surgeon, with information adequate for making the determination. A determination of coverability shall be made by a designated physician or nonphysician under supervision of a designated physician. A determination of noncoverability shall be made only by a physician.
(4) Notice of determination shall be given to the proposing surgeon who shall, if coverability is determined, incorporate such notice in the hospital record at admission.
(5) The proposing surgeon may appeal any determination of noncoverability to a physician or physicians designated by the Commissioner of Health for such purpose. Notification of decision on appeal shall be given to the proposing surgeon who shall incorporate any notice of determination of coverability in the hospital record at admission.
(6) Admissions and hospital stays solely for the purpose of performing any procedure which may be performed on an outpatient basis, as defined in paragraph (7) of this subdivision, shall not be included as inpatient care in a hospital or care in a hospital-based ambulatory surgery service or a free-standing ambulatory surgery center for purposes of coverability of benefits except that a determination of coverability may be made by a person designated by the Commissioner of Health when the medical condition of the individual patient requires that such procedure be performed on an inpatient basis in a hospital or as care in a hospital-based ambulatory surgery service or a free-standing ambulatory surgery center. For inpatient hospital, hospital-based ambulatory surgery service and free-standing ambulatory surgery center admissions for certain surgical procedures, as defined in paragraph (7) of this subdivision there shall be a determination prior to admission of the specified period of coverability as provided for in this subdivision, except for emergency admissions for which the determination of the period of coverability shall be made as soon after admission as feasible.
(7) A procedure which may be performed on an outpatient basis ("outpatient procedure"), is a diagnostic test or treatment, including certain surgical procedures, that carries a low patient risk, requires minimal pre- and post-procedure observation and treatment, is not likely to be time consuming or followed by complications, and is not associated with a condition which would require hospitalization. Column (1) lists "The International Classification of Diseases, 9th Revision, Clinical Modification" (ICD-9-CM) procedure codes for outpatient surgery and column (2) below lists the outpatient surgical (ICD-9-CM) procedure names. Such outpatient procedures include, but are not limited to, the following:
(1) (2)
ICD-9-CM Procedure Code ICD-9-CM Procedure Name
(i) 3.31 Spinal tap (ii) 8.09 Other eylid incision (iii) 8.11 Eyelid biopsy (iv) 8.20 Removal of lesion of eyelid, NOS (v) 8.21 Excision of chalazion (vi) 8.22 Excision of other minor lesion of eyelid (vii) 8.41 Repair entrop/ectro-thermocauterization (viii) 8.42 Repair entrop/ectro. by suture tech. (ix) 8.52 Blepharorrhaphy (x) 18.09 Other incision of external ear (xi) 18.21 Excision of preauricular sinus (xii) 18.29 Excis./destruct. of other lesion ext. ear (xiii) 20.09 Other myringotomy (xiv) 21.21 Rhinoscopy (xv) 21.22 Biopsy of the nose (xvi) 21.30 Excis./destruct. of lesion-nose, NOS (xvii) 21.31 Local excsn./destruct.-intranasal lesion (xviii) 21.32 Local excsn./destruct.-other lesion of nose (xix) 21.61 Turbinectomy by diathermy or cryosur (xx) 21.69 Other Turbinectomy (xxi) 23.01 Forceps extraction of deciduous tooth (xxii) 23.09 Forceps extraction of other tooth (xxiii) 23.11 Surgical removal of residual root (xxiv) 23.19 Other surgical extraction of tooth (xxv) 23.20 Restoration of tooth by filling (xxvi) 23.30 Restoration of tooth by inlay (xxvii) 23.41 Application of crown (xxviii) 23.42 Insertion of fixed bridge (xxix) 23.43 Insertion of removable bridge (xxx) 23.49 Other dental restoration (xxxi) 23.50 Implantation of tooth (xxxii) 23.60 Prosthetic dental implant (xxxiii) 23.70 Root canal, NOS (xxxiv) 23.71 Root canal therapy with irrigation (xxxv) 23.72 Root canal therapy with apicoectomy (xxxvi) 23.73 Apicoectomy (xxxvii) 24.00 Incision of gum or alveolar bone (xxxviii) 24.11 Biopsy of gum (xxxix) 24.12 Biopsy of alveolus (xl) 24.19 Other diag. proc. on teeth, gums (xli) 24.20 Gingivoplasty (xlii) 24.31 Excison of lesion of tissue of gum (xliii) 24.32 Suture of laceration of gum (xliv) 24.39 Other operations on gum (xlv) 24.40 Excision of dental lesion of jaw (xlvi) 24.50 Alveoloplasty (xlvii) 24.60 Exposure of tooth (xlviii) 24.70 Application of orthodontic appliance (xlix) 24.80 Other orthodontic operation (l) 24.91 Extension or deepening of buc. sulcus (li) 24.99 Other dental operations (lii) 25.02 Open biopsy of tongue wedge biopsy (liii) 25.10 Excisn./destuctn lesion/tissue tongue (liv) 27.43 Other excision of lesion/tissue lip (lv) 27.49 Other excision of mouth (lvi) 27.59 Other plastic repair of mouth (lvii) 31.42 Laryngoscopy and other tracheoscopy (lviii) 45.24 Flexible sigmoidoscopy (lix) 48.23 Rigid Proctosigmoidoscopy (lx) 48.25 Open biopsy of rectum (lxi) 49.23 Anal biopsy (lxii) 49.30 Loc. excsn./dest. oth. lesion/tissue of anus (lxiii) 49.45 Hemorrhoid ligation (lxiv) 49.47 Evacuation of thrombosed hemorrhoid (lxv) 56.91 Ureteral meatus dilation (lxvi) 57.19 Other cystostomy (lxvii) 57.32 Other cystoscopy (lxviii) 57.33 Closed (transur) biopsy of bladder (lxix) 57.94 Insertion of indwelling urinary cath (lxx) 57.95 Replacement-indwelling urinary cath (lxxi) 58.10 Urethral meatotomy (lxxii) 59.80 Urethral catheterization (lxxiii) 83.21 Biopsy of soft tissue (lxxiv) 86.04 Other incsn w/drainage of skin/ subcu. tissue (lxxv) 86.11 Biopsy of skin & subcutaneous tissue (lxxvi) 86.22 Excision debrid of wound infection or burn (lxxvii) 86.23 Removal of nail, nailbed, nail fold (lxxviii) 86.25 Dermabrasion (lxxix) 86.59 Suture skin/subcut. tissue of other sites (lxxx) 88.66 Phlebography - femoral, other lower extrm vein material (lxxxi) 89.26 Gynecological examination (lxxxii) 97.71 Remove intrauterine contraceptive device (8) Admissions and hospital stays solely for the purpose of performing any procedure which may be performed on an ambulatory surgery basis as defined in paragraph (9) of this subdivision, shall not be included as inpatient care in a hospital for purposes of coverability of benefits except that a determination of coverability may be made by a person designated by the Commissioner of Health when the medical condition of the individual patient requires that such procedure be performed on an inpatient basis in a hospital. For inpatient hospital admissions for procedures listed in paragraph (9) of this subdivision, there shall be a determination prior to admission of the specified period of coverability as provided for in this subdivision, except for emergency admissions for which the determination of the period of coverability shall be made as soon after admission as feasible.
(9) A procedure which may be performed on an ambulatory surgery basis ("ambulatory surgery procedure"), is a diagnostic test, treatment, or procedure which shall be performed for safety reasons in an operating room on anesthetized patients requiring a stay of less than 24 hours' duration. These procedures do not include outpatient office or outpatient treatment room procedures as defined in and covered by paragraph (7) of this subdivision. Column (1) below lists the "The International Classification of Diseases, 9th Revision, Clinical Modification" (ICD-9-CM) procedure names for ambulatory surgical procedures and Column (2) lists the ICD-9-CM procedure codes for ambulatory surgical procedures for which prior approval is necessary for inpatient hospital admission, except for emergency admissions for which the determination of the period of coverability shall be made as soon after admission as feasible. Such ambulatory surgery procedures include, but are not limited to the following:
(1) (2)
ICD-9-CM Procedure Named ICD-9-CM Procedure Codes
(i) spinal tap 03.31
(ii) other excision or avulsion of cranial and peripheral nerves 04.07
(iii) release of carpal tunnel 04.43
(iv) other peripheral nerve or ganglion decompression or lysis of adhesion 04.49
(v) excision of pterygium 11.39
(vi) intracapsular extraction of lens by temporal inferior route 13.11
(vii) other intracapsular extraction of lens 13.19
(viii) extracapsular extraction of lens by simple aspiration (and irrig.) technique 13.3
(ix) extracapsular extraction of lens by temporal inferior route 13.51
(x) other extracapsular extraction of lens 13.59
(xi) insertion of pseudophakos, NOS 13.70
(xii) insertion of intraocular lens prosthesis at cataract extraction, 1-stage 13.71
(xiii) secondary insertion of intraocular lens prosthesis 13.72
(xiv) recession of one extraocular muscle 15.11
(xv) advancement of one extraocular muscle 15.12
(xvi) resection of one extraocular muscle 15.13
(xvii) other operation on one extraocular muscle involving temporary detachment from globe 15.19
(xviii) lengthening procedure on one extraocular muscle 15.21
(xvix) shortening procedure on one extraocular muscle 15.22
(xx) other operations on one extraocular muscle 15.29
(xxi) operations on two or more extraocular muscles involving temporary detachment from globe, one or both eyes 15.3
(xxii) excision or destruction of other lesion of ext. ear 18.29
(xxiii) myringotomy with insertion of tube 20.01
(xxiv) other myringotomy 20.09
(xxv) submucous resection of nasal septem 21.5
(xxvi) closed reduction of nasal fracture 21.71
(xxvii) revision rhinoplasty 21.84
(xxviii) other rhinoplasty 21.87
(xxix) other septoplasty 21.88
(xxx) other excision or destruction of lesion or tissue of larynx 30.09
(xxxi) laryngoscopy and other tracheoscopy 31.42
(xxxii) biopsy of larynx 31.43
(xxxiii) bronchoscopy through artificial stoma 33.21
(xxxiv) fiber-optic bronchoscopy 33.22
(xxxv) other bronchoscopy 33.23
(xxxvi) biopsy of lymphatic structure 40.11
(xxxvii) simple excision of other lymphatic structure 40.29
(xxxviii) biopsy of bone marrow 41.31
(xxxix) esophagoscopy through artificial stoma 42.22
(xl) other esophagoscopy 42.23
(xli) biopsy of esophagus 42.24
(xlii) gastroscopy through artificial stoma 44.12
(xliii) other gastroscopy 44.13
(xliv) other endoscopy of small intestine 45.13
(xlv) flexible fiberoptic colonoscopy 45.23
(xlvi) other endoscopy of large intestine 45.24
(xlvii) local excision of rectal lesion or tissue 48.35
(xlviii) incision or excision of perianal tissue 49.01
(xlix) local excision or destruction of other lesion or tissue of anus 49.3 (l) other procedures on hemorrhoids 49.49
(li) laparoscopy 54.21
(lii) other cystoscopy 57.32
(liii) urethral meatotomy 58.1
(liv) release of urethral stricture 58.5
(lv) dilation of urethra 58.6
(lvi) bilateral endoscopic ligation and crushing of fallopian tubes 66.21
(lvii) bilateral endoscopic ligation and division of fallopian tubes 66.22
(lviii) other bilateral endoscopic destruction or occulsion of fallopian tubes 66.29
(lix) other cervical biopsy 67.12
(lx) dilation and curettage for termination of pregnancy 69.01
(lxi) other dilation and curettage 69.09
(lxii) aspiration curettage of uterus for termination of pregnancy 69.51
(lxiii) other aspiration curettage of uterus 69.59
(lxiv) marsupialization of Bartholin's gland (cyst) 71.23
(lxv) other bunionectomy 77.59
(lxvi) removal of internal fixation device 78.6
(lxvii) arthroscopy (knee) 80.26
(lxviii) excision of lesion of tendon sheath of hand 82.21
(lxix) excision of lesion of other soft tissue 83.39
(lxx) other biopsy of breast 85.12
(lxxi) local excision of lesion of breast 85.21
(lxxii) incision w/removal of foreign body from skin and subcutaneous tissue 86.05
(lxxiii) application of other cast 93.53
(10) Nothing contained in either paragraph (8) or (9) of this subdivision shall prevent any of the procedures listed in, or otherwise covered by, paragraph (9) of this subdivision from being performed on an outpatient basis.
(g) Inpatient hospital care, services and supplies for admissions beginning on a Friday or Saturday shall include as a covered benefit under medical assistance for the needy only those inpatient days beginning with and following the Sunday after such admission unless a person designated by the Commissioner of Health makes a determination of coverability for such Friday or Saturday while making the determinations required in subdivision (a) of this section and section 85.7 of this Part. A determination of coverability shall be based upon a finding that:
(1) such care, services and supplies commencing with a Friday or Saturday admission are furnished for a medical emergency;
(2) such care, services and supplies commencing with a Friday or Saturday admission are required because of the necessity of emergency or urgent surgery for the alleviation of severe pain or the necessity for immediate diagnosis or treatment of conditions which threaten disability or death if not promptly diagnosed or treated; or
(3) the care, services and supplies commencing with a Friday or Saturday admission are for preoperative care for surgery which has been determined to be a covered benefit under section 85.4 of this Part.
(h) Inpatient days beginning on a Friday or Saturday shall not be subject to the limitations of subdivision (g) of this section in hospitals determined by the commissioner or his designee to be rendering full service on a seven-day-a-week basis. A determination of "full service" shall be made after taking into consideration such factors as the routine availability and use of operating room services, diagnostic services and consultants, laboratory services, radiological services, pharmacy services, staff patterns consistent with full services and such other factors as the commissioner or his designee deems necessary and appropriate.
(i) A determination of coverability of admissions to general hospitals for psychiatric care for persons 16 years of age and older requires that the following shall be met:
(1) The patient's hospital medical record shall contain one or more of the following as documentation for the necessity for admission:
(i) evidence of behavior or thought by the patient, described in the patient's medical record, that is likely to lead to consequences which are a significant danger to the patient or others;
(ii) evidence of deviant behavior exhibited by the patient and described in the patient's medical record, which is no longer tolerable to the patient or to society and is likely to be ameliorated by treatment at this level of care;
(iii) the finding that ambulatory treatment has been unsuccessful in halting or reversing the course of the mental illness, and that inpatient treatment at this level of care is needed in order to prevent or manage behavior or thought described in subparagraph (i) or (ii) of this paragraph;
(iv) the finding that the patient requires a type of therapy which cannot be initiated or continued unless in a supervised setting at this level of care; or
(v) the finding that the patient has a condition other than mental disorder which requires hospital care, but psychological components cannot be handled as well on other units.
(2) A specific treatment plan shall be developed and shall have been implemented within three days following admission. (3) The patient's response to treatment must be observed and shall be recorded in the patient's medical record.
(4) An anticipated discharge plan shall be developed by the medical staff and shall be recorded in the patient's medical record no later than the fifth day following admission.
(5) A review of the necessity for continued stay shall be carried out in accordance with the provisions of subdivision (b) of section 85.5 of this Part. The patient's hospital medical record shall contain one or more of the following as documentation for the necessity for continued hospital stay:
(i) evidence that there is an immediate physical danger to the patient or others and this level of care is appropriate;
(ii) evidence that the magnitude of the abnormal behavior of the patient remains intolerable to the patient or society, and clinical evidence recorded in the medical chart justifies an extension of stay at this level of care under treatment;
(iii) a finding that if the patient were to be discharged, subparagraph (i) or (ii) of this paragraph; would be likely to recur soon and continued hospitalization would be likely to prevent this. The medical record must document the reason why it is believed likely to recur soon and why continued hospitalization would be likely to prevent the recurrence;
(iv) a finding that the patient's care requires the use and regulation of a specific modality, but the patient lacks motivation and refuses, or is unable, to cooperate under a program of care at another level;
(v) evidence suggests that the patient can improve sufficiently to be treated in an ambulatory setting or other level of care only after additional hospitalization because a major revision of treatment plan has occurred such as (a) change in treatment regimen or (b) patient relapsed unexpectedly; or
(vi) a condition other than mental disorder requires this level of care, but psychological component cannot be handled as well on other services.

Effective Date: 
Wednesday, January 27, 1993
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Section 85.7 - Extension of hospital stay

85.7 Extension of hospital stay.

(a) To be a covered benefit under medical assistance for the needy as provided in section 365-a(2)(b) of the Social Services Law, any inpatient stay which exceeds the period of time determined to be a covered benefit under sections 85.1 through 85.6 of this Part and under this section but does not exceed a total of 20 days or, if for rehabilitation of physical disability as described in subdivision (a) of section 85.5 of this Part, a total of 40 days, shall be subject to a determination of extended coverability. Such determination shall be made by a person designated by the Commissioner of Health, shall be made prior to the expiration of the previously determined period of covered benefit and shall be for a specified period of time not to exceed applicable length of stay norms for comparable patients which have been authorized by the Commissioner of Health or the 20th day of stay, whichever is less. If the stay is for rehabilitation of physical disability as described in subdivision (a) of section 85.5 of this Part, such specified period of time shall not exceed the 40th day of stay. Determination of extended coverability shall be based upon existence of medical conditions which can be treated only by continued care on an inpatient hospital basis as documented in the patient's medical record.

(b) While making a determination of coverability, if the person designated by the Commissioner of Health determines that during a previously determined period of covered benefit, the care, supplies and services actually provided did not require provision on an inpatient hospital basis, the designated person may make a determination of noncoverability as to part or all of such previously determined period of covered benefit under medical assistance for the needy.

(c) A determination of benefit coverability under this section shall be made by a designated physician or nonphysician under a designated physician's supervision. A determination of noncoverability shall be made only by a designated physician. If such determination of noncoverability is made, any inpatient hospital care, supplies or services provided beyond the previously determined period of covered benefit shall not be a covered benefit under medical assistance for the needy.

(d) Notice of determination shall be given to the patient's physician, the hospital administrator and, if there is a determination of noncoverability, to the patient.

(e) The patient's physician or hospital administrator may, within three days of the date of such notification, appeal a determination on noncoverability in writing to the physician or physicians designated by the commissioner for such purpose. Notification of the decision on appeal shall be given to the patient's physician, the hospital administrator and the patient. If the determination of noncoverability is affirmed on appeal, any inpatient hospital care, supplies, or services provided beyond the previously determined period of covered benefit shall not be a covered benefit under medical assistance for the needy.

(f) Any hospital care, services or supplies covered as a benefit under this section shall be subject to length of stay limitations of section 85.5 of this Part.
 

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Section 85.8 - Alternate level of care placement

85.8 Alternate level of care placement.

(a) During the process of making determinations of coverability as specified in sections 85.1 through 85.7 of this Part, if the person designated by the Commissioner of Health decides that the patient may require placement in an alternate level of medical care upon discharge from the hospital, the designated person shall refer such case to the discharge planning unit of the hospital for appropriate placement action.

(b) During the process of making determination of coverability under sections 85.1 through 85.7 of this Part, if the person designated by the Commissioner of Health determines that the patient no longer requires inpatient hospital care but cannot be discharged except to a lesser level of medical care, he shall make a determination of noncoverability unless the hospital demonstrates that it has made and is continuing to make every effort to place the patient but without success.

(c) For all patients for whom reimbursement is claimed under medical assistance for the needy who require placement in a nursing home or health-related facility at time of discharge from a hospital, patient review forms as required by the State Department of Health must be completed by the hospital as follows:

(1) (i) The Hospital/Community Patient Review Instrument (Hospital/Community PRI), as contained in section 400.13 of this Title, shall be completed by a registered professional nurse who has successfully completed a training program in patient case mix assessment approved by the department to train individuals in the completion of the Patient Review form (PRI) or the Hospital/Community Patient Review form (Hospital/Community PRI). The SCREEN as contained in section 400.12 of this Title shall be completed by a professional with demonstrated skills in assessing psychosocial situations, including but not limited to social work and discharge planning professionals, who has successfully completed a training program in patient case mix screening approved by the department to train individuals in the completion of the patient screening form (SCREEN); or

(ii) each hospital shall have on staff one trained and qualified assessor, and one trained and qualified screener, each as described in subparagraph (i) of this paragraph, for every 70 medical surgical beds, who shall attest to the accuracy of the patient review forms, except that no more than nine trained and qualified assessors and nine trained and qualified screeners shall be required in a hospital.

(2) The Hospital/Community PRI, as contained in section 400.13 of this Title, shall have been completed prior to or within 24 hours of the patient's assignment to alternate level of care (ALC) status, and every 15 days for the first 30 days, and every 30 days thereafter, and within 24 hours prior to the time of discharge to a skilled nursing facility or a health-related facility, unless a different schedule is contained in 18 NYCRR 505.20.

(3) The SCREEN, as contained in section 400.12 of this Title, shall have been completed prior to or within 24 hours of the patient's assignment to ALC status, and every 30 days thereafter, unless a different schedule is contained in 18 NYCRR 505.20.

(4) The Hospital/Community PRI and SCREEN, as contained in sections 400.12 and 400.13 of this Title, shall also be completed when the patient's status changes, as evidenced by a change in the patient's assigned Resource Utilization Group (RUG-II). (See Appendix 13-A, infra, for RUG-II categories.) (5) The patient and/or the patient's designated representative shall be given an explanation of the information contained on the SCREEN, including the determination of setting for care for that particular patient.

(6) Patients younger than 16 years of age shall be assessed at the frequency specified in paragraph (2) of this subdivision, using patient review forms as required by the facility(ies) to which the patient is referred for care upon discharge.
 

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Section 85.9 - Responsibilities of persons designated by the Commissioner of Health

85.9 Responsibilities of persons designated by the Commissioner of Health.

Persons designated by the Commissioner of Health as specified under sections 85.1 through 85.8 and section 85.13 of this Part shall complete and forward reports of their activities as specified by the Commissioner of Health. The designated persons shall maintain copies of all notices of determinations of coverability and noncoverability and notifications of decisions on appeal and records which document the basis for all determinations of coverability and noncoverability and decisions on appeal and shall make such copies and records available to persons designated by the Commissioner of Health for review and evaluation as required.
 

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Section 85.10 - Responsibilities of hospitals

85.10 Responsibilities of hospitals.

(a) In addition to their responsibilities specified under other sections of this Part, hospitals shall provide such information, facilities and services as requested by the persons designated by the Commissioner of Health to make determinations of coverability or decisions on appeal under sections 85.1 through 85.9 and section 85.13 of this Part.

(b) Hospitals shall designate an employee of the hospital to serve as liaison with the persons designated by the Commissioner of Health to make determinations of coverability or noncoverability or decisions on appeal under sections 85.1 through 85.9 and section 85.13 of this Part.

(c) Hospitals shall maintain copies of all notices of determinations of benefit coverability and noncoverability and notifications of decisions on appeal made by the commissioner's designees under this Part and given to the hospital. The hospital shall make such copies available for review by persons designated by the Commissioner of Health, the State Department of Social Services or local social services districts.

(d) Hospitals shall record on each claim for reimbursement under medical assistance for the needy for inpatient hospital care the period or periods of time approved as covered benefits by the commissioner's designee under this Part and shall certify on each claim that reimbursement is being requested only for inpatient hospital care determined to be a covered benefit by the commissioner's designee or that a determination is not required under this Part.
 

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Section 85.11 - Determinations of Commissioner of Health

85.11 Determinations of Commissioner of Health.

(a) The Commissioner of Health may make a determination, as appropriate, that part or all of past, present or future inpatient care, services and supplies in a hospital are not a covered benefit under medical assistance for the needy if the hospital:

(1) has failed adequately to review, act upon, and report to the department regarding discharge information provided to the hospital which has been compiled and analyzed by the department from information submitted to it by the hospital under paragraph (4) of subdivision (e) of section 405.3, Medical Facilities - Minimum Standards;

(2) has failed to correct the deficiencies identified by the review of such discharge information;

(3) has failed to submit discharge information on the forms required under paragraph (4) of subdivision (e) of section 405.9, Medical Facilities - Minimum Standards or subdivision (c) of section 85.8 of this Part or has provided information on such forms which is not complete or not accurate.

(4) has claimed reimbursement for patients who did not meet benefit coverability definitions under this Part during a portion of or all of their inpatient hospital stay.

(5) has provided care, services and supplies in a manner which results in excessive patient stay;

(6) has failed fully to record information justifying benefit coverability of care or services provided;

(7) has failed to comply with section 405.26, Medical Facilities - Minimum Standards pertaining to utilization review;

(8) has failed to fulfill its responsibilities under this Part.

(b) Such determinations of noncoverability may be made with respect to inpatient hospital care which the commissioner's designee has previously determined to be a covered benefit under medical assistance for the needy. No determination of noncoverability shall be made pursuant to paragraphs (4), (5) and (6) of subdivision (a) of this section if the commissioner's designee has previously determined such inpatient hospital care to be a covered benefit under medical assistance for the needy and the designee was an employee of the State Department of Health.

(c) The commissioner may make a determination that certain conditions and types of inpatient hospital care, services and supplies are not a covered benefit as inpatient hospital care under medical assistance for the needy when evaluation and study of such conditions and types of care, services and supplies results in a finding that such care, services and supplies are not required to be performed on an inpatient hospital basis.
 

Effective Date: 
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Section 85.12 - Other remedies

85.12 Other remedies.

The remedies provided in sections 85.1 through 85.11 of this Part shall not be exclusive but shall be cumulative and in addition to existing remedies or remedies hereafter provided by law.
 

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PHYSICALLY HANDICAPPED CHILDREN

Section 85.13 - Physically handicapped children

PHYSICALLY HANDICAPPED CHILDREN

85.13 Physically handicapped children. For persons under the age of 21 years having conditions covered under the scope of the physically handicapped children's program, all determinations of coverability in this Part shall be made by the physically handicapped children's program county medical director, the county commissioner of health or the health services administration of the City of New York as the designee of the Commissioner of Health. Such designee may utilize any diagnosis and evaluation carried out in a center approved by the physically handicapped children's program as the second opinion upon which determination of coverability is made, or may require an additional second opinion.
 

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CONTINUING STAY REVIEWS IN RESIDENTIAL HEALTH CARE FACILITIES

Section 85.14 - Definitions

CONTINUING STAY REVIEWS IN RESIDENTIAL

HEALTH CARE FACILITIES

85.14 Definitions. The following definitions shall apply to sections 85.14 through 85.17 of this Part:

(a) Adverse finding shall mean a determination by the utilization review agent of a residential health care facility that a patient or resident who is receiving benefits under the medical assistance for the needy program requires a lower level of care than he is presently receiving.

(b) Multi-level facility shall mean a residential health care facility which provides both skilled nursing care and health-related care at its premises.

(c) The patient review forms and criteria for level of care shall mean the patient assessment criteria and standards promulgated and published by the Office of Health Systems Management (Patient Review Instrument (PRI) Patient Screening Instrument (SCREEN) and Criteria for Level of Care) as contained in subdivision (i) of section 86-2.30 and section 400.12 of this Title, except that such forms and criteria shall not apply for patients/residents who are younger than 16 years of age.
 

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Section 85.15 - Notification of adverse finding

85.15 Notification of adverse finding.

When an adverse finding is made, the utilization review agent must immediately notify the appropriate area office of the Department of Health, Office of Health Systems Management, Long-Term Care Unit. The utilization review agent must immediately forward to the area office a copy of the most recently completed patient review forms (PRI and SCREEN) and criteria for level of care as contained in subdivision (i) of section 86-2.30 and section 400.12 of this Title, a copy of the psychosocial evaluation completed by the facility's qualified social worker indicating the patient's or resident's response to possible transfer, the information supplied by the attending physician, if any, concerning the patient's or resident's current clinical status and ability to accept transfer, and the utilization review agent physician's statement of the change in the patient's or resident's medical condition or other circumstances justifying the adverse finding.
 

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Section 85.16 - Review of adverse finding

85.16 Review of adverse finding.

(a) A nurse reviewer at the area office of the Office of Health Systems Management shall be assigned to review the information forwarded by the utilization review agent, and determine whether all relevant factors were considered in arriving at the adverse finding.

(b) The nurse reviewer may send the case back to the facility for appropriate corrections if the information on the patient review forms (PRI and SCREEN) is not internally consistent, or if the information on the forms is not legible, or if the forms are not fully completed or signed by authorized individuals, or if the information provided is otherwise unacceptable.

(c) If the patient's or resident's attending physician has not supplied the utilization review agent with information concerning the patient's or resident's current clinical status and the patient's or resident's ability to accept transfer, the nurse reviewer shall contact the attending physician and obtain this information.

(d) If the nurse reviewer finds that all written information is acceptable, the reviewer shall contact the facility administrator to schedule an onsite visit. Upon the onsite visit, the nurse reviewer shall:

(1) compare the patient review forms with the patient's or resident's medical record or chart to ensure that the form is reflective of the patient's or resident's current medical condition;

(2) discuss the appropriateness of the adverse finding, including the patient's or resident's physical and psychological response to transfer with the social worker, attending nurse, attending physician and other facility staff directly involved in providing care to the patient or resident;

(3) observe the patient's or resident's physical and emotional condition; and

(4) request the patient's or resident's attending physician to clinically examine the patient or resident if his medical record is not up to date.

(e) If the nurse reviewer believes the transfer is not medically safe and not in the best interest of the patient or resident, and that the proposed transfer is not suited to the particular needs of the patient or resident, then the nurse reviewer shall refer the case back to the Office of Health Systems Management's area office for physician review and certification, indicating whether continued stay at the current level of care is appropriate. If the Office of Health Systems Management's physician certifies that the current level of care is appropriate, the residential health care facility will be notified of this certification.

(f) If the nurse reviewer agrees with the adverse finding, or the Office of Health Systems Management's physician upholds the adverse finding as cited in subdivision (e) of this section, the nurse reviewer shall contact the patient or resident and advise him that a recommendation of transfer has been made, and shall determine whether the patient or resident voluntarily agrees to the transfer. If the patient or resident is unable to consent to the transfer because of confusion or impaired judgment, it will be presumed that the patient or resident has not voluntarily agreed to the transfer.

(1) If the patient or resident voluntarily agrees to the transfer, the decision of the utilization review agent shall stand, and the case shall be referred to the Office of Health Systems Management's area office for physician review and certification that he concurs with the adverse finding.

(2) If the patient or resident does not voluntarily agree to the transfer, except that the patient or resident agrees to be transferred to a specific facility or facilities, the decision of the utilization review agent shall stand upon condition that the patient or resident can only be transferred to the specified facility or facilities.

(3) If the patient or resident does not voluntarily agree to the transfer, and the patient or resident is a resident of a multi-level facility and can be transferred within the facility to a lower level of care in accordance with the utilization review agent decision, the decision of the utilization review agent shall stand upon condition that the patient or resident can only be transferred within the multi-level facility.

(4) If the patient or resident does not voluntarily agree to the transfer, and the patient or resident is not a resident of a multi-level facility, the case shall be referred to the Office of Health Systems Management's area office for physician review and certification that continued stay at that level of care is approved.

(g) If the patient or resident voluntarily agrees to the transfer, a dated, written and signed statement shall be obtained from the patient or resident, describing the specific transfer consented to and reciting that the patient or resident understands that the transfer will not be required without his consent. This statement shall also be signed by the nurse reviewer who shall certify that the patient or resident understood and voluntarily signed the statement, and that the patient or resident is not unable to consent to the transfer because of confusion or impaired judgment.

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Section 85.17 - Notification of Department of Social Services

85.17 Notification of Department of Social Services.

When a determination is made pursuant to paragraph (f)(1), (2) or (3) of section 85.16 of this Part, the area office shall notify the appropriate social services district official of the determination and forward a copy of the patient review forms (PRI and SCREEN), and the utilization review agent physician's statement of the change in the patient's or resident's medical condition or other circumstances justifying the transfer. The social services district office shall notify the patient or resident, the patient's or resident's attending physician, the facility administrator, and the patient's or resident's next of kin or designated representative, of the adverse decision and the patient's or resident's fair hearing rights.
 

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NONPRESCRIPTION DRUGS IN THE MEDICAID PROGRAM

Section 85.20 - Definitions

NONPRESCRIPTION DRUGS IN THE MEDICAID PROGRAM

85.20 Definitions. As used in the sections under the heading "Nonprescription Drugs in the Medicaid Program" (õ 85.20 et. seq. of this Part), unless the context otherwise requires:

(a) Nonprescription drug means a drug, commonly referred to as a nonlegend or over the counter drug, which may be sold at retail by a pharmacy to the general public. Neither Federal law nor regulations of the commissioner require that such drugs be distributed or dispensed on prescription. The provisions of Education Law, section 6810(1) and the first unnumbered paragraph of section 6816 are not applicable to the sale, distribution or dispensing of such nonprescription drugs.

(b) Medical assistance program means the New York State medical assistance to the needy program (Medicaid) authorized by article 5, title 11 of the Social Services Law.

(c) Commissioner means the Commissioner of Health of the State of New York.

(d) Package size of nonprescription drug means the amount of medication required to fill a request or order for such drug. Under the medical assistance program, reimbursement for nonprescription drugs shall not be greater than the price for the available manufacturers' package or unit size which most closely corresponds to the quantity requested on such written request or order.
 

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Section 85.21 - Establishment of list of reimbursable, nonprescription drugs

85.21 Establishment of list of reimbursable, nonprescription drugs. Pursuant to section 365-a of the Social Services Law nonprescription drugs included in the therapeutic categories listed in this section may be reimbursed in the New York State Medical Assistance Program.
Product

(a) Analgesic and Antipyretic

(1) Acetaminophen
(2) Acetylsalicylic Acid

(3) Ibuprofen

(b) Antacid

(c) Antivertigo (1) Dimenhydrinate

(d) Cough and Cold

(1) Phenylephrine Hydrochloride

(2) Guaifenesin and/or Decongestant and/or Antitussive

(3) Non-Narcotic Antitussants and/or Antihistamine
(4) Antihistamine and Decongestant

(5) Nonnarcotic Antitussants and/or Upper Respiratory Combinations of Antihistamines and Decongestants

(6) Decongestant

(7) Sodium Chloride nasal drops/spray

(e) Dermatological

(1) Bacitracin

(2) Neomycin
(3) Tolnaftate

(4) Aluminum Acetate
(5) Hydrocortisone

(f) Family Planning

(1) Contraceptive

(g) Fecal Softener and Laxatives

(1) Milk of Magnesia

(2) Heavy Mineral Oil

(3) Docusate, Calcium, Potassium or Sodium

(4) Bisacodyl

(5) Bulk Laxatives

(6) Barium Enema PrepKit

(7) Senna

(h) Hematinic

(1) Ferrous Sulfate

(2) Ferrous Gluconate

(i) Insulin

(j) Vitamin/Mineral

(1) ACD with or without iron
(2) Multi-vitamin with or without iron (3) Therapeutic Vitamins with or without Minerals

(4) Prenatal Vitamins, (5) Ascorbic Acid

(6) Calcium
(7) Pyridoxine Hydrochloride

(8) Vitamin D

(9) Thiamine Hydrochloride

(10) Magnesium (11) Nicotinic Acid

(k) Basic Aluminum Carbonate Products (only for persons with diagnosis of chronic renal disease)

(l) Ocular/Oral Lubricants

(1) Lubricant Ophthalmic

(2) Sodium Chloride Ophthalmic

(3) Artificial Tears

(4) Saliva Substitute

(m) Anti-Diarrheal Product

(1) Kaolin-Pectin Combination
(2) Attapulgite Suspension

(3) Loperamide HCl

(4) Polycarbophil

(n) Antihistamines

(o) Enzyme

(1) Pancreatic Tablets

(p) Pediculicide

(q) Emetic

(1) Ipecac Syrup (r) Smoking cessation.

Effective Date: 
Wednesday, November 26, 2008
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Section 85.22 - Maximum reimbursable price and limitations on reimbursement for nonprescription drugs

85.22 Maximum reimbursable price and limitations on reimbursement for nonprescription drugs. Pursuant to section 365-a of the Social Services Law, the amount which may be reimbursed for those nonprescription drugs specified in this Part by the commissioner as a reimbursable item of medical assistance shall be the lower of:

(a) the provider's usual and customary price to the general public on the date of provision of service, but not to exceed the lower sale price, if any, in effect on that date; or

(b) the maximum reimbursable price established and maintained by the commissioner.
(c) Reimbursement shall not be available under the medical assistance program for any nonprescription drug in the following categories:

(1) A drug regularly supplied as an integral part of a medical care program activity to a Medicaid recipient by private, voluntary or public agency such as the Veterans Administration, Department of Health and Human Services, State Department of Health or other funded programs.

(2) Any drug for which there are low-cost alternatives if purchased by a Medicaid recipient, either nonprescription or prescription drugs.

(3) Any drug considered ineffective in accordance with standards developed by the Food and Drug Administration.

(4) Any drug sold after the expiration date printed on the container label.

(5) Any drug in a container whose expiration date has been altered, mutilated, destroyed, obliterated or removed by means of an affixed price sticker or other change.

Effective Date: 
Wednesday, November 26, 2008
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Section 85.23 Reserved

Effective Date: 
Wednesday, November 26, 2008

PRESCRIPTION DRUGS IN THE MEDICAID PROGRAM

Section 85.24 - Definitions

Prescribed Drugs In the Medicaid Program

85.24 Definitions. As used in the sections under the heading "prescription drugs" in the Medicaid program (section 85.25 et seq. of this Part), unless the context otherwise requires:

(a) Prescription drug means a drug, commonly referred to as a legend drug, which is sold by a pharmacy to the general public, is paid for directly under the medical assistance program, and for which a prescription is required by applicable Federal and/or State laws or regulations, and does not mean a drug provided on an inpatient basis in a medical facility when such drug is included and reimbursed as part of the all-inclusive rate.

(b) Fiscal order means a medical order to provide a nonprescription drug, for which a prescription is not required by law or regulation.

(c) Medical assistance program means the New York State medical assistance to the needy program (Medicaid) authorized by article 5 of title 11 of the Social Services Law.

(d) Commissioner means the Commissioner of Health of the State of New York.

(e) Standards of quality means, as a minimum, conformance with standards in the United States Pharmacopeia and National Formulary where applicable. All drugs dispensed shall be those distributed by marketers with approved New Drug Applications or Abbreviated New Drug Applications on file with the Food and Drug Administration.

(f) Ad hoc technical pharmacy advisory committee means the committee established by the commissioner to advise and to make recommendations concerning standards, rules, regulations and guidelines needed to implement legally mandatory drug programs, including provisions pertaining to drugs under this Part.
 

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Section 85.25 Reserved

Effective Date: 
Wednesday, November 26, 2008

Section 85.26 Reserved

Section 85.27 Reserved

OUTPATIENT PSYCHIATRIC CARE

Section 85.28 - Applicability and general requirements

OUTPATIENT PSYCHIATRIC CARE

85.28 Applicability and general requirements.

(a) Sections 85.28 and 85.29 of this Part shall only apply to outpatient psychiatric care provided by a private practicing psychiatrist.

(b) A private practicing psychiatrist is a physician who renders treatment to a patient on a fee-for-service basis and who is compensated for those services directly through the medical assistance for the needy program, except that payment for services may be made directly to a professional corporation or partnership in which the private practicing psychiatrist is a member or with which the private practicing psychiatrist is associated, or in the case of a shared health facility as provided in subdivision 8 of section 4708 of the Public Health Law.

(c) To be a covered benefit under medical assistance for the needy as provided in section 365-a of the Social Services Law, outpatient psychiatric care rendered by a private practicing psychiatrist must be provided by a qualified psychiatrist in accordance with the requirements of sections 85.28 and 85.29 of this Part.

(d) A qualified psychiatrist shall meet the requirements contained in the Social Services regulations (18 NYCRR 505.2).
 

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Section 85.29 - Maintenance of medical records

85.29 Maintenance of medical records.

(a) Private practicing psychiatrists shall maintain medical records containing information sufficient to justify the diagnosis and warrant the treatment of each medical assistance patient served.

(b) As part of this documentation, each medical record shall include:

(1) identifying information about the person treated;

(2) current diagnosis as contained in an approved nomenclature manual such as the Diagnostic and Statistical Manual of Mental Disorders, 3rd edition, 1980 (copies are available from the publisher, American Psychiatric Association, 1700 18th Street, N.W., Washington, DC 20009) or the International Classification of Diseases, 9th revision, Clinical Modification, 1978 (copies are available from the publisher, Commission on Professional and Hospital Activities, 1968 Green Road, Ann Arbor, MI 48105). Both publications are available for inspection and copying at the offices of the records access officer of the Department of Health, Corning Tower, Empire State Plaza, Albany, NY;

(3) a description of the patient's problems, strengths, conditions, disabilities and needs;

(4) a statement of the goals and objectives of treatment to address the patient's problems, disabilities and needs, including an estimate of the duration of the patient's need for treatment, a description of the proposed treatment and prognosis;

(5) progress notes providing a chronological description of the patient's progress in relation to the goals and objectives of the established plan of treatment; and

(6) a summary of the patient's condition and disposition when treatment is completed or terminated.

(c) Patient medical records shall be retained in accordance with requirements contained in Social Services regulations (18 NYCRR 540.7).
 

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Section 85.32 - Social work

85.32 Social work.

(a) Social work services may be provided by a social worker, practicing under the direct supervision of a qualified psychiatrist in private practice as part of a course of treatment provided by the supervising psychiatrist.

(b) For purposes of this section, the term social worker shall mean a person authorized pursuant to the Education Law to use the title "certified social worker."

(c) (1) A social worker may provide services only under the continuing direct supervision of a qualified psychiatrist. Such supervision must include regular communication and consultation between the social worker and the supervising psychiatrist, but shall not be construed as requiring the physical presence of the supervising psychiatrist at the time the services are being performed by the social worker. The number of social workers supervised by the supervising psychiatrist shall not exceed four.

(2) Duties and responsibilities performed by the social worker must be assigned to him by the supervising psychiatrist, within the scope of practice of the supervising psychiatrist, and appropriate to the education, training and experience of the social worker.

(3) The provision of services by a social worker must be preceded by the completion of a diagnostic evaluation of the patient by the supervising psychiatrist.

(4) The supervising psychiatrist shall be responsible for developing an overall treatment plan which integrates the social worker's study of the patient, and describes the services to be provided by the social worker.

(5) When enrolling in the medical assistance program, a supervising psychiatrist must provide the Department of Social Services with the names of any social workers for whose services he may bill.

(d) The services provided by the social worker may include the following:

(1) the taking of a social history, if taken during an office visit, which shall include all relevant information useful to the patient's treatment;

(2) making relevant visits to the patient's home and family to assure the efficacy of the supervising psychiatrist's treatment plan;

(3) counselling the patient, if counselling is done during an office visit;

(4) conducting group therapy sessions, if conducted during an office visit;

(5) submitting regular reports to the supervising psychiatrist which will keep him informed of any changes in the patient's circumstances or condition which may influence the outcome of the patient's treatment. The reports shall be retained by the supervising psychiatrist and incorporated into the patient's medical record as required to be maintained pursuant to section 85.29 of this Part.

(e) Payment and reimbursement. (1) Payment for social work services performed by a social worker shall be made only to the supervising psychiatrist. Social workers may not bill independently for their services.

(2) State reimbursement for social work services performed by a social worker shall be limited by the maximum reimbursable fees for such services.

(3) Claims submitted by a supervising psychiatrist for social work services performed by a social worker must include the name of the social worker providing such services.
 

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Section 85.33 - Nursing service

85.33 Nursing service.

(a) Where nursing care may be provided. Nursing service as medically needed shall be provided to medical assistance recipients in the patient's home or in a hospital.

(b) Who may provide nursing care. (1) Nursing care to patients in New York State shall be provided by a person possessing a license and current registration from the New York State Education Department to practice as a registered professional nurse or licensed practical nurse.

(2) Out-of-state nurses providing care to a New York State Medical Assistance patient who is temporarily located outside New York State, must be licensed and registered in the state in which they are practicing.

(c) Private duty nursing care in the hospital. Private duty nursing care in the hospital shall be provided on the recommendation of the patient's attending physician when the patient is in need of individual and continuous care beyond that available by the staff of a hospital, including that which is available in a critical care area.

(d) Nursing service in the home. (1) For necessary nursing service to be provided in the person's home, full and primary use shall be made of the services of an approved home health agency, including a hospital-based home health agency.

(2) Such service shall be provided on a per visit basis and may include not only intermittent or part-time nursing service for the patient but also instructions to members of the patient's family in procedures necessary for the care of the patient.

(3) Service of a registered professional nurse or of a licensed practical nurse on a private practitioner basis may be provided to a patient in his or her own home only under the following circumstances:

(i) when there is no approved home health agency available to provide the intermittent or part-time nursing services need by the patient; and

(ii) when the patient is in need of individual and continuous nursing care beyond that available from an approved home health agency.

(e) Prior approval and prior authorization. Prior approval by the local professional director and prior authorization by the local social services official shall be required for nursing service provided in a person's home or in a hospital by a private practicing registered professional or licensed practical nurse, except that in an urgent situation the attending physician may order the service of such nurse for no more than two nursing days and immediately notify the local social services official and the appropriate medical director.

(f) Physician's written order required. All nursing services provided in the patient's home or in a hospital shall be in accordance with the attending physician's written order and plan of treatment; however, in extraordinary circumstances and for valid reasons which must be documented, nursing service in the home may be initiated by a home health agency before the physician sees the patient. A physician's written order is required for all such nursing services in excess of the initial two visits.

(g) Reimbursement. (1) Reimbursement for nursing services rendered by a registered professional nurse or licensed practical nurse on a private practitioner basis shall be in accordance with fees developed by the Department of Health and approved by the State Budget Director.

(2) Reimbursement shall not be allowed on a fee paid to a legally responsible relative who provides nursing services in the patient's home or in a hospital.

(3) Payment for nursing services provided by an approved home health agency, including a hospital-based home health agency, shall be at rates established by the State Commissioner of Health pursuant to subdivision 7 of section 206 of the Public Health Law and reimbursement for such expenditures shall be at such rates.
 

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Section 85.34 - Rehabilitation services

85.34 Rehabilitation services.

(a) Provision of care. Rehabilitation services shall be made available, only at the direction of a physician, to eligible persons as medically needed and as an integral part of a comprehensive medical care program. Such services include not only service to the patient but also instructions to responsible members of the family in follow-up procedures necessary for the care of the patient.

(b) Where care may be provided. Rehabilitation services may be provided in the patient's own home, in a hospital outpatient department, in an approved clinic or outpatient medical facility not part of a hospital, in an approved medical institution or facility, in an approved home health agency, or in the office of a qualified private practicing therapist or speech pathologist.

(c) Who may provide care. Rehabilitation services shall be provided by:

(1) qualified professional personnel employed by:

(i) an approved home health agency;

(ii) a hospital; or

(iii) an approved clinic or outpatient medical facility not part of a hospital;

(2) a qualified private practicing therapist or speech pathologist.

(d) Definitions. (1) Qualified professional shall mean:

(i) an occupational therapist, physical therapist or speech pathologist who is licensed and currently registered with the New York State Education Department;

(ii) an occupational therapist or physical therapist who possesses a limited permit and practices under the supervision of the appropriate professional in accordance with requirements of section 7905 and section 6735, respectively, of the State Education Law, book 16, McKinney's Consolidated Laws of New York. Copies are available from West Publishing Co., St. Paul, MN, and copies of both sections are available for inspection and copying at the offices of the records access officer of the Department of Health, Corning Tower, Empire State Plaza, Albany, NY;

(iii) a speech pathologist who is in the process of obtaining a license and has on file a "Notification of Approval of the Supervisory Plan" in accordance with requirements of the State Education Law; or

(iv) an out-of-state occupational therapist, physical therapist or speech pathologist meeting the certification requirements of the appropriate agency of the state in which they practice.

(e) Use of rehabilitation resources. (1) In the provision of necessary occupational therapy, physical therapy and speech pathology, full and primary use shall be made of qualified rehabilitation therapists employed on the staff of an approved home health agency or approved rehabilitation clinic as part of a rehabilitation team under the overall direction of a qualified physician.

(2) Service of a qualified occupational therapist, physical therapist or speech pathologist, provided on a private practitioner basis, may be rendered to a patient in his or her own home, in an approved medical facility or in the office of the therapist or speech pathologist, only under the following conditions:

(i) when there is no approved home health agency available to provide the service needed by the patient; or

(ii) when the patient is in need of individual rehabilitation service beyond, or in addition to, that which is available from an approved home health agency.

(f) Prior approval and prior authorization. (1) Prior approval by the local professional director and prior authorization of the local social services official shall be required for the following:

(i) rehabilitation services provided by a private practicing occupational therapist, physical therapist or speech pathologist; and

(ii) all out-of-state rehabilitation services.

(2) Authorization to a private practicing occupational therapist, physical therapist and speech pathologist shall not exceed three months.

(g) Physicians, written order required. (1) All rehabilitation services shall be supported by a written order of a qualified physician and shall be carried out under his or her medical direction. The written order shall constitute medical direction of the physician.

(2) Such written order shall include a diagnostic statement and purpose of treatment.

(3) Such written order is required prior to treatment.

(4) In extraordinary circumstances and for valid reasons which must be documented, a rehabilitation evaluation in the home may be initiated by a home health agency without a written order of a physician. Reimbursement shall not be made for more than one such rehabilitation evaluation visit to a patient in his own home before a physician's specific written order for treatment is obtained.

(h) Reimbursement. Reimbursement for rehabilitation services shall be made in accordance with rates and fees developed by the New York State Department of Health and approved by the New York State Division of the Budget.

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Section 85.35 - Podiatry services

85.35 Podiatry services. (a) Qualified podiatrist.

(1) A podiatrist qualified to participate in the medical assistance program means a podiatrist who is licensed and currently registered to practice podiatry in New York State by the State Education Department.

(2) Podiatry services provided to eligible medical assistance patients while temporarily out-of-state shall be provided by podiatrists qualified to practice podiatry by the appropriate licensing agency of the state in which podiatry services are provided.

(b) Podiatry services included as covered benefits. (1) Podiatry care, services and supplies shall be made available as medically needed and as an integral part of comprehensive medical care.

(2) Necessary podiatry care, services and supplies means those services provided by qualified podiatrists.

(3) Podiatry care, services and supplies shall also include the provision of, or ordering of, clinical laboratory tests that are related to the scope of podiatric practice permitted under provisions of article 141 (Podiatry) of the State Education Law, book 16, McKinney's Consolidated Laws of New York, West Publishing Co., St. Paul, MN, and the rules and regulations of the State Education Department (8 NYCRR Part 65). Copies of these statutory and regulatory provisions are available for inspection and copying at the offices of the records access officer of the Department of Health, Corning Tower, Empire State Plaza, Albany, NY.

(4) Clinical laboratory tests provided or ordered by qualified podiatrists shall be limited to those tests necessary for the diagnosis or treatment of conditions of the foot. Such tests, when performed in the office of the podiatrist in the course of treatment of his own patients, shall be limited to:

(i) complete blood count or any of the separate components of such analysis, including red cell count, white cell count, or hemoglobin;

(ii) hematocrit;

(iii) sedimentation rate;

(iv) urine analysis, routine chemical; and

(v) urine analysis, routine microscopic.

(5) All other necessary clinical laboratory tests shall be performed in a clinical laboratory holding a valid clinical laboratory permit issued in accordance with provisions of the Public Health Law, in the categories for which payment is requested from medical assistance program funds.

(6) All necessary radiologic procedures shall be made available as a covered benefit. Radiologic procedures mean X-rays used to establish a podiatric diagnosis or foot-related medical problem and may be used in conjunction with necessary treatment of foot conditions.

(c) Podiatry service limitations. (1) Medical assistance podiatry care, services and supplies shall not include:

(i) routine hygienic care of the feet in the absence of pathology;

(ii) clinical laboratory tests except those permitted in paragraphs (b)(4) and (5) of this section;

(iii) radiologic procedures outside the scope of podiatric practice as per paragraph (b)(6) of this section;

(iv) amputations and bunion operations, unless such procedures are provided in a hospital; or

(v) all podiatric prostheses in excess of $100 unless prior approval of the local professional director and prior authorization of the local social services commissioner is given.

(d) Reimbursement. Reimbursement for podiatry services shall be made in accordance with fees developed by the New York State Department of Health and approved by the New York State Division of the Budget.
 

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Section 85.36 - Licensed midwife services

85.36 Licensed midwife services. (a) Definitions. As used in this section:

(1) Licensed midwife means a person who is granted a licensed by the State Education Department and provides care pursuant to Article 140 of the State Education Law.

(2) Licensed midwife services means those services which are concerned with the management of the care of mothers and newborns throughout the maternity cycle as well as primary preventive reproductive health care of essentially healthy women.

(3) Maternity cycle means a period limited to pregnancy, labor, birth, and the immediate postpartum period not to exceed six weeks.

(4) Reserved.
(5) Department means the New York State Department of Health.

(b) Provision of care. Licensed midwife services shall be available as medically indicated to eligible medical assistance recipients.

(c) Who may provide care. Licensed midwife services shall be provided by a licensed midwife or by a person practicing out-of-state who meets the qualifications for participation as a midwife in the title XIX program in the state in which he or she is practicing.

(d) Where care may be provided. Licensed midwife services may be provided in a hospital on an inpatient or outpatient basis, in a treatment and diagnostic center, in the office of the licensed midwife or collaborating/consulting physician or in the recipient's home.

(e) Reserved.
(f) Reimbursement. (1) Reimbursement for services provided by an independently practicing licensed midwife shall be in accordance with fees developed by the department and approved by the State Director of the Budget.

(2) Services provided by a licensed midwife who is salaried by a medical facility that is reimbursed for services on a cost-related basis shall not be reimbursed on a fee-for-service basis if the cost for the licensed midwife's salary is included in the facility's cost based rate.
 

Effective Date: 
Wednesday, May 31, 2000
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PRIOR APPROVAL FOR CARE AND SERVICES

Section 85.37 - Time limits within which determinations shall be made

PRIOR APPROVAL FOR CARE AND SERVICES

85.37 Time limits within which determinations shall be made. (a) All decisions on requests for prior approval must be made and all required notices shall be sent by the New York State Department of Health to the requesting provider and, where required, to the medical assistance patient-recipient, within 21 calendar days of receipt of such requests by the New York State Department of Health; except that in cases where prior approval requests for dental care are received in area offices outside the five boroughs of New York City and a clinic examination is necessary, the required notices above shall be transmitted within 30 calendar days of receipt of such requests by the respective upstate area office.

(b) In the event prior approval requests must be returned to the requesting provider for submission of additional information, the calendar day limit in subdivision (a) of this section will be tolled from the day the request is returned to the provider until the day the request plus additional information is returned to the New York State Department of Health.

(c) In the event the prior approval request and the requested additional information from the provider is received on a Thursday or Friday which occurs after the 19th calendar day referenced in subdivision (b) of this section, two additional working days may be added to the 21-calendar day limit specified in subdivision (a) of this section.

(d) If a determination is not made and transmitted in accordance with provisions in subdivisions (a)-(c) of this section, the New York State Department of Health shall, within two working days from the expiration of the time limits set forth in subdivisions (a)-(c) of this section, notify the requesting provider and patient-recipient of such fact and of the patient's-recipient's right to request a fair hearing to determine whether the prior approval request should be approved.
 

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Section 85.38 - Child/Teen Health Plan

85.38 Child/Teen Health Plan (also known as Child Health Assurance Program).

A free-standing diagnostic and treatment center which participates in the Medicaid program shall submit billings with the appropriate specialty codes which accurately reflect all health services provided to children eligible for the Child/Teen Health Plan (also known as Child Health Assurance Program) as defined in 18 NYCRR section 501.1(a) in order to assure maximum utilization of such services.
 

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Section 85.39 - RESERVED

RESERVED

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Section 85.40 REPEALED

Effective Date: 
Wednesday, March 2, 2011

Section 85.41 - Approval of Residential Health Care Facility (RHCF) admission and continued stay

85.41 Approval of Residential Health Care Facility (RHCF) admission and continued stay. (a) For purposes of this section:
(1) An RHCF shall mean any health care provider with an operating certificate as a skilled nursing facility (SNF) or health related facility (HRF) issued by the Department.
(2) Level of care approval shall mean a determination that the care and services furnished by an RHCF are necessary and adequate to meet a patient's clinical needs.

(3) Commissioner's designee shall mean:
(i) an RHCF utilization review agent, as specified in Section 416.9 or 421.13 of this Title; or,
(ii) an agency of local government which has a written Memorandum of Understanding (MOU) with the commissioner for making Medicaid payment determinations with respect to RHCF admission and/or continued stay.
(b) Approval by the commissioner or the commissioner's designee is required for Medicaid reimbursement (see Title 11 of Article 5 of the Social Services Law) of care and services provided in an RHCF.
(c) Level of care approval shall be granted by the commissioner or the commissioner's designee in accordance with patient assessment criteria and standards contained in sections 400.12, 400.13, and 86-2.30(i) of this Title.
(d)(1) The commissioner may at his/her sole discretion terminate the designee status of any agency of local government or RHCF utilization review agent on thirty (30) days advance written notice to the designee. Reasons for termination may include, but shall not be limited to, decisions by the commissioner's designee which are not in substantial compliance with the patient assessment criteria and standards specified in sections 400.12, 400.13, and 86-2.30(i) of this Title.
(2) For agencies of local government, reasons for termination shall also include failure to comply with the terms and standards specified in any written MOU between the commissioner and the local government agency which prescribes the conditions for commissioner's designee status.
(e) For RHCFs, the scope of commissioner's designee authority shall be limited to patients seeking admission to, or continued stay in, the particular facility. Designee status shall be further limited to those individuals who have established or are in the process of establishing Medicaid eligibility (see Title 11 of Article 5 of the Social Services Law).
(f)(1) For agencies of local government, the scope of commissioner's designee authority shall be limited to admission and continued stay review determinations with respect to patients who have established or are in the process of establishing Medicaid eligibility (see Title 11 of Article 5 of the Social Services Law) who are seeking admission or continued stay in New York State RHCFs within fifty (50) miles of the the patient's residence or within fifty (50) miles of the medical facility in which the individual is currently a patient if no current legal residence exists. (2) For all other patients, level of care approval shall be made by the commissioner.
(g) When the commissioner terminates pursuant to this section the level of care approval function of any RHCF or agency of local government, the commissioner shall assume responsibility for placement and/or continued stay review determinations.

Effective Date: 
Wednesday, January 24, 1990
Doc Status: 
Complete

Section 85.42 - Catastrophic health care expense program

85.42 Catastrophic health care expense program.

(a) The Expanded Health Care Coverage Act of 1988 (Chapter 703 of the Laws of 1988) establishes, under the jurisdiction of the New York State Department of Social Services, the Catastrophic Health Care Expense Program (CHCEP). The Department of Social Services will permit authorized counties to make available assistance with cost sharing to eligible county individuals and families for the purpose of assisting such individuals and families with catastrophic health care expenses. The CHCEP program requires participants eligible for cost sharing to receive such assistance in accordance with a schedule that sets forth the cost sharing shares between the participant and the program.

(b) The following schedule entitled "Cost Sharing Proportional Schedule" shall be used by the New York State Department of Social Services in determining a beneficiary's fiscal responsibility for catastrophic health care expenses covered under the CHCEP assistance with cost sharing program:
Cost Sharing Proportional Schedule

Category of Service Recipient Cost Share Responsibility

Hospital Emergency Room 75 percent

Selected Optional Services 50 percent

Podiatry

Clinical Psychology

Optometry/Eye Care Services

Transportation

Inpatient Hospitalization 30 percent

Physician, Dental & Clinic Services, 25 percent

Health Maintenance Organization, Home

Health Care

(freestanding and hospital-based)

including ordered diagnostic and

treatment services:

Pharmacy

Durable Medical Equipment

Laboratory

Radiology

Referred Ambulatory

Audiology (Hearing Aid)

Ambulatory Surgery and Outpatient Surgery 15 percent

Effective Date: 
Wednesday, May 2, 1990
Doc Status: 
Complete

Section 85.43 - Nurse Practitioner Services

85.43 Nurse Practitioner Services

(a) Definitions. (1) "Nurse practitioner" means a person who is licensed and currently registered as a registered professional nurse in New York State and who is certified as a nurse practitioner by the Department of Education (See 6910 of the Education Law and 8 NYCRR sections 64.5 and 64.6.)

(b) Scope of Care. (1) "Nurse practitioners" shall be authorized to provide health care services to eligible medical assistance recipients which fall within the scope of practice for certified nurse practitioners as determined by the Department of Education (See section 6902 of the Education Law and 8 NYCRR sections 52.12, 64.5 and 64.6.)

(c) Medicaid Enrollment. (1) In order for a nurse practitioner to provide health care services to eligible medical assistance recipients, he/she must enroll with the Department of Social Services.

(2) The licensed physician in collaboration with the nurse practitioner must also enroll with the Department of Social Services.

(3) As a condition of enrollment, the nurse practitioner and the collaborating physician must agree to make their practice agreements and protocols available for inspection by staff of the Department of Social Services (DSS).
 

Effective Date: 
Wednesday, May 30, 1990
Doc Status: 
Complete

Section 85.44 - Minimum Standards Preferred Primary Care Providers (PPCP)

85.44 Minimum Standards Preferred Primary Care Providers (PPCP).

(a) Purpose. The purpose of these regulations is to establish minimum standards to qualify as a Preferred Primary Care Provider (PPCP). Preferred primary care is a comprehensive range of services aimed at improving access to and availability of comprehensive primary health care to Medicaid eligible and medically indigent persons and persons in underserved areas and assuring that minimum standards of care and services will be upheld.

(b) Eligibility.

(1) Eligibility is extended to providers of comprehensive primary care services licensed under Article 28 of the Public Health Law:

(i) Licensed diagnostic and treatment centers which primarily provide a comprehensive range of primary medical services, or

(ii) Hospital-based outpatient departments.

(2) Providers included in PPCP shall have an approved provider agreement with the Department of Health and in addition shall meet minimum standards pursuant to this section and the goals and performance standards developed by the program and accepted by the Department. In the event the provider fails to abide by the provisions of the provider agreement, the Commissioner shall require prompt corrective action, impose sanctions or revoke the provider agreement as the facts may warrant.

(3) The facility shall participate in the Child/Teen Health Program.

(c) General requirements.

(1) Continuity of care. Continuity of care shall be assured by:

(i) assigning the same primary care practitioner, or team of such practitioners, who assume the principal responsibility for the care of each patient and follow the patient on each health care encounter;

(ii) provision of a tracking and referral system to document care given to the patient when patient is sent to an emergency service, hospital, or other provider of health care services. Facility staff shall assist the patient with arrangements or make arrangements for the patients for off-site services, facilitate receipt of those services, monitor reports of results of off site services, and integrate results into patient records;

(iii) provision for follow-up of missed appointments via telephone, outreach worker visit, letter or telegram that is appropriate to the urgency of the patient's need; and

(iv) approved hospitals making specialty services available to hospital and diagnostic and treatment center-based PPCPs and to practitioners enrolled in the Preferred Physician and Children Program in their service area.

(2) PPCPs shall enroll eligible children and their families in the Child Health Insurance Program and accept such reimbursement for primary care services of the facility.

(3) Scheduling of appointments and hours of operation.

(i) Operational hours of the facility shall be at least 5 days per week for 40 hours during weekdays with an additional 8 hours during evenings or weekends. Alternate scheduling of hours may be established to meet the needs of patients upon written approval of the Commissioner.

(ii) Patients shall have prompt access via telephone to a clinical staff member on a 24 hours basis for health care emergency problems.

(iii) Service scheduling shall accommodate personal appointments, walk-in patients and referrals.

(iv) Appointment scheduling shall allow ample time to include physical examinations, treatments and patient teaching.

(v) Appointments for non-urgent visits for current patients of the program shall be available in no more than two weeks from the time of a request, 90 percent of the time. Appointments for non-urgent visits by new patients shall be available in no more than four weeks from the time of request. Patients shall be triaged to assure that urgent and emergency care patients which can be managed by the facility receive medical care in a timely manner.

(4) Practitioner credentials.

(i) Staff physicians shall have training, experience and qualifications appropriate to the needs of their patients.

(ii) Specialists shall be board certified or admissible or shall have equivalent training and experience to qualify them to practice in the specialty area.

(iii) Sufficient other practitioners duly licensed and qualified to meet the primary medical care needs of patients shall be available to meet patient need.

(iv) A portion of the physician members of the medical staff sufficient to meet patient needs of the PPCP shall have admitting privileges in affiliate hospitals. The PPCP, and its physicians who are affiliated with a hospital and sending or admitting patients to the hospital from the PPCP, shall work to facilitate coordination of care and information transfer about PPCP patients between the inpatient and ambulatory care facilities. Alternatively, where diagnostic and treatment center-based physicians are not able to gain hospital inpatient admission privileges, the facility shall have hospital backup agreements which provide prompt hospital admission and discharge information to the PPCP. (5) The facility shall participate in local social service district managed care programs for Medicaid recipients when requested by the local district.

(d) Primary Care Services.

(1) Primary care services shall include the fields of internal medicine, obstetrics/gynecology, family practice and pediatrics.

(2) The facility shall provide, directly or by contract, diagnostic radiology, pharmacy and clinical laboratory services, in accordance with patient needs; make arrangements for and assure receipt of services; and ensure receipt of radiology and laboratory reports.

(3) Services the facility provides under contract shall comply with section 400.4 of this Title and contracts shall:

(i) be available for review and inspection by the Department of Health;

(ii) include assurances that the Department of Health has access to agent or agency sites and records to conduct on-site program compliance reviews; and

(iii) require that the subcontractors provide contracted care and services that meet the minimum standards established in this section and are provided in accordance with generally accepted standards of practice and patient care services.

(4) PPCP shall provide or arrange for, but not be limited to, the following preventive health services:

(i) hypertension control;

(ii) diabetes control;

(iii) immunization;

(iv) healthy lifestyles promotion;

(v) cervical, breast and colon cancer screening;

(vi) HIV screening and counseling;

(vii) family planning;

(viii) sexually transmissible disease services; and

(ix) prenatal care and services.

(5) The PPCP shall be organized, equipped and staffed for effective management of the following medical conditions in an ambulatory setting which are associated with excess inpatient hospital admissions:

(i) adult otitis media;

(ii) pediatric otitis media;

(iii) respiratory infection;

(iv) chronic obstructive pulmonary disease;

(v) adult pneumonia;

(vi) pediatric pneumonia;

(vii) adult bronchitis/asthma;

(viii) pediatric bronchitis/asthma;

(ix) heart conditions including angina and chest pain;

(x) cellulitis and differential diagnosis.

(6) Providers shall conduct a psychosocial assessment of each patient, to identify social, economic, psychological and emotional problems which present obstacles to health and treatment. When problems are identified the PPCP shall make referral, as appropriate to the patient needs, to the local Department of Social Services, community mental health resources, alcohol and substance abuse providers and support groups or social/psychological specialists.

(7) Nutrition promotion services. The provider shall establish and implement, directly or by referral, a program of nutrition screening and counseling which includes:

(i) individual nutrition risk assessment, including screening for specific nutritional risk conditions at the initial visit and continuing reassessment as needed;

(ii) professional nutrition counseling, monitoring and follow-up of all patients at nutritional risk;

(8) Records. The facility shall collect such information and make it available in such form as the Commissioner shall require.

(e) Quality Assurance. Preferred Primary Care Providers shall monitor provision of quality care through the facility quality assurance program through performance indicators. The program shall include but not be limited to the following activities in addition to the facility-wide activities of the quality assurance program:

(1) determining patient satisfaction with all components of services including those provided through contracts and by arrangement,

(2) determining and documenting the extent to which the PPCP reaches medically underserved populations in the facility services area, and

(3) determining the extent to which services of the facility are successful in managing, on an ambulatory care basis, patient medical conditions which are associated with excess hospital admissions.
 

Effective Date: 
Wednesday, September 18, 1991
Doc Status: 
Complete

Section 85.45 REPEALED

Effective Date: 
Wednesday, February 13, 2013

Section 85.46 RESERVED

Section 85.47 - Alternate level of care placement - Trial discharge

85.47 Alternate level of care placement - Trial discharge.

Trial discharges from an acute care hospital to a specialty rehabilitation hospital or a physical medicine and rehabilitation unit of a general hospital shall be in accordance with subdivision (a), (c) and (d) of this section. Trial discharges from an acute care hospital to mental health facilities licensed under Article 31 of the Mental Hygiene Law or to a residential health care facility, (RHCF), licensed under Article 28 of the Public Health Law shall be in accordance with subdivision (b), (c) and (d) of this section.

(a) Hospitals shall receive Medicaid reimbursement at the alternate level of care (ALC) rate as established by section 2807-c of the Public Health Law for patients readmitted to such acute care hospitals from a specialty rehabilitation hospital or physical medicine and rehabilitation unit of a general hospital pursuant to the following requirements:

(1) The initial admission to the acute care hospital complied with the requirements of 18 NYCRR 505.20(b)(7).

(2) The purpose of the trial discharge to the specialty rehabilitation hospital or physical medicine and rehabilitation unit of a general hospital was to evaluate the facility's ability to care for that patient.

(3) The patient's acute care hospital medical record and discharge plan fully documented the reason for the trial discharge as well as the possibility of readmission if the trial discharge was unsuccessful.

(4) The specialty rehabilitation hospital or physical medicine and rehabilitation unit of a general hospital determined, in writing, that the facility does not have the capability to meet the patient's assessed needs.

(5) The patient's readmission to the acute care hospital occurred within thirty (30) calendar days from the date of the original discharge to the receiving facility.

(b) Hospitals shall receive Medicaid reimbursement at the alternate level of care (ALC) rate for patients readmitted to such acute care hospitals from mental health facilities licensed under Article 31 of the Mental Hygiene Law or RHCFs licensed under Article 28 of the Public Health Law pursuant to the following requirements:

(1) The initial admission to the acute care hospital complied with the requirements of 18 NYCRR 505.20(b)(7).

(2) The patient who was discharged by the acute care facility to a nursing home or mental health facility for the purpose of a trial discharge had a documented history, as evidenced in the patient's hospital record, of alcohol or substance abuse, behavioral problems or psychiatric illness and is under treatment for one of these conditions.

(3) The purpose of the trial discharge to the mental health facility or RHCF was to evaluate the facility's ability to care for the patient.

(4) The patient's acute care hospital medical record and discharge plan fully documented the reason for the trial discharge as well as the possibility of readmission if the trial discharge was unsuccessful.

(5) The written evaluation by the mental health facility or the RHCF determined that the facility does not have the capability to meet the patient's assessed needs.

(6) The patient's readmission to the acute care hospital occurred within thirty (30) calendar days from the date of the original discharge to the RHCF or mental health facility except for RHCF residents who assert their rights under 415.3(h)(1)(iv) of this Title.

(c) The acute care hospital and the receiving facility shall establish, in writing, mutually acceptable arrangements for the implementation of the patient's trial discharge and possible return including but not limited to responsibility for transferring medical records, transportation of patient, education of patient's family regarding trial discharge process, and notification between facilities if the patient is to be returned to the acute care hospital.

(d) Nothing in this section shall be construed to limit in any manner, patients' or residents' rights as guaranteed to hospital, RHCF, and mental health facility patients and residents by applicable law or regulation.
 

Effective Date: 
Wednesday, August 12, 1992
Doc Status: 
Complete

Appendix 13 - Patient Categories and Case Mix Indices under RUG-II Classification System

Appendix 13-A - is available for inspection and/or copying at the NYS Department of Health, Division of Health Care Financing, Corning Tower, Empire State Plaza, Albany, NY (518) 474-1673.

Effective Date: 
Tuesday, January 29, 2002
Doc Status: 
Complete