Certificate of Need (CON) Overview

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Like many other states, New York has an extensive CON process in place for healthcare services and facilities. Winning approval for a CON application is often a time consuming and difficult undertaking. RPC provides clients with a team of consultants with experience working on CON projects.

When working on a CON project, RPC can prepare the entire CON application or sections of the application as the client prefers. When the client is defining the project and deciding whether to apply, RPC can help assess the market and regulatory situation to determine the relative likelihood of success for a project. RPC not only completes a thorough review of the competitive environment, market need and financial analysis, but also works seamlessly with the client’s staff, architects, engineers, and other outside consultants to create a solid CON application.

RPC is led by Ron Luke, JD, PhD, who has prepared CON applications and presented testimony in CON hearings since 1981 in over 20 states.  RPC’s work on CON projects includes the opening of new acute care hospitals, hospices, physical rehabilitation and psychiatric specialty hospitals, ambulatory surgery centers and nursing homes, the relocation and addition of beds, and acquiring major medical equipment. Working with RPC during the CON process gives the applicant the advantage of a skilled, experienced team that can provide expert advice and produce an effective CON application.

State Agencies

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New York State Department of Health (DOH)
The DOH oversees the CON process and encompasses all of the entities below.

Bureau of Project Management, Office of Health Systems Management
The staff of this office provides support for all CON activities and related agencies.

Bureau of Project Management
Office of Health Systems Management
NYS Department of Health
433 River Street, 6th Floor
Troy, New York 12180-2299
(518) 402-0911

The Public Health and Health Planning Council (PHHPC)
The PHHPC reviews all proposals subject to full review. PHHPC makes decisions concerning changes in ownership and the establishment of new facilities, home care agencies and hospice programs. It makes recommendations to the Commissioner of Health concerning major construction, renovation, major medical equipment acquisition, and the addition of beds and specialized services.

Commissioner of Health
The Commissioner holds final decision-making power over applications related to major construction, renovation, major medical equipment acquisition, and the addition of beds and specialized services.

Services that Require CON

New York State law mandates the Certificate of Need Program as a review process for the establishment, ownership, construction, and modification of certain health care services.  In general, a CON must be filed before new facilities are built, existing facilities are renovated, major medical equipment is acquired, services are added or deleted, or facility ownership is transferred.  Hospices seeking to modify their service areas must also apply for a CON. The following institutions are required to participate in the CON process:

  • Hospitals
  • Nursing Homes
  • Diagnostic and Treatment Centers
  • Ambulatory Surgery Centers
  • Midwifery Birth Centers
  • Certified Home Health Agencies
  • Long-Term Home Health Care Programs
  • Hospices
  • Adult Care Facilities (which has a different CON process than other facilities)
  • Adult Day Health Care Programs
  • Specific Behavioral Health and Substance Use Programs associated with the Office of Mental Health, Office of Mental Retardation & Developmental Disabilities, and the Office of Alcoholism and Substance Abuse Services

Certificate of Need Process Milestones

  1. Review Local Planning Initiatives
    Applicants must speak with local DOH staff to inquire about local issues to consider in the CON application.
  2. Determine Type of Review
    There are three types of CON application reviews: full review, administrative review, and limited review. The type of review depends on the cost of the project, service, and proposed action (e.g., change in ownership, new construction, renovation, etc.). The PHHPC reviews all proposals subject to full review and has final decision-making authority over changes in ownership and over the establishment of new facilities, home care agencies and hospice programs. Projects under administrative review do not require a recommendation from the PHHPC. Proposals eligible for a limited review do not require a recommendation from the PHHPC. These include proposals with a total project cost up to $6 million ($15 million for hospitals) with certain requests.
  3. Application Filing
    There are 24 CON Schedules. Each type of CON requires very specific forms and schedules. The forms that must be completed for a given CON application vary, depending on the type of applicant, the nature of the proposed action or activity for which approval is requested, and the type of review. Applicants submit electronic versions of their applications via the New York State Electronic Certificate of Need (NYSE-CON) website.
  4. Public Comment
    The DOH accepts written comments on CON proposals from interested stakeholders. Parties may also comment in person on CONs under full review at public meetings of the Public Health and Health Planning Council’s Establishment and Project Review Committee. Comments unrelated to the official CON review criteria are not considered (for example, historical preservation).
  5. Review and Decision
    Depending on the nature of the CON, it is submitted for review to the DOH and/or the HSA. Recommendations from these agencies are then submitted to the Public Health and Health Planning Council. The PHHPC makes recommendations to the Commissioner of Health concerning major construction projects, service changes, and equipment acquisition for healthcare facilities and homecare agencies. The Commissioner then issues a decision on these projects. The PHHPC makes decisions on the establishment and transfer of ownership of health care facilities, home care agencies and hospice programs.
  6. Appeal Process for an Administrative Review
    If the Commissioner disapproves the application, it is referred to the SHRPC for a full review. The SHRPC makes its recommendation, but the Commissioner retains final decision-making authority.

What criteria are used to review a CON?

Certificate of need applications are reviewed against the following criteria:

Public Need

  • Population demographics
  • Service utilization patterns
  • Epidemiology of selected diseases and conditions
  • Access to services and addressing existing barriers that prevent patients from receiving the proposed services
  • Plan to serve Medicaid beneficiaries and the uninsured
  • Impact on existing providers

Financial Feasibility

  • Ability to fund the project
  • Reasonableness of the budget
  • Expenses
  • Projected revenues
  • Current financial status
  • Ability to retire debt

Character and Competence

  • Experience and past performance in operating a health care service
  • Records of violations
  • Compliance with laws and practices pertinent to applicant’s professional experience

Construction
Buildings must comply with Title 10, Chapter V, Article 2 (Parts 710-717) of the Official Compilation of the Rules and Regulations of the State of New York.

Certificate of Need Application Filing Fee

All applicants pay a processing fee. Applications that involve construction and are subject to administrative or full review require an additional fee. The construction fee for CON applications that involve construction runs between 0.25% and 0.55% of total capital costs (this fee is paid only for  approved proposals). More information on application and construction fees can be found at:
http://www.health.ny.gov/facilities/cons/more_information/fees.htm

Additional Sources

(links good as of January 2022)

New York Department of Health, Certificate of Need Program
https://www.health.ny.gov/facilities/cons/

CON Statute (Part 600 to Section 600.11)
http://w3.health.state.ny.us/dbspace/NYCRR10.nsf/
56cf2e25d626f9f785256538006c3ed7?SearchView

CON Rules (Article 28)
https://law.justia.com/codes/new-york/2015/pbh/article-28/

State Health Plan
Strengthening New York’s Public Health System for the 21st Century
https://www.health.ny.gov/press/reports/century/ph_21stcent.pdf

CON Application Fees
https://www.health.ny.gov/facilities/cons/more_information/fees.htm

CON Application Search
http://www.health.ny.gov/facilities/cons/nysecon

CON Application Forms
https://www.health.ny.gov/facilities/cons/more_information/schedules.htm

Contact RPC Consulting
Should you or your client need an expert team to help you with the New York Certificate of Need Process (CON) please contact Dr. Ron Luke at 512-371-8166.

Disclaimer: The information on this page has been compiled by RPC in June 2010 and updated in January 2022 based on sources believed to be reliable. Where possible we have had the material reviewed by state CON officials or others knowledgeable of the state’s CON program. The information is not offered as legal advice. A state may change its rules, forms and procedures at any time and RPC offers no assurance that the information will be correct on the date it is viewed. Therefore the reader is urged to use this information only as a starting point for any CON application and to speak with state officials or seek legal or consulting advice early in the process.