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  state  hospital  review and planning council and the  health systems agency having geographical jurisdiction of the area where  the hospital is located.    * NB Effective until December 1, 2010    * 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.    * NB Effective December 1, 2010    * 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:    (a) correction of cited deficiencies, provided that:    (i) the construction is limited to the correction of the  deficiencies  and is authorized by a plan of correction approved by the department;    (ii)  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    (iii) the hospital shall implement a plan to  protect  patient  safety  during construction; and    (b)  other projects as specified in regulations adopted by the council  and approved by the commissioner.    * NB Effective December 1, 2010    * 2.  The  commissioner  shall  not  act  upon  an   application   for  construction  of a hospital until the state hospital review and 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 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;  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-a 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.    * NB Effective until December 1, 2010    * 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 obtainedall 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;  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.    * NB Effective December 1, 2010    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 state hospital review and 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 state hospital  review  and  planning  council  for  consideration prior to December thirty-first of the following year.    * NB Effective until December 1, 2010    * 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.    * NB Effective December 1, 2010    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 state hospital  review and  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.    * NB Effective until December 1, 2010    * 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.    * NB Effective December 1, 2010    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 state hospital review and planning council and the health systems  agency having geographical jurisdiction.    * NB Effective until December 1, 2010    * 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.    * NB Effective December 1, 20104.  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.