Proposed amendments to the regulations governing the Certificate of Need (CON) process for Article 28 facilities, including general hospitals and nursing homes (the Proposal), were published by the New York State Department of Health (DOH) in the February 26, 2025 New York State Register. The Proposal aims to address the administrative barriers that providers face in the CON process. Public comments on the proposed regulations can be submitted up until April 28, 2025.
Notably, the Proposal seeks to amend the various cost thresholds which determine whether a CON application is required and the level of review required for a project. These cost thresholds have not changed since 2017.
- The current overall project cost thresholds that determine when certain projects require CON approval for general hospitals is $15 million and $6 million for all other Article 28 facilities. The Proposal seeks to increase those cost thresholds to $30 million for general hospitals and $8 million for all other Article 28 facilities – doubling the threshold for general hospitals. However, some projects, such as the conversion of beds or a change in the certified bed capacity, would still require a CON regardless of the cost.
A few other proposed updates to the cost thresholds for projects requiring a full CON review are as follows:
- For general hospitals requiring a full CON review, which includes a Public Health and Health Planning Council (PHHPC) recommendation, the cost thresholds are proposed to be raised from $30 million to the greater of $60 million or 10% of a facility’s operating costs, not to exceed $150 million.
- For all other Article 28 facilities requiring a full CON review, the updated cost thresholds would be projects that exceed the greater of $20 million (currently $15 million) or 10% of a facility’s operating costs, not to exceed $30 million.
As mentioned above, while all bed conversions to a higher level of care or changes in certified bed capacity require CON approval, the proposed regulations provide that only those that add or otherwise change more than 10% of existing beds will be subject to a full CON review, regardless of cost.
Interested parties can read the entirety of the proposed regulations here.
Should you have any questions regarding the above, or would like help in drafting comments on the Proposal, please contact the author, the Garfunkel Wild attorney with whom you regularly work, or email us at [email protected].