N.Y. Comp. Codes R. & Regs. tit. 10 § 709.1

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

Section 709.1 - Determination of public need pursuant to section 2802 of the public health law

(a) The factors for determining public need for health services and medical facilities shall include, but not be limited to:

(1) the current and projected population characteristics of the service area, including relevant health status indicators and socio-economic conditions of the population;

(2) normative criteria for age and sex specific utilization rates to correct for unnecessary utilization for health services;

(3) standards for facility and service utilization, comparing actual utilization to capacity, taking into consideration fluctuation of daily census for certain services, the geography of the service area, size of units, and specialized service networks;

(4) the patterns of in and out migration for specific services and patient preference or origin;

(5) the need that the population served or to be served has for the services proposed to be offered or expanded, and the extent to which all residents in the area, and in particular low- income persons, racial or ethnic minorities, women, handicapped persons, and other underserved groups and the elderly, will have access to those services;

(6) in cases involving the reduction or elimination of a service including those involving the relocation of a facility or service, the extent to which need will be met adequately and the effect of the reduction, elimination, or relocation of the service or facility on the ability of the low-income persons, racial and ethnic minorities, women, handicapped person, and other underserved groups, and the elderly, to obtain needed health care;

(7) the contribution of the proposed service or facility in meeting the health needs of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services (for example, low-income persons, racial and ethnic minorities, women, and handicapped persons). For the purpose of determining the extent to which the proposed service or facility will be accessible to such persons, following shall be considered:

(i) the extent to which medically underserved populations currently use the applicant's services in comparison to the percentage of the population in the applicant's service area which is medically underserved, and the extent to which medically underserved populations are expected to use the proposed services if approved;

(ii) the performance of the applicant in meeting its obligation under the applicable civil rights statutes prohibiting discrimination on the basis of race, color, national origin, handicap, sex and age;

(iii) the extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; and

(iv) the extent to which the applicant offers a range of means by which a person will have access to its services.

(b) The evaluative procedure for review of public need pursuant to section 2802 of the Public Health Law shall include, but not be limited to:

(1) description of proposal as submitted by applicant for construction;

(2) identification of use rates in the service area for the service or services involved;

(3) identification of current and projected user population of the service, area;

(4) identification of resulting estimate of future quantitative need as projected for a period of five years from last complete calendar year reported;

(5) identification of existing service(s) which are the same as those proposed by the applicant available in the service area;

(6) identification of existing service(s) which are the same as those proposed by the applicant which will be available to meet future need in the service area;

(7) identification of service(s) which are the same as those proposed by the applicant and which have been approved for construction but are not in operation in the service area;

(8) identification of resulting resource(s) available in service area five years in future to meet need;

(9) identification of percent of need met for proposed service(s);

(10) description of the current utilization for all service(s) which are the same as those proposed by applicant in the service area;

(11) description of the current utilization for allied or alternate services in the service area;

(12) description of any migration patterns for health care in the service area;

(13) description of any evidence of inappropriateness of placement in the service area for the subject service(s) and related service(s); and

(14) description of the distribution of service(s) in relation to the population's distribution.

(c) The public need analysis for each proposal will include a determination of the appropriate service area. The county in which the construction is proposed shall be the service area, unless the commissioner, upon consideration of the advice of the State Hospital Review and Planning Council, determines that a service area other than the county is more appropriate. The applicant or the health systems agency may delineate a service area other than the county together with evidence in support of such delineation. After reviewing the evidence, the commissioner, upon consideration of the advice of the council, may determine that the proposed service area is not acceptable. In cases wherein a service area other than the county is being proposed, the following shall be considered:

(1) the patterns of in-and-out migration for specific services which are the same as those proposed by the applicant and patient preference or origin; and

(2) appropriateness of travel and referral patterns.

(d) Medical facilities shall be planned to achieve efficiency and economy of operation and care of high quality. In addition to the other pertinent provisions of this Part, the analysis to determine whether there is a public need for the proposed construction shall include consideration of additional factors as appropriate, including but not limited to the following:

(1) the condition of the facility's existing structures and equipment and the extent to which they are in compliance with the applicable standards of facility operation and construction under this Title;

(2) whether the architectural solutions proposed by the applicant to address the issues which are the subject of the application are:

(i) cost efficient with respect to the anticipated operational and capital cost impact of the proposal;

(ii) necessary to correct nonwaiverable requirements or standards of operation or construction under this Title;

(iii) necessary to address a problem or situation which will require corrective action within two years;

(3) [Reserved]

(4) whether the proposal is consistent with the applicant's long-range capital plan;

(5) whether the applicant will take advantage of opportunities for the efficient and economic reuse and recycling of existing physical plant resources, where feasible and appropriate;

(6) the life cycle incremental operational and capital cost effectiveness and efficiency of the proposal;

(7) whether the proposal could be adapted to accommodate changes in pertinent technology;

(8) whether the applicant will take advantage of opportunities to gain economies and improvements in the provision of services by entering into appropriate arrangements for sharing facilities, services or equipment with other facilities; and

(9) whether there are alternative methods or solutions available, which are more efficient, based on capital and operating costs, to address the subject problem or situation that will nevertheless ensure the provision of a level and quality of care and service that is in compliance with pertinent Federal and State statutes, rules and regulations.

(e) Any application for construction wherein a determination of public need is made pursuant to this section shall be subject to the following:

(1) The commissioner may, during the processing of an application, propose to disapprove the application solely on the basis of a determination of public need in advance of his consideration of the questions of the adequacy of financial resources, sources of future revenue and the character and competence of the applicant without, however, waiving his right to consider such criteria at a later date.

(2) In the event the commissioner upon the recommendation of the State Hospital Review and Planning Council proposes to disapprove an application solely on the basis of a lack of public need and the applicant then requests a hearing, the commissioner may direct the completion of the other required by Public Health Law, section 2802, the results of which shall be presented to the State Hospital Review and Planning Council for recommendations, which reviews may then be included as grounds for the proposed disapproval to be considered at the hearing. If the commissioner directs the completion of such reviews, a copy of the report containing the results of the reviews shall be mailed to the applicant at least 60 days prior to the date set for hearing.

(3) In the event the commissioner proposes to disapprove an application solely on the basis of no public need and the State Hospital Review and Planning Council does not concur with such proposed disapproval, the application shall be returned to the department without a formal recommendation. The commissioner shall then direct the completion of the other reviews required by Public Health Law, section 2802, and shall return the application to the State Hospital Review and Planning Council for its formal recommendation.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 709.1