Current through Register Vol. 47, No. 12, March 26, 2025
(a) Notwithstanding the provisions of section
709.1(a), (b),
and (c) of this Part, the methodology and procedures in this section will be
used in the evaluation of certificate of need applications involving the
construction of new or replacement residential health care facility beds, the
renovation of residential health care facilities, the sale or transfer of
residential health care facility beds between facilities, or the establishment
of residential health care facilities, including changes of ownership subject
to review by the Public Health Council.
(b)
(1) For
purposes of this methodology, the base year shall be 2006 and the planning
target year shall be 2016. The planning area shall be the county except as
otherwise provided for in this section.
(2) Notwithstanding any other provision of
this section, the estimates of public need for residential health care facility
beds determined under this section for the planning target year shall continue
to be the estimates of public need for such beds for years subsequent to the
planning target year until a new bed need methodology is promulgated.
(c) The methodology uses the
following steps to estimate the need for residential health care facility beds
in the planning target year:
(1) The
population age 0-64 is estimated by county for the base year and planning
target year in paragraph (d)(1) of this section.
(2) The number of functionally dependent
individuals in the population age 65 and older is estimated by county for the
base year and the planning target year in paragraph (d)(2) of this
section.
(3) The population age
0-64 and the number of functionally dependent individuals aged 65 and older in
each county for the base year is summed in paragraph (d)(3) of this section to
derive the statewide totals for each age group.
(4) Statewide normative use rates for
residential health care facilities, long term community based care and
supportive housing are calculated in paragraphs (d)(4), (5) and (6) of this
section for the population age 0-64 and for the functionally dependent
population age 65 and older.
(5)
The statewide pattern need estimates for residential health care facility beds,
long term community based services and supportive housing in the planning
target year are calculated in paragraph (d)(7) of this section by county by
multiplying the statewide normative use rates by the appropriate population
group.
(6) The need estimates for
residential health care facility beds, long term community based services and
supportive housing are summed to determine total long term care need for each
county in paragraph (d)(8) of this section.
(7) Local pattern need estimates for
residential health care facility beds, long term community based services and
supportive housing in the planning target year are calculated based on the
local pattern distribution of long term care services in the base year in
paragraph (d)(9) of this section.
(8) The statewide pattern need estimates and
the local pattern need estimates are averaged in paragraph (d)(10) of this
section to derive the blended need estimate for residential health care
facility beds, long term community based care and supportive housing.
(9) The blended need estimates for
residential health care facility beds are adjusted to reflect a 99 percent
occupancy rate in paragraph (d)(11) of this section.
(10) The residential health care facility bed
need estimates are adjusted to reflect migration between counties in the State,
to facilities outside the State and for patients migrating from other states to
New York in paragraph (d)(12) of this section.
(11) The relationship of the need estimates
for residential health care facility beds to special populations is addressed
in paragraphs (d)(13) and (14) of this section.
(12) The requirement for the department to
evaluate the residential health care facility bed need methodology and the
appropriateness of certain assumptions set forth in this section is addressed
in paragraph (d)(15) of this section.
(13) The development of long term care plans
by the health systems agencies and the types of adjustments to the need
estimates that may be recommended in these plans is addressed in subdivision
(e) of this section.
(14)
Subdivision (f) of this section provides that the bed need estimates for the
planning target year shall constitute the public need for residential health
care facility beds in the planning area.
(15) Remaining need for construction of
additional residential health care facility beds is calculated by county in
subdivision (g) of this section.
(16) Factors which could be considered by the
department to modify the need estimates developed in accordance with
subdivision (d) of this section are described in subdivision (h) of this
section.
(d) The
methodology for determining the public need for residential health care
facility beds and the estimates of projected need by county for the planning
target year shall be as follows:
(1) The
population age 0-64 shall be estimated by county for the base year and the
planning target year using New York State Data Center projections.
(2)
(i) The
population age 65-74 and 75 and older shall be estimated by county for the base
year and the planning target year using New York State Data Center
projections.
(ii) The total number
of functionally dependent individuals age 65 and older shall be estimated by
county for the base year and planning target year based on the percentage of
such individuals found in the population age 65 and older derived from U.S.
Census Bureau data which identified those with a self-care limitation as those
who resided in the community but report having a condition that makes
activities of daily life difficult, plus those who resided in residential
health care facilities. Estimating the functionally dependent population age 65
and older identifies a sub-set of the population age 65 and older of which a
further sub-set will need long term care services from the formal support
system, such as residential health care facility beds, supportive housing and
long term community based services.
(3) The population estimates for those age
0-64 derived in accordance with paragraph (1) of this subdivision in each
county and the population estimates of the functionally dependent individuals
age 65 and older derived in accordance with paragraph (2) of this subdivision
in each county for the base year shall be summed to derive the State total for
each age group.
(4) The average
daily census of persons served with long term care services in the base year
shall be determined by age for the 0-64 age group and for those age 65 and
older. Such data shall include, but not be limited to, the following long term
care services:
(i) residential health care
facility patients by county of origin including New York State residents served
in out-of-state facilities;
(ii)
persons served in the personal care program;
(iii) persons served in adult care facilities
serving the frail elderly;
(iv)
persons served by certified home health agencies with a length of stay of 90
days or longer;
(v) persons served
by long term home health care programs;
(vi) persons served by managed long term care
plans; and
(vii) patients in
general hospitals on alternate level of care status with a length of stay on
such status of seven days or more.
(5) For purposes of calculating appropriate
normative use rates, the number of long term care patients served in the base
year shall be summed by age group for the three long term care categories of
residential health care facilities, long term community based care (including
long term home health care programs, certified home health agency services to
long term care patients, managed long term care plans and personal care
programs) and supportive housing (including adult care homes and enriched
housing programs. The number of patients on alternate level of care status
shall be allocated between long-term community based care services and
residential health care facilities.
(6) Statewide normative use rates shall be
calculated for residential health care facilities, long term community based
care and supportive housing for the population age 0-64 and for the
functionally dependent population age 65 and older. Such statewide normative
use rates shall be calculated by dividing the total patient population for
residential health care facilities, long term community based services and
supportive housing determined in accordance with paragraph (5) of this
subdivision by the estimated base year population age 0- 64 and the number of
the functionally dependent age 65 and older.
(7) The statewide normative use rates derived
in paragraph (6) of this subdivision shall be multiplied by the estimated
county level population age 0- 64 and estimated number of the functionally
dependent age 65 and older for the planning target year to derive county level
estimates of the need for residential health care facility beds, persons to be
served in supportive housing and long term community based services needs.
These need estimates shall be referred to as the statewide pattern need
estimates.
(8) The total long term
care need for each county is calculated by summing the need for residential
health care facility beds, long term community based care and supportive
housing. This sum represents an estimate of the total number of people in need
of long term care services on a daily basis as represented by the statewide
normative use rates.
(9) The local
pattern of distribution of long term care services shall be calculated by
county using the percentage distribution of resources in the county for
residential health care facility beds, supportive housing and long term
community based services in the base year. These percentages are multiplied by
the total long term care need for the county derived in paragraph (8) of this
subdivision to calculate the local pattern need estimates for residential
health care facility beds, supportive housing and long term community based
care.
(10) The need for residential
health care facility beds calculated using the statewide pattern and the local
pattern shall be averaged to estimate the blended need for each service
category in the county for the planning target year.
(11) The residential health care facility
beds in each county resulting from blending the statewide pattern need and the
local pattern need in paragraph (10) of this subdivision shall be adjusted to
reflect a 99 percent occupancy rate.
(12) The residential health care facility
beds in each county resulting from the occupancy adjustment in paragraph (11)
of this subdivision shall be adjusted to reflect migration between counties and
to and from other states. In general, migration is estimated to be 50 percent
voluntary and likely to continue regardless of the availability of resources in
the county of origin and 50 percent involuntary resulting from the
unavailability of resources in the county of origin. Migration adjustments
shall be based on base year data and shall include:
(i) Migration from the county of origin to
other New York State counties. Such migration adjustment shall be equal to 50
percent of the number of residential health care facility beds that would be
required in the planning target year for residents who have migrated from
another county for residential health care facility services calculated based
on the proportion of county of origin patients migrating to the county of
destination in the base year multiplied by the planning target year county of
origin residential health care facility need.
(ii) Migration to facilities outside New York
State. Such migration adjustment shall be equal to 50 percent of the Medicaid
patients served outside New York State calculated based upon Medicaid claims
data concerning out-of-state placements in the base year.
(iii) Out-of-state migration to New York
State facilities. Such migration adjustment shall be equal to 100 percent of
the patients reported by residential health care facilities in the base
year.
(13) The estimates
of need for residential health care facility beds determined in accordance with
this subdivision do not include estimates of need for residential health care
facility beds for special pediatric beds, ventilator beds, patients with
acquired immune deficiency syndrome or those in need of long term
rehabilitation for head injury. Need for residential health care facility beds
to serve such patients shall be in addition to the estimates of need determined
in accordance with paragraphs (1) through (12) of this subdivision.
(14) The estimates of need for residential
health care facility beds determined in accordance with this subdivision
include beds needed for dementia patients, e.g., Alzheimers disease and related
disorders.
(15) The department
shall conduct an evaluation of the residential health care facility bed need
methodology set forth in this section by December 31, 2013.
(e)
(1) The estimates of need for residential
health care facility beds, supportive housing and long term community based
services developed in accordance with subdivision (d) of this section shall
serve as the basis for development of long term care plans by the health
systems agencies that are operational. These need estimates may be modified in
accordance with paragraph (4) of this subdivision.
(2) The long term care plans shall describe
the steps that will be taken on a regional basis to develop the long term care
system to meet the needs for residential health care facilities, long term
community based services and supportive housing. These plans should be
developed by the health systems agency in consultation with providers,
consumers, local governments and other entities within the health systems
agency region having an interest in long term care services. To be used by the
department in reviewing certificate of need applications, the long term care
plan must be approved by the Commissioner of Health with the advice of the
State Hospital Review and Planning Council, provided, however, that if a long
term care plan has not been developed by the health systems agency and approved
by the Commissioner of Health with the advice of the State Hospital Review and
Planning Council at the time an application is considered by the department,
the need estimates shall be determined in accordance with subdivision (d) of
this section without a long term care plan adjustment.
(3) The long term care plans developed by the
health systems agencies shall include but need not be limited to:
(i) Designation of long term care planning
areas. Long term care planning areas may include a single county or two or more
counties grouped together but may not include portions of a county. The
criteria for establishing long term care planning areas shall be reflective of
at least the following:
(a) voluntary patient
migration patterns;
(b) travel
patterns including driving time.
(4) The health systems agency long term care
plans may make recommendations for amending the need estimates developed in
accordance with subdivision (d) of this section to reflect local
characteristics. Factors that may be considered in this analysis include, but
are not limited to, the following:
(i)
Adjustments for additional migration between health systems agency regions that
is documented and agreed upon in writing by the affected health systems
agencies.
(ii) Adjustments to the
allocation of long term care services between components of the long term care
service system-residential health care facilities, long term community based
services and supportive housing. Factors that may be considered in reallocation
of the need between components of the long term care service system may include
issues related to geographic considerations or manpower availability. All such
recommendations should clearly demonstrate why these adjustments are necessary
and how they will benefit the planning area.
(f)
(1) The
bed need estimates developed pursuant to subdivision (d) of this section,
together with any approved adjustments developed in accordance with subdivision
(e) of this section, shall constitute the public need for residential health
care facility beds in the planning areas defined subject to further adjustments
in accordance with subdivision (h) of this section.
(2) For purposes of determining public need
for residential health care facility beds in the City of New York, the public
need estimates for each county in the City of New York, determined in
accordance with this section, shall be summed. For purposes of determining
public need for residential health care facility beds in the counties of Nassau
and Suffolk, the public need estimates for each of these two counties,
determined in accordance with this section, shall be summed.
(3) Notwithstanding that there is an
indication of need in a planning area for additional residential health care
facility beds as determined in accordance with subdivision (d) or (e) of this
section, there shall be a rebuttable presumption that there is no need for any
additional residential health care facility beds in such planning area if the
overall occupancy rate for existing residential health care facility beds in
such planning area is less than 97 percent based on the most recently available
data. It shall be the responsibility of an applicant in such instances to
demonstrate that there is a need for additional residential health care
facility beds despite the less than 97 percent occupancy rate in the
applicant's planning area utilizing the factors set forth in subdivision (h) of
this section.
(g) The
evaluative procedure for determining public need for residential health care
facility beds in a planning area for the planning target year shall include,
but not be limited to:
(1) identification of
existing residential health care facility beds in the planning area;
(2) identification of residential health care
facility beds that have been approved for construction but are not in operation
in the planning area;
(3)
identification of resulting total residential health care facility beds that
will be available in the planning area;
(4) identification of remaining need in the
planning area, based upon public need for residential health care facility beds
in the planning area determined in accordance with subdivision (d) or (e) of
this section or adjusted in accordance with subdivision (h) of this
section.
(h)
Notwithstanding any other provisions of this section, when the estimates of
need for residential health care facility beds developed in accordance with
subdivision (d) or (e) of this section indicate the need for additional
residential health care facility beds, such estimates of additional need may be
modified, based on information and data gathered from relevant sources relating
to significant local factors pertaining to an applicant's service/planning
area, or on statewide factors, where relevant, which factors may include, but
not necessarily be limited to, those set forth in paragraphs (1) through (7) of
this subdivision. When making recommendations to the State Hospital Review and
Planning Council and Public Health Council concerning the impact of the factors
set forth in this subdivision, the department shall, to the extent practicable,
indicate the relative priority of such factors.
(1) The impact of requirements pertaining to
placing persons with disabilities into the most integrated setting appropriate
so as to enable persons with disabilities to interact with nondisable persons
to the fullest extent possible.
(2)
The growth, availability and cost-effectiveness of long-term home and
community-based services, other non-institutional residential programs and of
other programs and services that may serve as a substitute for or prevent the
need for residential health care facility placement.
(3) Occupancy rates, and the trend of those
rates of existing residential health care facilities in the planning area and
in contiguous counties.
(4) Patient
migration patterns that vary from those included in the methodology set forth
in subdivision (d) of this section.
(5) The health status of residents of the
planning area or the State, as applicable.
(6) Recommendations made by the local health
systems agency, if applicable.
(7)
Documented evidence of the unduplicated number of patients on waiting lists who
are appropriate for and desire admission to a residential health care facility
who experience a long waiting time for placement and who cannot be served
adequately in other settings.
(i) An applicant for residential health care
facility beds should anticipate that the review of the certificate of need
application will be on a competitive basis. Therefore, all information and
factors that the applicant deems relevant to the department's determination of
public need must be included in the applicant's certificate of need submission.
Review of the proposal as submitted by the applicant shall include:
(1) the proposal's responses to and
consistency with priority considerations specified in any requests for
proposals issued by the department or the health systems agency;
(2) the relationship of the residential
health care facility beds being proposed to any applicable regional or
statewide plans;
(3) the proposal's
consistency with the provisions of section
709.1(d) of this
Part;
(4) the availability of less
costly or more effective alternative methods of providing the residential
health care facility beds being reviewed;
(5) whether the proposed residential health
care facility beds would provide improvements or innovations in the financing
and delivery of health services and serve to promote quality assurance and cost
effectiveness;
(6) the quality of
care provided by the residential health care facility in the past;
(7) in cases involving the reduction or
elimination of residential health care facility beds including those cases
involving the relocation of a facility or service, the extent to which need
will be met adequately and the effect of the reduction, elimination, or
relocation of the facility on the ability of low income persons, racial and
ethnic minorities, and other underserved groups, to obtain needed long term
care services;
(8) in cases
involving a proposed service area which includes a neighboring planning area,
the ability of residents of such neighboring planning area to access the
residential health care facility beds proposed;
(9) the contribution the proposed residential
health care facility would make in meeting the health needs of members of
medically underserved groups which have traditionally experienced difficulties
in obtaining equal access to residential health care facility beds (for
example, low-income persons, racial and ethnic minorities, and patients on
alternate level of care status in general hospitals). For the purpose of
determining the extent to which the proposed facility will be accessible to
such persons, the following shall be considered:
(i) the extent to which medically underserved
populations currently use the applicant's services, where the applicant
currently provides residential health care facility services, in comparison to
the percentage of all users of the service in the applicant's planning area or
to which they are found in the population in general, and the extent to which
medically underserved populations are expected to use the proposed residential
health care facility beds if approved;
(ii) the performance of the applicant, where
the applicant currently provides residential health care facility services, in
meeting its obligation under the applicable civil rights statutes prohibiting
discrimination on the basis of race, color, national origin, handicap, sex and
age; and
(iii) the extent to which
Medicaid and medically indigent patients are or would be served by the
applicant;
(10) when the
remaining public need identified in subdivision (g) of this section is not
sufficient to permit the approval of all applications for residential health
care facility beds which are considered in the batch under consideration which
otherwise meet all statutory and regulatory criteria specified under the Public
Health Law, the proposals will be competitively reviewed. In the competitive
review process consideration will be given to those proposals which meet any or
all of the following:
(i) make a commitment
to admit a percentage of patients who are Medicaid eligible or
Medicare/Medicaid eligible in excess of that required under subdivision (m) of
this section;
(ii) make a
commitment to admit a percentage of patients who have been on alternate level
of care status in a general hospital for more than 90 days. Additional
consideration will be given to applications that:
(a) identify and agree to meet special
program requirements for such patients; and
(b) demonstrate that they have written
agreements with general hospitals for admission of alternate level of care
patients;
(iii) agree in
writing to participate in available local long term care case management
programs. Existing written agreements with local case management programs
should be documented in the application;
(iv) propose to establish or expand adult
care facility beds or other supportive housing programs;
(v) provide an architectural design, as
demonstrated through room-by-room single line drawings and project narrative,
that offers innovative designs and other factors (such as interior finishes,
lighting, decorating and furnishings) to enhance quality of life in the
facility.
(j)
Notwithstanding any inconsistent provision of this section, the applicant may
propose a service area that includes a long term care planning area outside of
that in which the facility or proposed facility is located. If any application
is approved on this basis, the number of residential health care facility bed
resources available in the external planning area determined in accordance with
subdivision (g) of this section will be adjusted to reflect that portion of the
facility's bed complement which will serve residents of the external planning
area.
(k) Any application for
construction wherein a determination of public need is made pursuant to this
section shall be subject to the provisions of section
709.1(e) of this
Part.
(l) Notwithstanding any other
provision of this section to the contrary, up to 300 additional residential
health care facility beds for the State as a whole may be approved, which shall
be in additional to the total statewide number of residential health care
facility beds otherwise estimated to be needed under this section. Such
additional beds may be approved in response to applications to add a single bed
or multiple beds to an existing facility, to add an extension unit to an
existing facility or to construct a new facility. Such additional beds may be
approved only to meet emergency situations or other unanticipated
circumstances, which shall include, but not necessarily be limited to, the
following:
(1) natural disasters, such as
floods, fires and disease outbreaks;
(2) unanticipated changes in population
migration patterns or census growth;
(3) unanticipated reduction in availability
of alternative placement settings; and
(4) unanticipated changes in population
health or age group characteristics.
(m) Any residential health care facility or
general hospital filing an application to add residential health care facility
beds shall be subject to the following requirements which shall apply to all of
the facility's existing and proposed certified residential health care beds:
(1) In determining the need for residential
health care facilities, beds and services, consideration shall be given to the
needs of persons who receive or are eligible to receive medical assistance
benefits at the time of admission to a facility pursuant to title XIX of the
Federal Social Security Act and title 11 of article 5 of the Social Services
Law, hereafter referred to as Medicaid patients, and the extent to which the
applicant serves or proposes to serve such persons, as reflected by factors
including, but not necessarily limited to, the applicant's admissions policies
and practices. An application by an applicant that is or will be a provider
that participates in the medical assistance (Medicaid) program shall not be
approved unless the applicant agrees to comply with the requirements of this
subdivision. An applicant that, at the time of consideration of its application
by the commissioner, proposes not to participate in the Medicaid program may be
approved, provided all other review criteria have been met, upon the condition
that if, in the future, it does participate in the Medicaid program, it would
comply fully with the requirements of this subdivision.
(2) To ensure that the needs of Medicaid
patients in an applicant's service area are met and that such patients have
adequate access to appropriate residential health care facilities, beds and
services, applicants shall be required to accept and admit at least a
reasonable percentage of Medicaid patients as determined pursuant to this
subdivision. Such reasonable percentage of Medicaid patient admissions, also
referred to herein as the Medicaid patient admissions standard, shall be equal
to 75 percent of the annual percentage of all residential health care facility
admissions, in the long term care planning area in which the applicant facility
is located, that are Medicaid patients. The calculation of such planning area
percentage shall not include admissions to residential health care facilities
that have an average length of stay of 30 days or less. If there are four or
fewer residential health care facilities in a planning area, the applicable
Medicaid patient admissions standard for such planning area shall be equal to
75 percent of the planning area annual percentage of all residential health
care facility admissions that are Medicaid patients or 75 percent of the annual
percentage of all residential health care facility admissions, in the health
systems agency area in which the facility is located, that are Medicaid
patients, whichever is less. In calculating such percentages, the department
will use the most current admissions data which have been received and analyzed
by the department. An applicant will be required to make appropriate
adjustments in its admissions policies and practices so that the proportion of
its own annual Medicaid patient admissions is at least equal to 75 percent of
the planning area percentage or health systems agency area percentage,
whichever is applicable.
(3) The
proportion of an applicant's admissions that must be Medicaid patients, as
calculated under paragraph (2) of this subdivision, may be increased or
decreased based on the following factors:
(i)
the number of individuals within the planning area currently awaiting placement
to a residential health care facility and the proportion of total individuals
awaiting such placement that are Medicaid patients, provided that patients
awaiting placement include, but need not be limited to, alternate level of care
patients in general hospitals;
(ii)
the proportion of the facility's total patient days that are Medicaid patient
days and the length of time that the facility's patients who are admitted as
private paying patients remain such before becoming Medicaid
eligible;
(iii) the proportion of
the facility's admissions who are Medicare patients or patients whose services
are paid for under provisions of the Federal Veterans' Benefit Law;
(iv) the facility's patient case mix based on
the intensity of care required by the facility's patients or the extent to
which the facility provides services to patients with unique or specialized
needs; and
(v) the financial impact
on the facility due to an increase in Medicaid patient admissions.
(4)
(i) An applicant shall submit a written plan,
subject to the approval of the department, for reaching the Medicaid patient
admissions standard required by this subdivision. The plan shall provide for
reaching the standard within no longer than a two-year period and the facility
shall give preference, as necessary, to Medicaid patients in order to reach the
admissions standard within the prescribed time period.
(ii) Once the Medicaid patient admissions
standard is reached, the facility shall not reduce its proportion of Medicaid
patient admissions so as to go below the standard unless and until the
applicant, in writing, requests the approval of the department to adjust the
standard and the department's written approval is obtained. In reviewing
requests to adjust a facility's Medicaid patient admissions standard, the
department shall consider factors which may include, but need not be limited
to, those factors set forth in paragraphs (2) and (3) of this
subdivision.
(iii) After a
facility's initial Medicaid patient admissions standard has been reached, the
department may increase such facility's Medicaid patient admissions standard,
based on the criteria set forth in this subdivision, if the percentage of
Medicaid patients admitted by residential health care facilities in the
facility's planning area or health systems agency area, as appropriate,
increases due to factors other than an increase in Medicaid patient admissions
by the applicant.
(5)
(i) Subject to the provisions of subparagraph
(ii) of this paragraph, after the phase-in period provided for in paragraph (4)
of this subdivision, a facility shall be prohibited from failing, refusing or
neglecting to accept or admit a Medicaid patient for whom it is otherwise able
to provide care, regardless of whether the level of reimbursement received for
such patient is less than the rate the facility charges private pay patients,
unless the facility has reached and is maintaining compliance with the Medicaid
patient admissions standard imposed by this subdivision. Compliance with the
requirements of this subdivision shall be determined on the basis of a
facility's total annual admissions, so that a facility may exercise its
discretion in determining when during a year it will admit a sufficient number
of Medicaid patients to maintain its Medicaid patient admissions
standard.
(ii) A facility may be
exempt from the requirement of admitting a Medicaid patient in order to meet or
maintain its Medicaid patient admissions standard if it can demonstrate in
writing to the satisfaction of the commissioner that the Medicaid patient was
denied admission solely in order to admit another patient who had a greater
need of residential health care facility services, as determined by the
intensity of care anticipated to be required by such patient, and that there
was only one bed available in the facility at the time of the admission
decision to accommodate a new admission. Facilities shall not be required to
obtain prior department approval in order to accept a non-Medicaid patient in
place of a Medicaid patient pursuant to this subparagraph, but shall maintain
sufficient documentation including, but not necessarily limited to, a copy of
the patient review instrument for the patient admitted and the Medicaid patient
denied admission in order to justify the admission decision. Copies of such
documentation shall be provided to the department upon request.
(6) If any provision of this
subdivision or the application thereof is held invalid, the remainder of this
subdivision and the application thereof to other circumstances shall not be
affected by such holding and shall remain in full force and effect.