N.Y. Comp. Codes R. & Regs. tit. 10, § 790.16 – Determinations of public need for hospice.

(a) The following methodology will be utilized in the evaluation of applications involving the establishment and/or construction of a hospice and the need for hospice care and services. It is intended that this methodology, when used in conjunction with the planning standards and criteria set forth in section 709.1 of this Title, which are also applicable to the determination of need for hospice and which are incorporated herein, represent a statement of basic principles and planning/decisionmaking tools for guiding and directing the development and expansion of hospice care and services throughout the State. The methodology is conceptually based on the application of uniform planning objectives at the health systems agency and/or State level. Its purpose is to provide guidance, to permit flexibility and to assist the health systems agencies, the State Hospital Review and Planning Council, the Public Health Council, the commissioner and potential applicants in determining the future need for hospice care and services. The objective of the methodology is to ensure that an adequate supply of hospice care and services is available and accessible, while at the same time avoiding the proliferation of unneeded hospices and hospice services.
(b) The commissioner shall designate hospice planning areas within each health systems agency region among which the need estimates calculated pursuant to this section will be allocated. Such areas may include a single county or two or more contiguous counties. In developing hospice planning areas, the commissioner shall seek the advice and recommendations of the health systems agencies and the State Hospital Review and Planning Council. Factors which shall be considered by each health systems agency and the council in making recommendations and by the commissioner in designating hospice planning areas shall include, but need not be limited to, the following:
1. (1) provider and patient travel patterns, including driving time and availability of public transportation;
2. (2) the availability of existing hospice care and services; and
3. (3) other factors identified by the health systems agencies.
(c) The factors and methodology to be utilized by the Public Health Council and/or the commissioner as appropriate, in estimating the public need for hospice, shall include, but need not be limited to, the following:
1. (1) An estimate shall be made of the number of cancer and noncancer terminally ill patients who would seek and be appropriate for hospice care in each planning area. Estimates will be based on the most current cancer mortality data compiled by the department's Bureau of Vital Statistics.
2. (2) The department shall estimate the number of cancer patients appropriate for hospice, based on the number of annual cancer deaths and the projection that 40 percent of such patients would seek and be appropriate for hospice.
3. (3) A number equal to 10 percent of the number of cancer patients determined appropriate for hospice care in paragraph (2) of this subdivision shall be added to such number of cancer patients to determine the total number of patients appropriate for hospice for each planning area. This total number will then be projected five years into the future based on the most current New York State Department of Commerce population projections to estimate the number of individuals who would seek and be appropriate for hospice. For purposes of this methodology, it is assumed that cancer deaths per year per 1,000 population will remain constant for the period of the projection. This number will represent the number of projected hospice cases. A hospice case is defined as an individual admitted to a hospice.
4. (4) The total number of projected hospice cases shall be multiplied by 63 days to reflect the expected average length of stay in a hospice, in order to provide the expected number of patient days of hospice care. This number is then divided by 365 (days) to arrive at the expected average daily hospice caseload capacity to meet the need for hospice.
5. (5) The estimated need for hospice inpatient beds or dually certified hospice residence beds shall be equal to a number no greater than 20 percent of the expected average daily hospice caseload capacity divided by 0.85 to reflect an expected occupancy rate for hospice beds.
(d) A health systems agency may submit a plan to the department which proposes adjustments to hospice need estimates within its area. The Public Health Council and/or commissioner, as appropriate, with advice of the State Hospital Review and Planning Council, may reject or approve and implement all or a portion of the proposed adjustments based upon consideration of pertinent factors, including but not necessarily limited to the following:
1. (1) whether the proposed adjustments reflect consistency with the objectives and requirements of this section and section 709.1 of this Title; and
2. (2) whether the proposed adjustments identify special populations.
  (e)
3. (1) The hospice need estimates for each planning area, together with any approved adjustments determined under this section, shall constitute the estimate of public need for hospice for the defined area.
4. (2) Public need shall be deemed satisfied for a planning area when the daily average caseload capacity of existing and approved hospices is adequate to meet the estimate of public need for hospice for the planning area.
(f) In addition to meeting the other applicable provisions of this section, an applicant for initial certification shall be approved as meeting public need only if the applicant:
1. (1) agrees to serve the entire hospice planning area. Pursuant to the procedure set forth in section 709.1(c) of this Title, exceptions to serving the entire planning area may be permitted under special circumstances, including but not limited to those set forth in subparagraphs (i)- (iii) of this paragraph, provided that the hospice agrees to serve the entire alternate service area designated for such hospice. Such circumstances include:
  1. (i) geographic barriers and/or travel time which may impede service delivery to the entire planning area;
  2. (ii) proposals in which an applicant will focus its program of care in specific underserved areas which form only a portion of a planning area; and
  3. (iii) other factors identified by the local health systems agency;
2. (2) agrees to serve population groups in the planning area that have difficulty gaining access to appropriate hospice care due to minority status, age, medical history, case complexity or payment source; and
3. (3) agrees to provide charity care to medically indigent persons. For the purpose of this paragraph, charity care to the medically indigent shall mean the provision of hospice care and services at no charge or reduced charge to patients who are unable to pay full charges or any charges, are not eligible for covered benefits under title XVIII or XIX of the Social Security Act, are not covered by private insurance and whose household income is less than 200 percent of the Federal poverty level.
(g) For initial certification of proposed hospices and when public need is established herein, priority consideration will be given to applicants who demonstrate that they will maximize the use of appropriate hospice home care, outpatient and other community-based services.