Title: Section 765-2.1 - Issuance of a license

765-2.1 Issuance of a license. (a) No home care services agency, other than those exempt from licensure requirements as provided in subdivision (c) of this section, shall provide nursing, advanced home health aide, home health aide, or personal care services to persons in their home unless it has been approved by the Public Health and Health Planning Council and has been issued a license pursuant to the provisions of article 36 of the Public Health Law and this Part.

(b) A license shall not be issued by the commissioner unless he finds that the agency's equipment, personnel, standards of care and provision of service are in compliance with article 36 of the Public Health Law and all applicable codes, rules and regulations.

(c) The following are exempt from licensure under this Part and article 36 of the Public Health Law:

(1) a certified home health agency, long term home health care program, AIDS home care program, or hospice to the extent of providing home care to its hospice patients;

(2) an agency which provides personal care services or home care services exclusively to individuals pursuant to a program administered, operated or regulated by another State agency;

(3) an organization licensed and operating exclusively as a nurses' registry pursuant to article 11 of the General Business Law;

(4) sole practitioners of nursing licensed pursuant to article 139 of the Education Law; and

(5) a medical facility, approved under article 28 of the Public Health Law, to provide chronic renal dialysis services, to the extent such facility provides chronic renal dialysis services to patients at home.

(d) The following criteria shall be used to determine whether an organization or group of individuals are subject to licensure as a home care services agency:

(1) accountability for the services provided as evidenced by responsibility for:

(i) making admission and discharge decisions;

(ii) the provision of, or arranging for, patient care;

(iii) the establishment of standards and policies relating to the provision of care; and

(iv) determining charges for services provided;

(2) employment relationship, if any, of the staff to the operational entity; and

(3) extent and scope of service delivery and functions of staff.

(e) An application for licensure as a home care services agency shall be made to the department on forms provided by the department.