New York is one of eight states to require CONs within all six broad categories—hospital beds, beds outside hospitals, equipment, facilities, services and emergency medical transport. New York’s CON regime is easily the most complex in the country, with 203 distinct CON requirements. This could be because in 1964, it was the first state to adopt a CON law. Today, New York’s CON requirements are spread throughout dozens of statutes and regulations. And some CON requirements are simply listed on the Department of Health’s (DOH) website with no specific corresponding statutory or regulatory authorization. New York further complicated the CON process by creating three different levels of CON review for applications, depending on the type of facility, service or equipment. Some of New York’s CON requirements are as specific as requiring a clinic to obtain a CON before it may change its hours of operation. Another requires home health agencies to obtain a CON before eliminating nutrition services. New York is also the only state that applies its CON laws to dentists’ offices.
On March 12, 2020, Governor Cuomo suspended several laws and regulations to allow for the expansion of healthcare services, including CON requirements, to allow facilities to increase bed capacity and to allow for the construction of temporary hospital locations. Exec. Order No. 202.1 (Mar. 12, 2020). Then, on March 23, 2020, Governor Cuomo suspended further laws to allow hospitals to increase capacity and allow ambulances to provide services outside their normal service areas. Exec. Order. No. 202.10 (Mar. 23, 2020). On March 19, 2020, DOH clarified that providers must seek emergency approval to expand or create additional sites for testing, triage or screening. Emergency approvals, however, appeared to be notices submitted to regional DOH offices explaining that a facility or provider needed to expand capacity to respond to the pandemic. See DOH, Emergency Approvals for COVID-19 (REVISED) (Mar. 19, 2020) (“Upon notification to the appropriate DOH Regional Office Department, providers are authorized to immediately move forward with the project.”).
In New York, CON applications can be submitted at any time. The fee for a CON application ranges from $500 to $3,000, depending on whether the application is subject to full, administrative or limited review. See DOH, CON Application Fees (Sept 2010). Full review means an application is reviewed by both DOH staff and the Public Health and Health Planning Council (PHHPC) before the Commissioner of Health makes the final decision to approve or disapprove, while applications subject to administrative or limited review are reviewed by only Department of Health staff before they go to the Commissioner. N.Y. Comp. Codes R. & Regs. tit. 10, § 710.1(c)(3), (5). The PHHPC has final decision-making authority for changes in ownership or the establishment of new healthcare facilities, home health agencies and hospice programs. N.Y. Pub. Health Law §§ 2801-a(1), 3606(1), 4004(1). Competitors cannot intervene in the application process, and the applicant may only request a public hearing if the Commissioner proposes to disapprove a project. N.Y. Comp. Codes R. & Regs. tit. 10, § 710.2(e)(2). DOH has also published a flowchart describing the process.