N.Y. Public Health Law Section 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 Social Services Law § 482-B (Definitions)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 § 2803 (Commissioner and council)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 § 2801-A (Establishment or incorporation of hospitals)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 § 2801-A (Establishment or incorporation of hospitals)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 § 2801-A (Establishment or incorporation of hospitals)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.

Source: Section 2802 — Approval of construction, https://www.­nysenate.­gov/legislation/laws/PBH/2802 (updated Apr. 22, 2016; accessed Jun. 8, 2024).

2800
Declaration of policy and statement of purpose
2801
Definitions
2801‑A
Establishment or incorporation of hospitals
2801‑B
Improper practices in hospital staff appointments and extension of professional privileges prohibited
2801‑C
Injunctions
2801‑D
Private actions by patients of residential health care facilities
2801‑E
Voluntary residential health care facility rightsizing demonstration program
2801‑F
Residential health care facility quality incentive payment program
2801‑G
Community forum on hospital closure
2801‑H
Personal caregiving and compassionate caregiving visitors to nursing home residents during declared local or state health emergencies
2802
Approval of construction
2802‑A
Transitional care unit demonstration program
2802‑B
Health equity impact assessments
2803
Commissioner and council
2803‑A
Authority to contract
2803‑AA
Sickle cell disease information distribution
2803‑AA*2
Nursing home infection control competency audit
2803‑B
Uniform reports and accounting systems for hospital costs
2803‑C
Rights of patients in certain medical facilities
2803‑C‑1
Rights of patients in certain medical facilities
2803‑C‑2
Lesbian, gay, bisexual and transgender, and people living with HIV long-term care facility residents’ bill of rights
2803‑D
Reporting abuses of persons receiving care or services in residential health care facilities
2803‑E
Residential health care facilities
2803‑E*2
Reporting incidents of possible professional misconduct
2803‑F
Respite projects
2803‑G
Board of visitors in county owned residential health care facility
2803‑H
Health related facility
2803‑I
General hospital inpatient discharge review program
2803‑J
Information for maternity patients
2803‑J*2
Nursing home nurse aide registry
2803‑K
In-patient nasogastric feeding procedures
2803‑L
Community service plans
2803‑M
Discharge of hospital patients to adult homes
2803‑N
Hospital care for maternity patients
2803‑O
Hospital care for mastectomy, lumpectomy, and lymph node dissection patients
2803‑O‑1
Required protocols for fetal demise
2803‑P
Disclosure of information concerning family violence
2803‑Q
Family councils in residential health care facilities
2803‑R
Dissemination of information about the abandoned infant protection act
2803‑S
Access to product recall information
2803‑T
Preadmission information
2803‑U
Hospital substance use disorder policies and procedures
2803‑V
Lymphedema information distribution
2803‑V*2
Standing orders for newborn care in a hospital
2803‑W
Independent quality monitors for residential health care facilities
2803‑W*2
Disclosure of information concerning pregnancy complications
2803‑X
Requirements related to nursing homes and related assets and operations
2803‑Y
Provision of residency agreement
2803‑Z
Transfer, discharge and voluntary discharge requirements for residential health care facilities
2803‑Z*2
Antimicrobial resistance prevention and education
2804
Units for hospital and health-related affairs
2804‑A
State task force on clinical practice guidelines and medical technology assessment
2805
Approval of hospitals
2805‑A
Disclosure of financial transactions
2805‑B
Admission of patients and emergency treatment of nonadmitted patients
2805‑C
Every private proprietary nursing home having a capacity of eighty patients or more may have a licensed medical doctor in attendance, upo...
2805‑D
Limitation of medical, dental or podiatric malpractice action based on lack of informed consent
2805‑E
Reports of residential health care facilities
2805‑F
Money deposited or advanced for admittance to nursing homes
2805‑G
Maintenance of records
2805‑H
Immunizations
2805‑I
Treatment of sexual offense victims and maintenance of evidence in a sexual offense
2805‑J
Medical, dental and podiatric malpractice prevention program
2805‑K
Investigations prior to granting or renewing privileges
2805‑L
Adverse event reporting
2805‑M
Confidentiality
2805‑N
Child abuse prevention
2805‑O
Identification of veterans and their spouses by nursing homes, residential health care facilities, and adult care facilities
2805‑P
Emergency treatment of rape survivors
2805‑Q
Hospital visitation by domestic partner
2805‑R
Patients unable to verbally communicate
2805‑S
Circulating nurse required
2805‑T
Clinical staffing committees and disclosure of nursing quality indicators
2805‑U
Credentialing and privileging of health care practitioners providing telemedicine services
2805‑V
Observation services
2805‑W
Patient notice of observation services
2805‑X
Hospital-home care-physician collaboration program
2805‑Y
Identification and assessment of human trafficking victims
2805‑Z
Hospital domestic violence policies and procedures
2806
Hospital operating certificates
2806‑A
Temporary operator
2806‑B
Residential health care facilities
2807
Hospital reimbursement provisions
2807‑A
General hospital nineteen hundred eighty-six and nineteen hundred eighty-seven inpatient rates and charges
2807‑AA
Nurse loan repayment program
2807‑B
Outstanding payments and reports due under subdivision eighteen of section twenty-eight hundred seven-c, sections twenty-eight hundred se...
2807‑C
General hospital inpatient reimbursement for annual rate periods beginning on or after January first, nineteen hundred eighty-eight
2807‑D
Hospital assessments
2807‑D‑1
Hospital quality contributions
2807‑DD
Temporary nursing home stability contributions
2807‑E
Uniform bills
2807‑F
Health maintenance organization payment factor
2807‑FF
New York managed care organization provider tax
2807‑I
Service and quality improvement grants
2807‑J
Patient services payments
2807‑K
General hospital indigent care pool
2807‑L
Health care initiatives pool distributions
2807‑M
Distribution of the professional education pools
2807‑N
Palliative care education and training
2807‑O
Early intervention services pool
2807‑P
Comprehensive diagnostic and treatment centers indigent care program
2807‑R
Funding for expansion of cancer services
2807‑S
Professional education pool funding
2807‑T
Assessments on covered lives
2807‑U
Transfers for tax credits
2807‑V
Tobacco control and insurance initiatives pool distributions
2807‑W
High need indigent care adjustment pool
2807‑X
Grants for long term care demonstration projects
2807‑Y
Pool administration
2807‑Z
Review of eligible federally qualified health center capital projects
2808
Residential health care facilities
2808‑A
Liability of certain persons
2808‑B
Certification of financial statements and financial information
2808‑C
Reimbursement of general hospital inpatient services
2808‑D
Nursing home quality improvement demonstration program
2808‑E
Residential health care for children with medical fragility in transition to young adults and young adults with medical fragility demonst...
2808‑E*2
Nursing home ratings
2809
Residential health care facilities
2810
Residential health care facilities
2811
Discounts and splitting fees with medical referral services
2812
Construction
2813
Separability
2814
Health networks, global budgeting, and health care demonstrations
2815
Health facility restructuring program
2815‑A
Community health care revolving capital fund
2816
Statewide planning and research cooperative system
2816‑A
Cardiac services information
2817
Community health centers capital program
2818
Health care efficiency and affordability law of New Yorkers (HEAL NY) capital grant program
2819
Hospital acquired infection reporting
2820
Home based primary care for the elderly demonstration project
2821
State electronic health records (EHR) loan program
2822
Residential care off-site facility demonstration project
2823
Supportive housing development program
2824
Central service technicians
2824*2
Surgical technology and surgical technologists
2825
Capital restructuring financing program
2825‑A
Health care facility transformation program: Kings county project
2825‑B
Oneida county health care facility transformation program: Oneida county project
2825‑C
Essential health care provider support program
2825‑D
Health care facility transformation program: statewide
2825‑E
Health care facility transformation program: statewide II
2825‑F
Health care facility transformation program: statewide III
2825‑G
Health care facility transformation program: statewide IV
2825‑H
Health care facility transformation program: statewide V
2825‑I
Healthcare safety net transformation program
2826
Temporary adjustment to reimbursement rates
2827
Plant-based food options
2828
Residential health care facilities
2828*2
Essential support persons allowed for individuals with disabilities during a state of emergency
2829
Nursing homes
2830
Surgical smoke evacuation
2830*2
Regulation of the billing of facility fees

Accessed:
Jun. 8, 2024

Last modified:
Apr. 22, 2016

§ 2802’s source at nysenate​.gov

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