3605 - Licensure of home care services agencies.

§  3605.  Licensure  of  home  care  services agencies. 1. After April  first, nineteen hundred eighty-six, no home care services  agency  which  is  engaged  in  providing,  directly  or  through contract arrangement,  nursing services, home health aide services, or personal  care  services  shall  be  operated  without  a  license  issued  by the commissioner in  accordance with the  standards  set  forth  in  this  section;  provided  however,  an  agency  which provides personal care or home care services  exclusively to individuals pursuant to a program administered,  operated  or  regulated  by  another  state agency or an organization licensed and  operating exclusively as a nurses' registry pursuant to  article  eleven  of  the  general  business  law  shall  be  exempt  from  the  licensure  requirements of this chapter. The licensure requirements of this chapter  shall not apply to sole practitioners licensed pursuant to sections  six  thousand  nine  hundred  five  and  six thousand nine hundred six of the  education law.    * 2. The commissioner shall not issue  a  license  to  any  home  care  services  agency  except  with the written approval of the public health  council issued pursuant to the provisions of this section.    * NB Effective until December 1, 2010    * 2. The commissioner shall not issue  a  license  to  any  home  care  services  agency  except  with the written approval of the public health  and health planning council issued pursuant to the  provisions  of  this  section.    * NB Effective December 1, 2010    * 3. An application for licensure as a home care services agency shall  be  filed  with the public health council together with such other forms  and information as shall be prescribed by, or acceptable to, the  public  health  council. Thereafter, the public health council shall forward for  comment,  if  any,  a  copy  of  the  application  for   licensure   and  accompanying documents to the state hospital review and planning council  and  the  health  systems agency having geographical jurisdiction of the  area where the services of the proposed agency are to  be  offered.  The  public  health  council shall act upon such application, after the state  hospital review and planning council and the health systems agency  have  had reasonable time to submit their comments, based solely upon criteria  provided  for  in subdivision four of this section. If the public health  council proposes to disapprove the  application,  it  shall  notify  the  applicant,  provide  reasons  for disapproval and afford the applicant a  hearing on the application, if requested, or  on  its  own  motion.  Any  hearing held pursuant to this subdivision may be conducted by the public  health  council  or  by  any  individual designated by the public health  council.    * NB Effective until December 1, 2010    * 3. An application for licensure as a home care services agency shall  be filed with the public health and  health  planning  council  together  with  such  other  forms  and  information as shall be prescribed by, or  acceptable  to,  the  public  health  and   health   planning   council.  Thereafter,  the public health and health planning council shall forward  for comment, if any,  a  copy  of  the  application  for  licensure  and  accompanying  documents  to  the  health  systems agency, if any, having  geographical jurisdiction of the area where the services of the proposed  agency are to be offered. The public health and health planning  council  shall act upon such application, after the health systems agency has had  reasonable  time  to  submit  its  comments,  based solely upon criteria  provided for in subdivision four of this section. If the  public  health  and  health  planning council proposes to disapprove the application, it  shall notify the applicant, provide reasons for disapproval  and  afford  the  applicant a hearing on the application, if requested, or on its ownmotion. Any hearing held pursuant to this subdivision may  be  conducted  by  the  public  health and health planning council or by any individual  designated by the public health and health planning council.    * NB Effective December 1, 2010    * 4.  The  public  health council shall not approve an application for  licensure unless it is satisfied as to  the  character,  competence  and  standing  in  the community of the applicant's incorporators, directors,  sponsors, stockholders or operators.    * NB Effective until December 1, 2010    * 4. The public health and health planning council shall  not  approve  an application for licensure unless it is satisfied as to the character,  competence   and   standing   in   the   community  of  the  applicant's  incorporators, directors, sponsors, stockholders or operators.    * NB Effective December 1, 2010    5. A license shall not be issued by the commissioner unless  he  finds  that  the  equipment, personnel, rules, standards of care, and home care  services are fit and adequate, and that the home care services  will  be  provided  in  the  manner  required  by  this  article and the rules and  regulations thereunder.    6. Neither public need, tax status nor profit-making status  shall  be  criteria for licensure.    7.  An agency licensed pursuant to this section shall be authorized to  provide nursing services, home health aide  services  or  personal  care  services.    8.  Agencies  licensed  pursuant  to  this  section  but not certified  pursuant to section three thousand six hundred eight  of  this  article,  shall  not be qualified to participate as a home health agency under the  provisions of title XVIII or XIX of  the  federal  Social  Security  Act  provided, however, an agency which has a contract with a state agency or  its  locally designated office may receive reimbursement under title XIX  of the federal Social Security Act.    * 9. An entity which seeks approval as a limited  home  care  services  agency  must  meet  the  requirements  of  this  section,  the rules and  regulations of the department, and must be a certified  operator  of  an  adult  home or enriched housing program pursuant to article seven of the  social  services  law.  The  commissioner  shall  approve   only   those  applicants  that  the  commissioner of the department of social services  has listed as eligible pursuant to the requirements of paragraph (a)  of  subdivision eleven of this section.    * NB Expires March 31, 2011    * 10. The department shall notify the department of social services of  any action taken against a limited home care services agency pursuant to  section thirty-six hundred five-a of this article.    * NB Expires March 31, 2011    * 11.  For  purposes  of this subdivision, eligibility of limited home  care services agencies licensed by the department shall be as follows:    (a) Only those certified operators of adult homes and enriched housing  programs that provide services that are consistent  with  the  needs  of  each  resident,  meet  the  standards  governing  the  operation of such  facilities in accordance with the provisions of  article  seven  of  the  social services law, and provide quality care shall be considered by the  department as eligible for licensure.    (b) An operator that has received current official written notice from  the  department of social services of any enforcement action pursuant to  section four hundred sixty-d of the social services  law  shall  not  be  eligible for such certification.    (c) Such current enforcement action, when resolved to the satisfaction  of  the  commissioner  of  social services, shall not itself preclude anotherwise eligible  applicant  from  licensure  approval  but  shall  be  considered  by  the department in determining the character, competence,  and standing in the community of the applicant pursuant  to  subdivision  four of this section.    (d)  If  the  department receives notice from the department of social  services that a certified operator of an adult home or enriched  housing  program  that  is  licensed  as  a limited home care services agency has  received official written notice from the department of social  services  of  a proposed enforcement action taken pursuant to section four hundred  sixty-d of the social services law,  the  department  shall  review  the  delivery  of  home  care  services  to  determine whether such agency is  meeting all applicable regulations and standards.    * NB Expires March 31, 2011    * 12. Notwithstanding any law to the contrary, the commissioner  shall  have  the  authority  to  limit  the  number of adult homes and enriched  housing programs eligible for licensure under this section.    * NB Expires March 31, 2011    13. The commissioner shall charge to applicants for the  licensure  of  home  care services agencies an application fee of two thousand dollars.  All fees pursuant to this section shall be payable to the department  of  health for deposit into the special revenue funds - other, miscellaneous  special revenue fund - 339, certificate of need account.