New York Releases Proposed Changes to Certificate of Need

December 3, 2014 | Health Services

On October 15th, the Department of Health (the “DOH”) published proposed revisions to the Certificate of Need (“CON”) requirements in the state. The proposed regulations would, among other things, no longer require non-clinical facilities obtain a CON prior to beginning construction projects. The comment period for the proposed regulations is now open.                       

The proposed regulations would remove some actions that currently need CON approval from the requirement.  In lieu of obtaining a CON, the entity making the changes must submit to the DOH a written notice of the construction prior to beginning the construction and a written certification of a licensed architect or engineer that the project meets applicable laws, codes, and regulations. Any Article 28 entity must also implement a policy to ensure patient safety during the construction that complies with DOH requirements as well as inform the DOH when the construction project has been completed. 

The actions previously requiring CON approval which would fall under the revised regulations include: (i) non-clinical construction projects, (ii) construction projects designed to correct cited deficiencies, so long as such project is limited only to correcting the deficiency, (iii) replacement of existing equipment with the same or substantially similar equipment, and (iv) repair or maintenance (including minor purchase) if the total cost for the project does not exceed six million dollars. 

The proposed regulations would also lower the standard of review for certain projects, requiring only a “limited review” standard. Limited review projects do not require approval from the Public Health and Health Planning Council, which generally means quicker approval and less involved submissions. Now added to the categories of projects requiring only limited review are projects under six million dollars not covered by the criteria above and either: (i) routine maintenance of residential rooms and common spaces in residential health care facilities, and (ii) heating, air conditioning, ventilation, plumbing, electrical, and other similar systems in clinical spaces (such as operating rooms, treatment and procedure rooms, special care units, and others) and common areas of residential health care facilities. However, routine maintenance or repairs of the systems are not subject to the limited review, and fall under the notice requirements set forth earlier in this article. 

The proposed regulations will benefit all Article 28 facilities equally, but they are generally held to be designed to facilitate improvements made with DSRIP funds by streamlining approval for more common projects that are likely to be occurring more frequently when DSRIP money is distributed. 

The proposed rule outlined above was issued in the October 15, 2014 edition of the New York State Register, available here. Per statute, there is a minimum 45-day comment period (the comment period closing on November 29, 2014), during which those interested in the proposed rule can provide the DOH with their comments and concerns regarding the proposed regulations, which the DOH will consider before finalizing the rules.

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