N.Y. Comp. Codes R. & Regs. tit. 10 § 600.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 600.3 - Amendments and modifications to applications

(a) A change to an application before the Public Health and Health Planning Council has approved or contingently approved the application is hereafter referred to as a revision; a change to an application which has been approved or contingently approved by the council but for which an operating certificate has not yet been issued shall be referred to as an amendment if it meets the criteria contained in subdivision (c) of this section, and shall be referred to as a modification approvable pursuant to subdivision (f) if it does not meet the criteria contained in subdivision (c) or does not meet the criteria in subdivision (e).

(b) An application made to the Public Health and Health Planning Council, pursuant to this Part, may be modified before the council has approved or contingently approved the application. Such modifications shall be made on appropriate forms supplied by the department and submitted to the council through the central office of the department in Albany and shall be governed by the following:

(1) any modification in the information contained in the original application must be accompanied by a satisfactory written explanation as to the reason such information was not contained in the original application;

(2) the department, when reviewing a competitive batch of applications, may establish deadlines pursuant to written notification for the submission of any modification to an application; and

(3) if a modification is submitted after any such deadline(s), the application shall be removed from consideration within the competitive batch being reviewed.

(c) After the Public Health and Health Planning Council has approved or contingently approved an application but prior to the issuance of an operating certificate, any change as set forth in paragraphs (1) through (3) of this subdivision shall constitute an amendment to the application, and the applicant shall submit the proposed amendment to the department's central office together with appropriate documentation explaining the reason(s) for the amendment and such additional documentation as may be required in support of such amendment. The amended application shall be referred to the health systems agency having geographic jurisdiction and the Public Health and Health Planning Council for their reevaluation and recommendations. The approval of the Public Health and Health Planning Council must be obtained for any such amendment. Each of the following shall constitute an amendment:

(1) a change in the number and/or type of beds and/or services, other than a reduction of service which would be subject to administrative review;

(2) a change in the location of the site of the construction if outside the facility's service area or adjacent service area; and

(3) any change in the applicant.

(d) For purposes of this section, the following terms shall have the following meanings:

(1) Total project cost means total costs for construction, including but not limited to costs for demolition work, site preparation, design and construction contingencies, total costs for real property, for fixed and movable equipment, architectural and/or engineering fees, legal fees, construction manager and/or cost consultant fees, construction loan interest costs, and other financing, professional and ancillary fees and charges. If any asset is to be acquired through a leasing arrangement, the relevant cost shall be the cost of the asset as if purchased for cash, not the lease amount.

(2) Total basic cost of construction means total project costs less the capitalized amount of construction loan interest and financing fees.

(e)

(1) If the commissioner, acting on behalf of the Public Health and Health Planning Council, determines that increases in total project costs or total basic costs of construction are due to factors of an emergency nature such as labor strikes, fires, floods or other natural disasters or factors beyond the control of the applicant, or modifications to the architectural aspects of the application which are made on the recommendation of the department, the applicant may proceed without the need for the application to be referred back to the health systems agency and the Public Health and Health Planning Council.

(2) If the applicant can document by evidence acceptable to the commissioner, acting on behalf of the Public Health and Health Planning Council, that increases in total project cost or total basic cost of construction were caused by delays in obtaining zoning or planning approvals which were beyond its control, the commissioner may permit review of the application to proceed without the need for the application to be referred back to the health systems agency and the Public Health and Health Planning Council pursuant to this Part. The evidence shall demonstrate clearly that the applicant had timely pursued the zoning or planning permits, has now obtained all such required permits and approvals, and is prepared to proceed with the project.

(3) If the applicant can document by evidence acceptable to the commissioner, acting on behalf of the Public Health and Health Planning Council, that increases in the total basic cost of construction were caused by inflation in excess of that estimated and approved in the application and that such inflation has affected the total basic cost of construction as a result of delays which were beyond the applicant's control, the commissioner may permit review of the application to proceed without the need for the application to be referred back to the health systems agency and the Public Health and Health Planning Council pursuant to this Part. The evidence shall demonstrate clearly that the increase in inflation exceeds that estimated and approved in the application, and that any delays resulting in such inflationary cost increases were beyond the applicant's control.

(f) Any modification submitted subsequent to the issuance of any approval by the Council which does not constitute an amendment pursuant to the provisions of this section shall require only the prior approval of the commissioner.

(g) Failure to disclose an amendment prior to the issuance of an operating certificate shall constitute sufficient grounds for the revocation, limitation or annulment of the approval of establishment.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 600.3

Amended New York State Register March 25, 2015/Volume XXXVII, Issue 12, eff.3/25/2015