N.Y. PBH Law § 2802 — New York Code / Act PBH / Article 28 / Section 2802
Approval of construction
Status: in_force

§ 2802. Approval of construction. The construction of a hospital,\nwhether public or private, incorporated or not incorporated, shall\nrequire the prior approval of the commissioner.\n  1. An application for such construction shall be filed with the\ndepartment, together with such other forms and information as shall be\nprescribed by, or acceptable to, the department. Thereafter the\ndepartment shall forward a copy of the application and accompanying\ndocuments to the public health and health planning council and the\nhealth systems agency, if any, having geographical jurisdiction of the\narea where the hospital is located.\n  1-a. The following types of construction projects by a hospital\npossessing a valid operating certificate shall not require prior\napproval pursuant to this section, provided that a written notice has\nbeen submitted to the department together with, where appropriate, a\nwritten architect and/or engineering certification that the project\nmeets the applicable statutes, codes and regulations specified in the\ncertification statement and, where required by the department, the\nhospital shall implement a plan to protect patient safety during\nconstruction:\n  (a) correction of cited deficiencies, provided that the construction\nis limited to the correction of the deficiencies and is authorized by a\nplan of correction approved by the department;\n  (b) repair or maintenance, regardless of cost, including routine\npurchases and the acquisition of minor equipment undertaken in the\ncourse of a hospital's inventory control functions; provided that for\nprojects under this paragraph with a total cost of up to six million\ndollars, no written notice shall be required;\n  (c) non-clinical infrastructure projects regardless of cost including,\nbut not limited to, replacement of heating, ventilating and air\nconditioning systems, roofs, fire alarm and call bell systems, parking\nlots and elevators;\n  (d) one for one equipment replacements regardless of cost, including\nreplacement of equipment with another piece of equipment used for\nsimilar purposes but employing current technology; and\n  (e) other projects as specified in regulations adopted by the council\nand approved by the commissioner.\n  1-b. The commissioner is authorized to waive any requirement for\npre-opening certifications and/or surveys for construction projects\napproved in accordance with this section.\n  2. The commissioner shall not act upon an application for construction\nof a hospital until the public health and health planning council and\nthe health systems agency have had a reasonable time to submit their\nrecommendations, and unless (a) the applicant has obtained all approvals\nand consents required by law for its incorporation or establishment\n(including the approval of the public health and health planning council\npursuant to the provisions of this article) provided, however, that the\ncommissioner may act upon an application for construction by an\napplicant possessing a valid operating certificate when the application\nqualifies for review without the recommendation of the council pursuant\nto regulations adopted by the council and approved by the commissioner,\nor as otherwise authorized by this section; and (b) the commissioner is\nsatisfied as to the public need for the construction, at the time and\nplace and under the circumstances proposed, provided however that, in\nthe case of an application by a hospital established or operated by an\norganization defined in subdivision one of section four hundred\neighty-two-b of the social services law, the needs of the members of the\nreligious denomination concerned, for care or treatment in accordance\nwith their religious or ethical convictions, shall be deemed to be\npublic need.\n  2-a. The council shall afford the applicant an opportunity to present\ninformation in person concerning an application to a committee\ndesignated by the council.\n  2-b. Beginning on January first, nineteen hundred ninety-four, and\neach year thereafter, a complete application received between January\nfirst and June thirtieth of each year shall be reviewed by the\nappropriate health systems agency and the department and presented to\nthe public health and health planning council for its consideration\nprior to June thirtieth of the following year and a complete application\nreceived between July first and December thirty-first of each year shall\nbe reviewed by the appropriate health systems agency and the department\nand presented to the public health and health planning council for\nconsideration prior to December thirty-first of the following year.\n  2-c. An application for the relocation of long-term ventilator beds\nfrom one residential health care facility to another residential health\ncare facility with common ownership shall be subject, as determined by\nthe commissioner, to either an administrative or limited review by the\ndepartment. Common ownership shall be found when the ownership or\ncontrolling interest in the operator of each residential health care\nfacility is the same, provided the percentage of ownership interest of\neach owner may vary between the two facilities but must meet the whole\nin common ownership. For purposes of this subdivision, the commissioner,\nwhen making a determination of public need, may consider access to\nlong-term ventilator beds in the affected portions of the health systems\nregion, and the quality of care provided at the facilities with common\nownership. At no time shall an application submitted pursuant to this\nsubdivision result in a change in the total combined number of long-term\nventilator and residential health care facility beds, including\nresidential health care facility beds converted from transferred\nlong-term ventilator beds, operated by the two facilities with common\nownership.\n  3. Subject to the provisions of paragraph (b) of subdivision two, the\ncommissioner in approving the construction of a hospital shall take into\nconsideration and be empowered to request information and advice as to\n(a) the availability of facilities or services such as preadmission,\nambulatory or home care services which may serve as alternatives or\nsubstitutes for the whole or any part of the proposed hospital\nconstruction;\n  (b) the need for special equipment in view of existing utilization of\ncomparable equipment at the time and place and under the circumstances\nproposed;\n  (c) the possible economies and improvements in service to be\nanticipated from the operation of joint central services including, but\nnot limited to laboratory, research, radiology, pharmacy, laundry and\npurchasing;\n  (d) the adequacy of financial resources and sources of future revenue;\nand\n  (e) whether the facility is currently in substantial compliance with\nall applicable codes, rules and regulations, provided, however, that the\ncommissioner shall not disapprove an application solely on the basis\nthat the facility is not currently in substantial compliance, if the\napplication is specifically:\n  (i) to correct life safety code or patient care deficiencies;\n  (ii) to correct deficiencies which are necessary to protect the life,\nhealth, safety and welfare of facility patients, residents or staff;\n  (iii) for replacement of equipment that no longer meets the generally\naccepted operational standards existing for such equipment at the time\nit was acquired; and\n  (iv) for decertification of beds and services.\n  3-a. Review of applications from hospitals in epidemic areas and\nhospitals serving state correctional facilities to renovate or provide\nfor capital improvement for the purpose of controlling the spread of\ntuberculosis infection may be approved by the commissioner, who to the\nextent practicable may, but shall not be required to, consider the\nrecommendations of the health systems agency and the public health and\nhealth planning council for applications for which he grants approval.\nIn such cases the commissioner shall take further measures necessary to\nexpedite departmental reviews for such approval.\n  3-b. Review of applications from rural hospitals seeking approval in\nthe swing bed program, authorized pursuant to section twenty-eight\nhundred three of this article, may be approved by the commissioner who,\nto the extent practicable, may consider the recommendations of the\nrespective health systems agency. In such cases, the commissioner shall\ntake further measures necessary to expedite departmental reviews for\nsuch approval.\n  3-c. An application shall state the proposed site or location of the\nproposed construction. Where the applicant changes the site or location\nafter approval of the application, the commissioner may, subject to\nregulations under this article, approve the change upon a finding that\nthe change is in the best interest of the service area. In making such\ndetermination, the commissioner may seek a review of the proposed change\nby the public health and health planning council and the health systems\nagency having geographical jurisdiction.\n  4. No government agency shall construct any hospital without securing\nthe written approval of the commissioner in accordance with the\napplicable requirements and procedures of the preceding subdivisions.\n  5. If the commissioner proposes to disapprove an application for\nconstruction of a hospital, he shall afford the applicant an opportunity\nto request a public hearing. The commissioner shall not take any action\ncontrary to the advice of the health systems agency until he affords an\nopportunity to the agency to request a public hearing and, if so\nrequested, a public hearing shall be held.\n  6. The commissioner, on his own motion, may hold a public hearing on\nan application for construction of a hospital.\n  7. (a) The commissioner shall charge to applicants for construction of\nhospitals the following fees and charges for administrative services so\nas to recover departmental costs in performing these functions. Each\napplicant for construction of a hospital shall pay to the department an\napplication fee of two thousand dollars, provided, however, that\ndiagnostic and treatment centers designated by the commissioner as\nsafety net diagnostic and treatment centers, as defined in paragraph (c)\nof subdivision sixteen of section twenty-eight hundred one-a of this\narticle, shall pay a fee of one thousand two hundred fifty dollars.\n  (b) At such time as the commissioner's written approval of the\nconstruction is granted, each applicant shall pay the following\nadditional fee:\n  (i) for hospital, nursing home and diagnostic and treatment center\napplications that require approval by the council, the additional fee\nshall be fifty-five hundredths of one percent of the total capital value\nof the application, provided however that applications for construction\nof a safety net diagnostic and treatment center, as defined in paragraph\n(c) of subdivision sixteen of section twenty-eight hundred one-a of this\narticle, shall be subject to a fee of forty-five hundredths of one\npercent of the total capital value of the application; and\n  (ii) for hospital, nursing home and diagnostic and treatment center\napplications that do not require approval by the council, the additional\nfee shall be thirty hundredths of one percent of the total capital value\nof the application, provided however that safety net diagnostic and\ntreatment center applications, as defined in paragraph (c) of\nsubdivision sixteen of section twenty-eight hundred one-a of this\narticle, shall be subject to a fee of twenty-five hundredths of one\npercent of the total capital value of the application.\n  (c) The commissioner is authorized to establish reduced fees for\napplications subject to limited review, as described in regulation, that\ndo not require review by the council.\n  (d) The fees and charges paid by an applicant pursuant to this\nsubdivision for any application for construction of a hospital approved\nin accordance with this section shall be deemed allowable capital costs\nin the determination of reimbursement rates established pursuant to this\narticle. The cost of such fees and charges shall not be subject to\nreimbursement ceiling or other penalties used by the commissioner for\nthe purpose of establishing reimbursement rates pursuant to this\narticle. All fees pursuant to this section shall be payable to the\ndepartment of health for deposit into the special revenue funds - other,\nmiscellaneous special revenue fund - 339, certificate of need account.\n