Current through Register Vol. 46, No. 12, March 20, 2024
The governing authority or operator, as defined in Part 700
of this Title, of a licensed home care services agency shall:
(a) be responsible for the management and
operation of the agency;
(b) ensure
compliance of the home care services agency with all applicable Federal, State
and local statutes, rules and regulations;
(c) ensure the development of a written
emergency plan which is current and includes procedures to be followed to assure
health care needs of patients continue to be met in emergencies that interfere
with delivery of services, and orientation of all employees to their
responsibilities in carrying out such a plan;
(d) adopt and approve amendments to written
policies regarding the management and operation of the home care services agency
and the provision of health care services;
(e) make available to the public information
concerning the services which it offers, the geographic area in which these
services are made available, the charges for the various types of service and the
payment mechanisms which may be available for such services;
(f) provide an office facility or facilities
equipped and sufficient in size to permit the efficient conduct of business
including access to patient records by all professional staff providing care and
prompt telephone contact to and from patients, referral agencies or facilities,
and other home care services agencies;
(g) employ or contract for a sufficient number
of staff to coordinate, direct and deliver services to patients accepted for care
in accordance with prevailing standards of professional practice;
(h) employ at least one licensed and currently
registered professional nurse whose educational and experiential qualifications
are deemed appropriate by the employing agency for the duties assigned, to be
responsible for the direction and supervision of all patient care services and
other health care activities of the agency;
(i) accept and retain for services only those
persons whose health care needs can be safely and adequately met by the agency
according to criteria specified in written agency policies;
(j) ensure the development and implementation
of a patient complaint procedure to include:
(1) documentation of receipt, investigation and
resolution of any complaint, including the maintenance of a complaint log
indicating the dates of receipt and resolution of all complaints received by the
agency;
(2) review of each complaint
with a written response to all written complaints and to oral complaints, if
requested by the individuals making the oral complaint:
(i) explaining the complaint investigation
findings and the decisions rendered to date by the agency within 15 days of
receipt of such complaint; and
(ii)
advising the complainant of the right to appeal the outcome of the agency's
complaint investigation and the appeal procedure to be followed;
(3) an appeals process with review
by a member or committee of the governing authority within 30 days of receipt of
the appeal; and
(4) notification to
the patient or his or her designee that if the patient is not satisfied by the
agency's response, the patient may complain to the Department of Health's Office
of Health Systems Management;
(k) ensure continuous quality improvement
initiatives, by establishing and maintaining a coordinated quality assessment and
improvement program which integrates the review activities of all home care
programs and services to enhance the quality of care and treatment. Quality
improvement shall be the responsibility of all staff, at every level, at all
times. Supervisory personnel alone cannot ensure quality of care and services.
Such quality must be part of each individual's approach to his or her daily
responsibilities;
(l) appoint a
quality improvement committee to establish and oversee standards of care. The
quality improvement committee shall consist of a consumer and appropriate health
professional persons. The committee shall meet at least four times a year to:
(1) review policies pertaining to the delivery
of the health care services provided by the agency and recommend changes in such
policies to the governing authority for adoption;
(2) conduct a clinical record review of the
safety, adequacy, type and quality of services provided which includes:
(i) random selection of records of patients
currently receiving services and patients discharged from the agency within the
past three months; and
(ii) all cases
with identified patient complaints as specified in subdivision (j) of this
section;
(3) prepare and
submit a written summary of review findings to the governing authority for
necessary action; and
(4) assist the
agency in maintaining liaison with other health care providers in the
community;
(m) ensure that
any management contract complies with the following:
(1) for purposes of this section, a management
contract is an agreement between a licensed home care services agency's governing
authority and a managing authority for the purpose of managing the day-to-day
activities of the agency or any portion thereof. The following shall not be
considered management contracts:
(i) a contract
solely for the provision of professional or other health care services;
(ii) an employment contract; or
(iii) a contract for the provision of
administrative, consulting or support services if all of the following factors
are present:
(a) the agency's governing
authority retains responsibility for the day-to-day operations of the home care
agency;
(b) the contracting entity
has no authority to hire or fire any agency personnel;
(c) the contracting entity does not maintain
and control the books and records of the agency;
(d) the contracting entity has no authority to
dispose of assets or to incur any liability on behalf of the agency;
and
(e) the contracting entity has no
authority to adopt or enforce policies regarding the operation of the
agency;
(2) a
governing authority may enter into a management contract if the requirements of
this subdivision are met. A management contract which has been approved by the
department prior to the effective date of this subdivision need not be amended
further in order to meet the specific requirements of this subdivision. A
management contract entered into on or after the effective date of this
subdivision shall be effective only with the prior written consent of the
commissioner. Management contracts shall include the following:
(i) a description of the proposed roles of the
governing authority and managing authority during the period of the proposed
management contract. The description shall clearly reflect retention by the
governing authority of ongoing responsibility for compliance with all statutory
and regulatory requirements;
(ii) a
provision which recognizes clearly that the responsibilities of the agency's
governing authority are in no way lessened by entering into the management
contract, that the governing authority retains full legal authority over the
operation of the agency, and that any powers not delegated specifically to the
managing authority through the provisions of the contract remain with the
governing authority;
(iii) a
provision which states that notwithstanding any other provision of the contract,
the governing authority retains:
(a) direct,
independent authority to hire or fire the agency's administrator or
manager;
(b) independent control of
the agency's books and records;
(c)
authority over the disposition of assets and the authority to incur on behalf of
the agency liabilities not associated normally with the day-to-day operation of
the agency; and
(d) authority for the
independent adoption and enforcement of policies affecting the delivery of health
care services;
(iv) an
express representation that any management contract approved by the commissioner
is the sole agreement between the managing authority and the governing authority
for the purpose of managing the day-to-day activities of the agency, or any
portion thereof, relating to the geographic service area that is covered by the
management contract, and that any amendments or revisions to the management
contract which increase the amount or extent of authority delegated to the
managing authority shall be effective only with the prior written consent of the
commissioner;
(3) a
management contract shall not be approved if the governing authority does not
retain sufficient authority and control to discharge its responsibilities as the
agency operator. The elements of control set forth in subparagraph (2)(iii) of
this subdivision shall not be delegated to a managing authority. The governing
authority must retain authority to independently adopt, amend and implement
policies and procedures regarding the operation of the agency in order to ensure
the provision of quality home care services and that the agency is operated in
compliance with all applicable statutes and regulations;
(4) a governing authority wishing to enter into
a management contract shall submit a proposed written contract to the department
at least 60 days prior to the intended effective date, unless a shorter period is
approved in writing by the commissioner due to extraordinary circumstances. The
department shall review proposals expeditiously and shall notify the governing
authority of any changes that must be made. The governing authority shall also
submit, within the same time frame, the following:
(i) documentation demonstrating that the
proposed managing authority holds all necessary approvals to do business in New
York State;
(ii) information
necessary to determine that the character and competence of the proposed managing
authority, and its principals, officers and directors, is satisfactory, including
evidence that all agencies or health care facilities it has managed or operated,
in or outside of New York State, have provided a high level of care;
(5) during the period between an
agency's submission of a request for approval of a management contract and
disposition of that request, an agency may not enter into any arrangement for
management contract services other than a written interim consultative agreement
with the proposed managing authority. Any interim agreement shall be consistent
with the provisions of this section, and shall be submitted to the department no
later than five days after its effective date;
(6) an agency's governing authority shall
retain the authority to terminate the contract and discharge the managing
authority and its employees from their positions at the agency for cause on not
more than 60 days' notice. In such event, the agency shall notify the department
in writing at the time the managing authority is notified. The agency's governing
authority shall provide a plan for the operation of the agency subsequent to the
termination and discharge, to be submitted with the notification to the
department;
(n) ensure
that any franchise agreement complies with the following:
(1) for purposes of this section, a franchise
agreement means a contract or agreement between a licensed home care services
agency's governing authority (franchisee) and a franchisor by which:
(i) the governing authority is granted the
right to engage in the business of offering home care services under a marketing
plan or system developed in substantial part by a franchisor, and the governing
authority is required to pay, directly or indirectly, a franchise fee;
or
(ii) the governing authority is
granted the right to engage in the business of offering home care services
associated substantially with the franchisor's trademark, service mark, trade
name, logotype, advertising, or other commercial symbol designating the
franchisor or its affiliate, and the governing authority is required to pay,
directly or indirectly, a franchise fee;
(2) a governing authority may enter into a
franchise agreement if the requirements of this subdivision are met. A franchise
agreement which has been approved by the department prior to the effective date
of this subdivision need not be amended further in order to meet the specific
requirements of this subdivision. A franchise agreement entered into on or after
the effective date of this subdivision shall be effective only with the prior
written consent of the commissioner. A governing authority seeking to enter into
a franchise agreement shall submit to the department a copy of the proposed
agreement complying with the provisions of this section at least 60 days prior to
the intended effective date, unless a shorter period is approved by the
commissioner due to extraordinary circumstances. The department shall review
proposals expeditiously and shall notify the governing authority of any changes
that must be made. Such agreements shall include the following:
(i) a description of the proposed roles of the
governing authority and franchisor during the period of the proposed agreement.
The description shall reflect clearly the governing authority's ongoing
responsibility for the operation and management of the agency and for compliance
with all statutory and regulatory requirements;
(ii) a provision which recognizes clearly that
the responsibilities of the agency's governing authority are in no way lessened
by entering into the agreement and that the governing authority has full legal
authority over the operation and management of the agency, and that the governing
authority retains the right and authority to independently adopt, amend and
implement policies and procedures regarding the operation of the agency in order
to ensure the provision of quality home care services and that the agency is
operated in compliance with all applicable statutes and regulations;
(iii) a provision which recognizes that the
policies, standards, procedures, manuals and other documents developed by the
franchisor which relate to the operating standards, policies and procedures for
the agency shall be available for inspection and copying by the department in
accordance with the department's statutory and regulatory authority. Such
documents, when received by the department, shall be subject to the relevant
provisions of the Freedom of Information Law including, if applicable, provisions
relating to excepting from disclosure documents which are trade secrets or are
maintained for the regulation of commercial enterprise which if disclosed would
cause substantial injury to the competitive position of the subject
enterprise;
(iv) an express
representation that any franchise agreement approved by the commissioner is the
sole franchise agreement between the franchisor and the governing authority for
the agency, or any portion thereof, relating to the geographic service area that
is covered by the franchise agreement;
(3) a franchise agreement shall not be approved
if the governing authority does not retain sufficient authority and control to
discharge its responsibilities as the agency operator. The following elements of
control shall not be delegated to a franchisor:
(i) authority to hire or fire agency
staff;
(ii) control of the agency's
books and records;
(iii) authority
over the disposition of assets or the authority to incur liabilities on behalf of
the agency; and
(iv) sole authority
for the independent adoption of policies and procedures affecting the delivery of
health care services. Although the governing authority may agree to adopt and
utilize policies and procedures developed by the franchisor, the governing
authority must retain authority to independently adopt, amend and implement
policies and procedures regarding the operation of the agency in order to ensure
the provision of quality home care services and that the agency is operated in
compliance with all applicable statutes and regulations;
(4) an agreement which contains elements of
both a franchise agreement and a management contract shall be subject to the
applicable provisions of this subdivision and subdivision (m) of this
section.
(o) Health
provider network access and reporting requirements. The governing authority or
operator of an agency shall obtain from the department's health provider network
(HPN), HPN accounts for each agency that it operates and ensure that sufficient,
knowledgeable staff will be available to and shall maintain and keep current such
accounts. At a minimum, 24-hour, seven- day-a-week contacts for emergency
communication and alerts, must be designated by each agency in the HPN
communications directory. A policy defining the agency's HPN coverage consistent
with the agency's hours of operation shall be created and reviewed by the agency
no less than annually. Maintenance of each agency's HPN accounts shall consist
of, at a minimum, the following:
(1) sufficient
designation of the agency's HPN coordinator(s) to allow for HPN individual user
application;
(2) designation by the
governing authority or operator of an agency of sufficient staff users of the HPN
accounts to ensure rapid response to requests for information by the State and/or
local Department of Health;
(3)
adherence to the requirements of the HPN user contract; and
(4) current and complete updates of the
communications directory reflecting changes that include, but are not limited to,
general information and personnel role changes as soon as they occur, and at a
minimum, on a monthly basis.