2023 New York Laws › PBH - Public Health › Article 28 - Hospitals › 2802 - Approval of Construction.

§  2802.  Approval  of  construction.  The construction of a hospital,
whether public or  private,  incorporated  or  not  incorporated,  shall
require the prior approval of the commissioner.
1.  An  application  for  such  construction  shall  be filed with the
department, together with such other forms and information as  shall  be
prescribed   by,  or  acceptable  to,  the  department.  Thereafter  the
department shall forward a copy  of  the  application  and  accompanying
documents  to  the  public  health  and  health planning council and the
health systems agency, if any, having geographical jurisdiction  of  the
area where the hospital is located.
1-a.  The  following  types  of  construction  projects  by a hospital
possessing  a  valid  operating  certificate  shall  not  require  prior
approval  pursuant  to  this section, provided that a written notice has
been submitted to the department together  with,  where  appropriate,  a
written  architect  and/or  engineering  certification  that the project
meets the applicable statutes, codes and regulations  specified  in  the
certification  statement  and,  where  required  by  the department, the
hospital shall  implement  a  plan  to  protect  patient  safety  during
construction:
(a)  correction  of cited deficiencies, provided that the construction
is limited to the correction of the deficiencies and is authorized by  a
plan of correction approved by the department;
(b)  repair  or  maintenance,  regardless  of  cost, including routine
purchases and the acquisition  of  minor  equipment  undertaken  in  the
course  of  a  hospital's inventory control functions; provided that for
projects under this paragraph with a total cost of  up  to  six  million
dollars, no written notice shall be required;
(c) non-clinical infrastructure projects regardless of cost including,
but  not  limited  to,  replacement  of  heating,  ventilating  and  air
conditioning systems, roofs, fire alarm and call bell  systems,  parking
lots and elevators;
(d)  one  for one equipment replacements regardless of cost, including
replacement of equipment  with  another  piece  of  equipment  used  for
similar purposes but employing current technology; and
(e)  other projects as specified in regulations adopted by the council
and approved by the commissioner.
1-b. The commissioner is  authorized  to  waive  any  requirement  for
pre-opening  certifications  and/or  surveys  for  construction projects
approved in accordance with this section.
2. The commissioner shall not act upon an application for construction
of a hospital until the public health and health  planning  council  and
the  health  systems  agency  have had a reasonable time to submit their
recommendations, and unless (a) the applicant has obtained all approvals
and consents required by law  for  its  incorporation  or  establishment
(including the approval of the public health and health planning council
pursuant  to the provisions of this article) provided, however, that the
commissioner  may  act  upon  an  application  for  construction  by  an
applicant  possessing a valid operating certificate when the application
qualifies for review without the recommendation of the council  pursuant
to  regulations adopted by the council and approved by the commissioner,
or as otherwise authorized by this section; and (b) the commissioner  is
satisfied  as  to  the public need for the construction, at the time and
place and under the circumstances proposed, provided  however  that,  in
the  case  of an application by a hospital established or operated by an
organization  defined  in  subdivision  one  of  section  four   hundred
eighty-two-b of the social services law, the needs of the members of the
religious  denomination  concerned,  for care or treatment in accordance

with their religious or ethical  convictions,  shall  be  deemed  to  be
public need.
2-a.  The council shall afford the applicant an opportunity to present
information  in  person  concerning  an  application  to   a   committee
designated by the council.
2-b.  Beginning  on  January  first, nineteen hundred ninety-four, and
each year thereafter, a complete application  received  between  January
first  and  June  thirtieth  of  each  year  shall  be  reviewed  by the
appropriate health systems agency and the department  and  presented  to
the  public  health  and  health  planning council for its consideration
prior to June thirtieth of the following year and a complete application
received between July first and December thirty-first of each year shall
be reviewed by the appropriate health systems agency and the  department
and  presented  to  the  public  health  and health planning council for
consideration prior to December thirty-first of the following year.
2-c. An application for the relocation of  long-term  ventilator  beds
from  one residential health care facility to another residential health
care facility with common ownership shall be subject, as  determined  by
the  commissioner,  to either an administrative or limited review by the
department. Common ownership  shall  be  found  when  the  ownership  or
controlling  interest  in  the  operator of each residential health care
facility is the same, provided the percentage of ownership  interest  of
each  owner  may vary between the two facilities but must meet the whole
in common ownership. For purposes of this subdivision, the commissioner,
when making a determination of  public  need,  may  consider  access  to
long-term ventilator beds in the affected portions of the health systems
region,  and  the quality of care provided at the facilities with common
ownership. At no time shall an application submitted  pursuant  to  this
subdivision result in a change in the total combined number of long-term
ventilator   and   residential  health  care  facility  beds,  including
residential  health  care  facility  beds  converted  from   transferred
long-term  ventilator  beds,  operated by the two facilities with common
ownership.
3. Subject to the provisions of paragraph (b) of subdivision two,  the
commissioner in approving the construction of a hospital shall take into
consideration  and  be empowered to request information and advice as to
(a) the availability of facilities or  services  such  as  preadmission,
ambulatory  or  home  care  services  which may serve as alternatives or
substitutes  for  the  whole  or  any  part  of  the  proposed  hospital
construction;
(b)  the need for special equipment in view of existing utilization of
comparable equipment at the time and place and under  the  circumstances
proposed;
(c)   the  possible  economies  and  improvements  in  service  to  be
anticipated from the operation of joint central services including,  but
not  limited  to  laboratory, research, radiology, pharmacy, laundry and
purchasing;
(d) the adequacy of financial resources and sources of future revenue;
and
(e) whether the facility is currently in substantial  compliance  with
all applicable codes, rules and regulations, provided, however, that the
commissioner  shall  not  disapprove  an application solely on the basis
that the facility is not currently in  substantial  compliance,  if  the
application is specifically:
(i) to correct life safety code or patient care deficiencies;
(ii)  to correct deficiencies which are necessary to protect the life,
health, safety and welfare of facility patients, residents or staff;
(iii) for replacement of equipment that no longer meets the  generally
accepted  operational  standards existing for such equipment at the time
it was acquired; and
(iv) for decertification of beds and services.
3-a.  Review  of  applications  from  hospitals  in epidemic areas and
hospitals serving state correctional facilities to renovate  or  provide
for  capital  improvement  for  the purpose of controlling the spread of
tuberculosis infection may be approved by the commissioner, who  to  the
extent  practicable  may,  but  shall  not  be required to, consider the
recommendations of the health systems agency and the public  health  and
health  planning  council for applications for which he grants approval.
In such cases the commissioner shall take further measures necessary  to
expedite departmental reviews for such approval.
3-b.  Review  of applications from rural hospitals seeking approval in
the swing bed  program,  authorized  pursuant  to  section  twenty-eight
hundred  three of this article, may be approved by the commissioner who,
to the extent practicable,  may  consider  the  recommendations  of  the
respective  health systems agency. In such cases, the commissioner shall
take further measures necessary to  expedite  departmental  reviews  for
such approval.
3-c.  An  application shall state the proposed site or location of the
proposed construction. Where the applicant changes the site or  location
after  approval  of  the  application,  the commissioner may, subject to
regulations under this article, approve the change upon a  finding  that
the  change  is in the best interest of the service area. In making such
determination, the commissioner may seek a review of the proposed change
by the public health and health planning council and the health  systems
agency having geographical jurisdiction.
4.  No government agency shall construct any hospital without securing
the  written  approval  of  the  commissioner  in  accordance  with  the
applicable requirements and procedures of the preceding subdivisions.
5.  If  the  commissioner  proposes  to  disapprove an application for
construction of a hospital, he shall afford the applicant an opportunity
to request a public hearing. The commissioner shall not take any  action
contrary  to the advice of the health systems agency until he affords an
opportunity to the agency  to  request  a  public  hearing  and,  if  so
requested, a public hearing shall be held.
6.  The  commissioner, on his own motion, may hold a public hearing on
an application for construction of a hospital.
7. (a) The commissioner shall charge to applicants for construction of
hospitals the following fees and charges for administrative services  so
as  to  recover  departmental  costs in performing these functions. Each
applicant for construction of a hospital shall pay to the department  an
application  fee  of  two  thousand  dollars,  provided,  however,  that
diagnostic and treatment  centers  designated  by  the  commissioner  as
safety net diagnostic and treatment centers, as defined in paragraph (c)
of  subdivision  sixteen  of  section twenty-eight hundred one-a of this
article, shall pay a fee of one thousand two hundred fifty dollars.
(b) At such  time  as  the  commissioner's  written  approval  of  the
construction   is  granted,  each  applicant  shall  pay  the  following
additional fee:
(i) for hospital, nursing home and  diagnostic  and  treatment  center
applications  that  require  approval by the council, the additional fee
shall be fifty-five hundredths of one percent of the total capital value
of the application, provided however that applications for  construction
of a safety net diagnostic and treatment center, as defined in paragraph
(c) of subdivision sixteen of section twenty-eight hundred one-a of this

article,  shall  be  subject  to  a  fee of forty-five hundredths of one
percent of the total capital value of the application; and
(ii)  for  hospital,  nursing home and diagnostic and treatment center
applications that do not require approval by the council, the additional
fee shall be thirty hundredths of one percent of the total capital value
of the application, provided however  that  safety  net  diagnostic  and
treatment   center   applications,   as  defined  in  paragraph  (c)  of
subdivision sixteen  of  section  twenty-eight  hundred  one-a  of  this
article,  shall  be  subject  to  a fee of twenty-five hundredths of one
percent of the total capital value of the application.
(c) The commissioner is  authorized  to  establish  reduced  fees  for
applications subject to limited review, as described in regulation, that
do not require review by the council.
(d)  The  fees  and  charges  paid  by  an  applicant pursuant to this
subdivision for any application for construction of a hospital  approved
in  accordance with this section shall be deemed allowable capital costs
in the determination of reimbursement rates established pursuant to this
article. The cost of such fees and  charges  shall  not  be  subject  to
reimbursement  ceiling  or  other penalties used by the commissioner for
the  purpose  of  establishing  reimbursement  rates  pursuant  to  this
article.  All  fees  pursuant  to  this  section shall be payable to the
department of health for deposit into the special revenue funds - other,
miscellaneous special revenue fund - 339, certificate of need account.